ML21173A166

Hnmcp Report and NRC Staff Response

ML21173A166
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Issue date:	06/16/2021
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PUBLICATION OF HARVARD NEGOTIATION AND MEDIATION CLINICAL PROGRAM (HNMCP) REPORT, MOVING TOWARD A FRAMEWORK FOR CONTESTED HEARINGS IN THE LICENSING OF ADVANCED REACTORS, PREPARED FOR THE NRC DECEMBER 2020 AND NRC STAFF RESPOSE NRC Staff Response to HNMCP Report and Enclosed Report U.S. Nuclear Regulatory Commission June 2021

INTRODUCTION The NRC staff retained the Harvard Negotiation and Mediation Clinical Program (HNMCP) for the semester of fall 2020 to evaluate ways in which the NRC could improve upon its existing contested hearing process for advanced reactors in a way that is more resource- and time-efficient than the existing process, consistent with principles of good regulation"independence, openness, efficiency, clarity, and reliabilityand the NRCs dedication to working effectively with all stakeholders, clearly communicating its requirements, and providing regulatory information and feedback in a timely manner (see HNMCP Report at 5, enclosed).

A description of the reports five recommendations and the NRC staffs next steps planned in response to each recommendation are provided below.

NRC STAFF RESPONSE TO HNMCP REPORT RECOMMENDATIONS Recommendation 1. Focus on and strengthen the NRCs culture of independence, transparency, and neutrality toward intervenors and industry members through rigorous internal training and simplified public-facing resources.

a. Implement training to help NRC staff members more effectively navigate the complexities and challenges of their various roles in the organization.

b. Create and publicize user-friendly guides to demystify the process for contesting advanced reactor applications.

The NRC staff agrees with both parts (a) and (b) of Recommendation 1. The NRC staff believes that training opportunities for the NRC staff would benefit the NRCs efforts communicating and implementing the processes and procedures associated with contested hearings. The NRC staff also agrees that user-friendly guides, such as an infographic and associated explanation outlining details of the contested hearing process would help improve general understanding of the contested hearing process.

The NRC staff plans to develop these training and communication materials to implement Recommendation 1.

Recommendation 2. Institute a collaborative public engagement process to encourage early identification and resolution of issues.

a. Facilitate discussions between industry members, intervenors, and NRC staff to identify and resolve issues early.

b. Encourage joint fact-finding between industry members, intervenors, and the NRC.

The NRC currently has an Alternative Dispute Resolution (ADR) policy statement (57 Fed. Reg. 33,687 (Aug. 14, 1992)) and a voluntary process for ADR in its rules of procedure at 10 CFR § 2.338.

Nevertheless, the NRC staff explored several options in connection with Recommendation 2a.

Remind the public of the Commissions ADR policy statement and the availability of existing tools by updating and clarifying the NRCs public website (e.g., https://www.nrc.gov/about-nrc/alt-dispute-resolution/nrc-programs.html).

Propose an update to the ADR policy statement to reflect experience gained and lessons learned since its issuance in 1992.

Propose a periodic meetings process via Commission order directing presiding officers to include a requirement in their scheduling orders for contested licensing proceedings that the parties ii

regularly meet (after a hearing is granted) and submit joint letters or motions to the licensing board reporting on the results of their meetings.

Propose a Commission-established pilot program for a prehearing request ADR opportunity modeled on the NRCs early or pre-investigation ADR program for discrimination. Information about this program is available at https://www.nrc.gov/about-nrc/regulatory/enforcement/adr/pre-investigation.html Propose a Commission-established pilot or rulemaking for the use of the ADR process to resolve National Environmental Policy Act compliance contentions instead of the 10 CFR part 2 adjudicatory process.

After exploring these options and considering the availability of resources, the NRC staff decided that the best option is to remind the public of the Commissions ADR policy statement and the availability of existing tools by updating and clarifying the NRCs public website. The NRC staff may consider other options in the future, depending upon the availability of resources, and may seek additional input from the public at that time.

The NRC staff does not plan further action on Recommendation 2b. The NRCs existing processes provide flexibility for the parties to engage in discussions to identify and resolve issues early. For example, the parties may voluntarily pursue joint fact-finding; however, there may be limits to the NRC staffs ability to participate in such efforts.

Recommendation 3. Move the deadline for filing contentions until after the NRC staff have finished the Safety Evaluation Report and the Environmental Impact Statement.

Implementation of this recommendation would require rulemaking. Because the NRC is not considering rulemaking to amend 10 CFR part 2 at this time, the NRC does not plan any action in response to this recommendation. The NRC has considered the timing of contention submissions in the past. A discussion of the NRCs historical consideration of this issue is available in Background Material on NRC Adjudications for the January 31, 2013 Commission Meeting on Public Participating in NRC Regulatory Decision-Making, Enclosure 1: The History of Nuclear Regulatory Commission Standing and Contention Admissibility Standards Promoting Effective and Efficient Public Participation (ADAMS Accession No. ML13009A258).

Recommendation 4. Continue to require that contested hearings be conducted in-person, on a live record, whenever practicable.

The NRC staff agrees; the existing rules of practice in 10 CFR Part 2 accommodate this practice.

Recommendation 5. Institute or enforce NRC deadlines for issuing decisions in contested hearings.

This is not something the NRC staff can readily pursue. Deadlines have been identified in the model milestones in 10 CFR part 2, appendix B, and presiding officers establish deadlines in case-specific scheduling orders. The NRC staff does not plan any action in response to this recommendation.

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MOVING TOWARD A FRAMEWORK FOR CONTESTED HEARINGS IN THE LICENSING OF ADVANCED REACTORS PREPARED FOR THE U.S. NUCLEAR REGULATORY COMMISSION FENELLA MCLUSKIE & JOSHUA JOSEPH FREUNDEL HARVARD NEGOTIATION AND MEDIATION CLINICAL PROGRAM

CONTENTS Contents ...................................................................................................................................................... 2 Executive Summary .................................................................................................................................... 5 Glossary of Terms and Abbreviations ....................................................................................................... 9 Introduction ............................................................................................................................................... 11 About HNMCP ....................................................................................................................................... 11 About the NRC ...................................................................................................................................... 11 Acknowledgments ................................................................................................................................ 11 Project Background and Context .......................................................................................................... 12 Purpose and scope of project............................................................................................................. 12 Framework within which NRC operates ............................................................................................. 13 Current process for contested hearings on licensing LWRs ............................................................. 14 Past reforms of the contested hearing process ................................................................................ 15 Research Methodology ........................................................................................................................... 17 Interviews and observations ................................................................................................................ 17 Internal ................................................................................................................................................ 18 External ............................................................................................................................................... 19 Other ................................................................................................................................................... 19 Nuclear and regulatory research ....................................................................................................... 20 Dispute systems design theory ............................................................................................................. 20 Interview Findings ...................................................................................................................................... 22 Finding 1. The NRC has a wealth of institutional knowledge and dedicated public servants that are instrumental in enabling the NRC to perform its mission. .......................................................... 22 Finding 2. Meaningful public participation is viewed by nearly all stakeholders as essential to the reactor licensing process, but stakeholders disagree over the extent of the role the public should play. ............................................................................................................................................ 24

a. Engaging meaningfully with the public is a key part of the NRCs mission and is embraced by NRC staff.................................................................................................................... 24

b. Industry members support public participation but want to limit the publics role in the advanced reactor licensing process. ............................................................................................. 25

c. Intervenors want more opportunities for meaningful public participation in the advanced reactor hearing process. .............................................................................................. 26 Finding 3. There are high levels of distrust between stakeholder groups. ...................................... 28

a. Intervenors distrust the NRC. .................................................................................................... 28 2

b. Intervenors distrust advanced reactor technology.............................................................. 30

c. Industry members, and some NRC staff, do not trust intervenors to participate in the contested hearing process in good faith. ...................................................................................... 31 Finding 4. There is broad support among stakeholder groups for a simpler, more time- and cost-efficient contested hearing process for advanced reactors. ......................................................... 32 Finding 5. There is a widely shared desire for more clarity around the procedural rules governing the application and contention process. ....................................................................... 34 Findings summary .................................................................................................................................. 34 Recommendations ................................................................................................................................... 36 Recommendation Summary ............................................................................................................... 38 Recommendation 1. Focus on and strengthen the NRCs culture of independence, transparency, and neutrality toward intervenors and industry members alike through rigorous internal training and simplified public-facing resources. ................................................................. 38

a. Implement trainings to help NRC staff members more effectively navigate the complexities and challenges of their roles in the organization. .................................................. 39

b. Create and publicize simpler guides to demystify the process for contesting advanced reactors applications ........................................................................................................................ 40 Recommendation 2: Institute a collaborative process to encourage early identification and resolution of issues ................................................................................................................................. 42

a. Facilitate discussions between industry members, intervenors, and NRC staff to identify and resolve issues early..................................................................................................................... 43

b. Encourage joint fact-finding between industry members, intervenors, and the NRC. .... 47 Recommendation 3. Move the deadline for filing contentions until after the NRC staff have finished the Safety Evaluation Report and the Environmental Impact Statement. ...................... 48 Recommendation 4. Continue to require that contested hearings be conducted in-person, on a live record, whenever practicable. ................................................................................................ 51 Recommendation 5. Institute or enforce NRC deadlines for issuing decisions in contested hearings. ................................................................................................................................................. 52 Conclusion ................................................................................................................................................. 54 Appendix A................................................................................................................................................ 55 Bibliography ........................................................................................................................................... 57 3

MOVING TOWARD A FRAMEWORK FOR CONTESTED HEARINGS IN THE LICENSING OF ADVANCED REACTORS 4

EXECUTIVE

SUMMARY

Introduction On January 14, 2019, Congress passed the Nuclear Energy Innovation and Modernization Act1 (NEIMA). NEIMA codified efforts already underway at the U.S. Nuclear Regulatory Commission (NRC) to develop a new regulatory framework for licensing advanced reactors, a rulemaking effort commonly referred to as Part 53. The NRC retained the Harvard Negotiation and Mediation Clinical Program (HNMCP) to develop recommendations to improve the efficiency of the contested hearing process for advanced reactor license applications. This Report presents those recommendations, along with our findings and useful context.

Goals Our recommendations aim to suggest ways in which the NRC could develop a contested hearing process for advanced reactors that is more resource- and time-efficient than the existing process, consistent with principles of good regulation"independence, openness, efficiency, clarity, and reliability2and the NRCs dedication to working effectively with all stakeholders, clearly communicating its requirements, and providing regulatory information and feedback in a timely manner.3 Broadly, our recommendations seek to:

Simplify the contested hearing process to reduce confusion and costs; Increase early public participation in a collaborative process to focus intervenors, applicants, and NRC staff on contentious issues, resolve issues where possible, and reduce litigation; and Restore confidence and trust in the contested hearing process and in the NRC.

Challenges We quickly learned that licensing nuclear reactors is complex, technical, and in some segments of the public, highly controversial. Designing a process that effectively incorporates meaningful public participation4 presents a number of challenges:

Multiple stakeholders. For any given application, the contested hearing process involves the NRC, the applicant, the community that will host the reactor, intervenors, and the public at largeall with different interests.

Immense power differentials. Industry members are frequently better funded and better represented in politics and in the application process than intervenor groups, creating a power imbalance and mistrust.

1 Pub. L. No. 115-439 (2019).

2 U.S. NUCLEAR REGULATORY COMMISSION, NRC VISION AND STRATEGY: SAFELY ACHIEVING EFFECTIVE AND EFFICIENT NON-LIGHT WATER REACTOR MISSION READINESS 1 (Dec. 2016).

3 Id. at 1-2.

4 Throughout this report we use the term meaningful to describe participation that has a reasonable chance of affecting the outcome of a process.

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Technical complexity. The highly technical nature of nuclear reactors makes it difficult for laypeople to understand, and therefore to articulate challenges that will benefit the NRCs review of the technology being licensed.

Scientific uncertainty. Advanced reactors use new technology that has not been implemented in practice, meaning that even experts may not yet fully appreciate where the biggest risks lie.

Strong opposing viewpoints. Stakeholders in this process have fundamentally different values that seem difficult to reconcile: applicants seek licenses to operate nuclear power plants, while a vocal subset of intervenor groups seeks to prevent the licensing of any such plants.

A government entity that answers to different stakeholder groups. As a federal agency, the NRC is subject to congressional oversight and political pressure, but the NRCs purpose is to serve the public, including applicants, communities, and intervenorsand the interests of these groups frequently pull in opposite directions.

Stakeholders There are three major groups of stakeholders involved in the contested hearing process: the NRC, applicants, and intervenors.

The NRC. NRC technical staff play a fundamental role in the process, as it is the staff who review the application and respond to contentions and bring their technical expertise to bear in forming an opinion on whether the application is sufficient to make the necessary findings for licensing under the AEA. NRC attorneys represent and advise NRC staff in the discharge of their responsibilities in the application and contested hearing process. ASLBP judges and Commissioners decide contested hearings and appeals.

Applicants. We identified two major types of applicants: well-established industry players, with experience applying for large LWR licenses, and newer, smaller players aiming to leverage new, innovative technologies to build and operate advanced reactors.

Intervenors. These are members of the public who file contentions on the application, ranging from state attorney general offices, to environmental non-profits and other citizens advocacy groups and private citizens. There is wide variance in the sophistication, technical knowledge, and resources of intervenors.

Key Findings Finding 1. The NRC has a wealth of technical expertise and institutional knowledge and dedicated public servants that are instrumental in enabling the NRC to perform its mission.

Finding 2. Meaningful public participation is viewed by nearly all stakeholders as essential to the reactor licensing process, but stakeholders disagree over the extent of the role the public should play.

a. Meaningfully public engagement is a key part of the NRCs mission and is embraced by the NRC staff.

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b. Industry members support public participation but want to limit the publics role in the advanced reactor licensing process.

c. Intervenors want more opportunities for meaningful public participation in the advanced reactor hearing process.

Finding 3. There are high levels of distrust between stakeholder groups.

a. Intervenors distrust the NRC.

b. Intervenors distrust advanced reactor technology.

c. Industry members, and some NRC staff, do not trust intervenors to participate in the contested hearing process in good faith.

Finding 4. There is broad support among stakeholder groups for a simpler, more time- and cost-efficient contested hearing process for advanced reactors.

Finding 5. There is a widely shared desire for more clarity around the procedural rules governing the application and contention process.

Recommendations Recommendation 1. Focus on and strengthen the NRCs culture of independence, transparency, and neutrality toward intervenors and industry members through rigorous internal training and simplified public-facing resources.

a. Implement trainings to help NRC staff members more effectively navigate the complexities and challenges of their various roles in the organization.

b. Create and publicize user-friendly guides to demystify the process for contesting advanced reactor applications.

Recommendation 2. Institute a collaborative public engagement process to encourage early identification and resolution of issues.

a. Facilitate discussions between industry members, intervenors, and NRC staff to identify and resolve issues early.

b. Encourage joint fact-finding between industry members, intervenors, and the NRC.

Recommendation 3. Move the deadline for filing contentions until after the NRC staff have finished the Safety Evaluation Report and the Environmental Impact Statement.

Recommendation 4. Continue to require that contested hearings be conducted in-person, on a live record, whenever practicable.

Recommendation 5. Institute or enforce NRC deadlines for issuing decisions in contested hearings.

Limitations of this Report This Report is a preliminary conversation in the larger project of developing a contested hearing process for advanced reactor licensing. Our comments reflect the early stage at which the Part 7

53 process stands at the time of writing. While we have endeavored to be responsive to the interests we heard directly from stakeholder groups, we cannot make claims as to their universal truth. We also note that time constraints led us to offer somewhat generalized recommendations that we hope can serve as a framework for further refinement in the continued progression of the Part 53 rulemaking process set to run through 2024.

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GLOSSARY OF TERMS AND ABBREVIATIONS ADR: Alternative dispute resolution. Refers to a any procedure that is used to resolve issues in controversy, including, but not limited to, conciliation, facilitation, mediation, or arbitration.5 AEA: The Atomic Energy Act of 1954.

APA: The Administrative Procedure Act of 1946.

Applicant: An organization that has filed an application with the NRC for licensing the construction and/or operation of a nuclear reactor.

ASLBP: Atomic Safety and Licensing Board Panel.

CFR: Code of Federal Regulations.

COL: A combined construction permit and operating license, granted to Applicants in line with Part 52.

DSD: Dispute system design. Refers to the principles and practices involved in creating processes for preventing, managing, and resolving conflict.6 EIS: Environmental Impact Statement. The document prepared by NRC staff to evaluate the environmental impact of a proposed nuclear site. Serves as the legal environmental documents the NRC staffs environmental review.

ER: Environmental Report. The document prepared by an Applicant in support of its application, containing its assessment of the environmental impact of a proposed nuclear reactor.

Federal Register: A daily publication of the US federal government that issues proposed and final administrative rulemakings of federal agencies.

HNMCP: The Harvard Negotiation and Mediation Clinical Program.

Industry: The category of external stakeholders that support the licensing of nuclear reactors, including industry representative groups, vendors, developers, and plant operators.

Intervenors: An individual or group that has filed a successful petition to intervene in and raise challenges to a licensing application with the NRC. In this Report, the term is used generally to denote the category of external stakeholders that includes environmental attorneys and nonprofits, civic organizations, anti-nuclear groups, and state attorney general offices.

5 5 U.S.C. § 571.

6 LISA BLOMGREN AMSLER, JANET K. MARTINEZ & STEPHANIE E. SMITH, DISPUTE SYSTEM DESIGN: PREVENTING, MANAGING, AND RESOLVING CONFLICT 7 (2020).

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LWR: Large light-water reactor. Refers broadly to those nuclear plants composing the current U.S.

fleet, and whose operating technology is contemplated by the current licensing framework.

NEIMA: The Nuclear Energy Innovation and Modernization Act of 2019.

NEPA: The National Environmental Policy Act of 1969.

NRC: The Nuclear Regulatory Commission. Also referred to in this Report as the Agency.

OGC: The Office of the General Counsel, an office within the NRC.

Part [x]: Any chapter under Title 10 of the Code of Federal Regulations that sets forth the agency rules promulgated by the NRC in accordance with the APA. For example, when we refer to Part 2, we mean 10 CFR Part 2.

SAR: Safety Analysis Report. The document prepared by an applicant and submitted with its application, that details the safeguards and controls to be implemented in a proposed nuclear site.

SER: Safety Evaluation Report. The document prepared by the NRC to evaluate the safety claims presented in an SAR.

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INTRODUCTION About HNMCP Founded in 2006, HNMCP is an academic program at Harvard Law School focusing on cutting edge work in dispute systems design, negotiation, mediation, facilitation, and conflict engagement.7 Harvard Law School students take the clinical program for credit and typically engage in a one-semester-long project for a single client. Clients of the clinic have included U.S.

and international private corporations, non-profit organizations, government agencies, and community groups.8 About the NRC The NRC is an independent agency whose mission is to regulate civilian uses of nuclear technology, including the design, construction, and operation of nuclear reactors. The NRC was established under the Energy Reorganization Act of 1974,9 as a successor to the Atomic Energy Commission. It is headed by five Commissioners, appointed to five-year terms by the President and confirmed by the Senate.10 The AEA11 governs most of the NRCs activities and the regulations produced by the NRC is published in Title 10 of the CFR.

Acknowledgments The authors wish to thank HNMCP and the NRC for the opportunity to research and prepare this Report. We also extend our gratitude to the many individuals who gave freely of their time, patience, and insight to help this Report come together. Special thanks are owed to Maxine Keefe, our point of contact and overall coordinator in the NRCs Office of General Counsel, as well as Nanette Valliere, NRC technical staff member and our nuclear guru, both of whom went above and beyond to provide us with essential context and support in our work. Last, we give our deepest appreciation to our clinical instructor, Neil McGaraghan, for his invaluable guidance and steadfast dedication to helping us conceptualize what is written here.

7 HARVARD NEGOTIATION AND MEDIATION CLINICAL PROGRAM, http://hnmcp.law.harvard.edu/ (last visited Dec. 7, 2020).

8 See id.

9 Pub. L. No.93-438 (1974).

10 42 U.S.C. § 5841.

11 Pub. L. No.83-703 (1954).

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PROJECT BACKGROUND AND CONTEXT Purpose and scope of project On May 23, 2018, the NRC staff submitted a paper to the Commission about the licensing of advanced non-LWRs.12 This staff paper recommended the development of a new rule for reviewing the design and operation of advanced reactors. Specifically, it called for an optional, technology-inclusive, risk-informed, performance-based rule for reviewing the design and operation of advanced reactors.13 While the NRC staff proposed that the rulemaking initially be limited to the design and operating criteria for licensing a non-LWR, the NRC staff stated that it would consider whether it should include alternate licensing process[es] based on lessons learned from applying 10 CFR Part 52.14 This new rulemaking initiative became statutorily required in early 2019, when Congress passed NEIMA. The goal of the new rulemaking is to allow for the diversity of advanced technologies to be consolidated under a single licensing framework, one that is designed to maximize the efficiency of the process. Specifically, it directs the NRC to establish a technology-inclusive regulatory framework that encourages greater technological innovation.15 While the rulemaking process is still in its early stages, the NRC plans to complete Part 53 by 2024, three years ahead of the statutory deadline.16 In Summer 2020, the NRC engaged HNMCP to generat[e] ideas for how this new hearing process may be structured and tailored to efficiently meet the needs of the public, advanced reactor applicants, and other stakeholders.17 The NRC asked for a description of options for revision of/addition to such hearing processes, including the pros and cons of each option.18 12 U.S. NUCLEAR REGULATORY COMMISSION, ACHIEVING MODERN RISK-INFORMED REGULATION, SECY-18-0060, at 10 (May 23, 2018) (withdrawn by SRM-SECY-18-0060),

https://www.nrc.gov/docs/ML1811/ML18110A403.pdf [hereinafter ACHIEVING MODERN RISK-INFORMED REGULATION]; see also Maxine Segarnick & Sachin Desai, Preparing for Advanced Reactors: Exploring Regulatory and Licensing Reform, AM. BAR ASSN (Nov. 14, 2018).

13 ACHIEVING MODERN RISK-INFORMED REGULATION, Enclosure 5, at 10.

14 Id.

15 Nuclear Energy Innovation and Modernization Act (NEIMA) of 2018, Pub. L. No. 115-439, § 103(a) (2019).

16 Memorandum from Annette L. Vietti-Cook, Secretary to Margaret M. Doane Executive Director for Operations (Oct. 2, 2020) (SRM-SECY-20-0032),

https://www.nrc.gov/docs/ML2027/ML20276A293.pdf; see also Morgan Lewis, NRC Commissioners Accelerate Schedule for New Part 53 for Advanced Reactors, UP & ATOM BLOG (October 7, 2020), https://www.morganlewis.com/blogs/upandatom/2020/10/nrc-commissioners-accelerate-schedule-for-new-part-53-for-advanced-reactors.

17 HNMCP PROJECT PLAN: U.S. NUCLEAR REGULATORY COMMISSION 2 (2020).

18 Id. at 4.

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Based on the initial project description and our conversations with NRC staff and attorneys, we designed our inquiry and this report to address the following question:

What are some ways in which the contested hearing process for advanced reactors might be structured to maximize efficiencies of time, cost, and human resources, in service of the NRCs mission to ensure the safe use of radioactive materials for beneficial civilian purposes while protecting people and the environment?

Framework within which NRC operates The NRC licenses the construction and operation of nuclear power plants in the United States. In its organic statute, the NRC is tasked with establishing the requirements for licensing nuclear facilities, and for monitoring and enforcing operational compliance. Under this mandate, the NRC currently licenses ninety-four electricity-generating nuclear power reactors.19 In 2020, the agency has a full-time staff of roughly 3,600 people and a budget of $921.1 million.20 Until recently, 90% of its budget was recovered through fees collected from licensees and license applicants, and returned to the U.S. Treasury,21 though NEMA amended the fee recovery structure.

The NRC was created after its predecessor, the Atomic Energy Commission, was criticized for simultaneously promoting and regulate nuclear energy - a fox guarding the hen-house dilemma. The Energy Reorganization Act of 1974 established the NRC as an independent agency with the goal to regulate, and not to promote, nuclear energy.22 In support of its role as a neutral regulator, the NRC has established internal guidance for staff to abide by principles of good regulation, including that they be objective and unbiased in their assessment of license applications and contentions alike.23 The NRC holds a hearing on every application for a construction permit or combined license for a nuclear power reactor (known as mandatory hearings). The AEA also requires that an opportunity to request a hearing be made available to any person whose interest may be 19 Operating Reactors, U.S. NRC, https://www.nrc.gov/reactors/operating.html.

20 Congressional Budget Justification: Fiscal Year 2020 (NUREG-1100, Volume 35), U.S. NRC, https://www.nrc.gov/reading-rm/doc-collections/nuregs/staff/sr1100/v35/.

21 General Questions about NRC Fees, U.S. NRC, https://www.nrc.gov/about-nrc/regulatory/licensing/general-fee-questions.pdf.

22 J. SAMUEL WALKER & THOMAS R. WELLOCK, A SHORT HISTORY OF NUCLEAR REGULATION, 1946-2009, at 48-49 (Oct. 2010), https://www.nrc.gov/docs/ML1029/ML102980443.pdf.

23 Standard Review Plan for the Review of Safety Analysis Reports for Nuclear Power Plants: LWR Edition (NUREG-0800, Formerly issued as NUREG-75/087), U.S. NRC (last updated July 13, 2020),

https://www.nrc.gov/reading-rm/doc-collections/nuregs/staff/sr0800/index.html; see also Values, U.S. NRC, https://www.nrc.gov/about-nrc/employment/ethics/major-ethics-rules/impartiality.html (last updated Oct. 9, 2014). NRC employees, like all federal employees, also swear an oath in accordance with 5 U.S.C. § 3331 to uphold the Constitution and faithfully execute the duties of their office.

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affected by the proceeding for any license or construction permit (a contested hearing).24 These hearings are typically held before the Commission or the ASLBP.25 The NRC has broad discretion to determine the form these hearings will take, and the various requirements related to them.26 This broad latitude has been confirmed by the U.S. Court of Appeals for the D.C.

Circuit.27 The NRCs statutory mandate is to grant licenses to those applicants who meet the regulatory requirements for operating nuclear facilities.28 Congress has instructed the NRC, most recently under NEIMA, to report on options to conduct the application process, within the existing regulatory framework, as efficiently and speedily as is reasonably possible, consistent with the NRCs mission.29 Current process for contested hearings on licensing LWRs Currently, applicants for a license to construct and operate a nuclear power plant must follow the NRC rules of practice and procedure outlined in 10 CFR Part 2. These rules specify the procedure for filing and docketing applications, as well as the procedural rules for a contested hearing. While this Report does not directly address the current process, it is outlined here for two reasons. First, despite the broad scope granted us to consider a new contested hearing framework, we used the current process as a point of departure for thinking about how to meet the NRCs goals of improving efficiency and reducing costs. Second, a number of our findings and recommendations have implications for the current hearing process as well. Therefore, we begin with an outline of the current process, both for license applications overall and for the life of a contention specifically.30 A license application for a new nuclear power plant includes two reports, which correspond to two major areas of regulatory oversight: A Safety Analysis Report (SAR) and an Environmental Report (ER). These reports are typically developed following pre-application interactions with members of the NRCs technical staff. When an applicant has completed the application, it submits these reports and the other portions of the application. The technical staff then conducts an acceptance review to determine whether the application is complete. Upon finding that an application is complete, the NRC staff dockets a tendered application. In connection with this event (though occasionally some time later), the NRC will publish a notice in 24 Types of Hearings, U.S. NRC, https://www.nrc.gov/about-nrc/regulatory/adjudicatory/types-of-hearings.html (last updated January 19, 2018).

25 These are not on-the-record hearings. See 5 U.S.C. § 554.

26 Because these are informal hearings, they are not subject to the specific provisions detailed in the APA for formal, on-the-record hearings.

27 See Union of Concerned Scientists v. U.S. Nuclear Regulatory Commission, 920 F.2d 50 (D.C. Cir.

1990).

28 See AEA §§ 103, 185.

29 NEIMA, supra note 15 at § 103(b)(4)(C).

30 While there are some differences between applications prepared under Part 50 and those prepared under Part 52 of 10 CFR, these differences are not material to a summary of the Part 2 process. For the sake of this summary, we will assume the applicant seeks a COL under Part 52.

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the Federal Register advising the pubic that the application has been docketed and providing the public with an opportunity to file a petition to intervene and challenge the application.31 Members of the public may file intervention petitions that include demonstrations of standing for individual or organizational petitioners, as well as one or more contentions that describe the specific matters the petitioners wish to challenge.32 The contested hearing process is laid out in the figure that follows.

Figure 1: Contested Hearing Process Under Subpart L of 10 CFR Part 2 Licensing Board Application Initial schedule for determines Subpart submitted proceeding set for hearing Completeness Licensing Board determination is decides on Mandatory Presiding officer made: application admission of Disclosures Begin issues initial decision docketed contentions Application is New or Amended Intervenor files reply published in Federal Contentions may be Evidentiary hearing to responses Register Filed Statements of Deadline for filing Applicant and NRC Motions for Postition and contentions staff file responses summary disposition Written direct testimony filed Most contentions will challenge either information concerning the safety features presented in the SAR or information regarding environmental impacts presented in the ER.

Past reforms of the contested hearing process The publics opportunity to contest elements of a license application through a trial-like process dates back to the existence of the AEC.33 However, the contested hearing process has changed over the years, through guidance from the NRC and, more extensively, through the rulemaking process. Major regulatory overhauls to the contested hearing process were implemented in 1989, 2004, and 2012.

In 1989, the NRC raised the pleading standard to roughly the level it remains at today. Under the current standard, intervenors must provide a specific statement of the issue of law or fact to be raised or controverted in addition to a host of supporting documentation.34 This reform of the 31 See 10 CFR 50.43.

32 See 10 CFR 2.309.

33 AEA § 189.

34 10 C.F.R. § 2.309(f); see 54 Fed. Reg. 33180 (August 11, 1989).

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process coincided with the adoption of Part 52; both were done with an eye to reducing the amount of redundant litigation.35 The next major reform effort came in 2004. Among other changes, this rulemaking moved the format of standard contested hearings away from that familiar in U.S. courts, by replacing discovery with the current NRC practice of mandatory disclosures36 and providing that, in the hearing, only the presiding officer can cross-examination witnesses.37 This rule also expanded the application of the heightened pleading standard, and instituted certain structural changes to further streamline the hearing process.38 The most recent significant changes came in 2012, when the NRC corrected some errors from the 2004 rulemaking and made other changes to further promote fairness, efficiency, and openness in NRC adjudicatory proceedings.39 Of note, the NRC clarified and streamlined the standards for filing contentions after the expiration of the initial filing deadline.40 While we understand that Part 53 and possible changes to Part 2 for contested hearings for advanced reactor are not expected to apply to large LWRs, these past reforms to the existing contested hearing process offer context to consider how a new contested hearing process for advanced reactors might depart from the current process.

35 See Steven G. Burns, Reformed and Reforming: Adapting the Licensing Process to Meet New Challenges, 9 Nuclear Law Bulletin 7, 11 (2017).

36 69 Fed. Reg. 2188 (January 14, 2004).

37 Id. at 2187.

38 Id. at 2188.

39 77 Fed. Reg. 46562 (August 3, 2012).

40 Id. at 46570-72 16

RESEARCH METHODOLOGY To collect information on the current contested hearing process and evaluate how the process might be altered for advanced reactors, we spoke with individuals who had experience with the current process, and did extensive research on designing optimal conflict resolution processes.

We relied on several methods: interviews of current stakeholders and outside experts; direct observation of public meetings; consultation with technical and regulatory staff at the NRC; review of primary documents about the technical and regulatory aspects of the NRCs work; and reference to case studies and secondary literature on best practices in dispute systems design (DSD).

Interviews and observations We observed public meetings led by NRC staff and the private planning meetings that preceded such meetings. While we were unable to observe a contested hearing, as none occurred during our project, what we did observe gave us some insight into the context in which the NRC staff and the public presently engage, which contributed to our ultimate findings.

We attended two public meetings organized and run by staff from the Offices of Nuclear Material Safety and Safeguards (NMSS) and Nuclear Reactor Regulation (NRR), in which the staff presented certain proposals for a new Part 53 licensing framework and solicited public feedback. In addition, select stakeholders on both the industry and intervenor sides were invited to give presentations. For example, Marc Nichol of the Nuclear Energy Institute and Ed Lyman of the Union of Concerned Scientists presented at the meeting held on September 22, 2020.

We interviewed various stakeholders to understand how the contested hearing process could be improved for advanced reactors. These interviews were designed around two specific goals:

information gathering and idea generation.

The NRC provided us with a list of possible organizations and individuals to contact. We spoke with many individuals from this list, and others not on the list who were recommended to us by interviewees. We say a bit more about each type of stakeholder below.

Over the course of the project, we conducted interviews with several categories of individuals.

These categories are laid out in the following table.

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Table 1: Types of Interviewees #

NRC Staff 5 Category A: Internal Stakeholders NRC Attorneys 3 Licensing Board and Commission Personnel 4 Established Industry Members 2 Industry New Industry Members 2 Industry Representatives 3 Category B: External Stakeholders Citizen groups/laypeople 3 Intervenors State AG Offices 1 Environmental Attorneys 3 Former Commissioners 3 Category C: Outside Experts Dispute Systems Design Practitioners 3 Internal NRC Technical Staff We interviewed five technical staff from the NRC to better understand how nuclear reactors work, how the contested hearing process works, and the role of the NRC in reviewing applications and responding to contentions and public comment.

NRC Attorneys We spoke with three NRC attorneys, who represent and advise NRC staff in the discharge of their responsibilities in the application and contested hearing process. We looked to these interviewees to gain insight about the NRCs mission, the purpose and role of the contested hearing process within this mission, and the challenges faced by their clients (i.e., the technical staff). Several also had in-depth knowledge of the previous revisions to the contested hearing process, how they had come about, and to what effect.

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Licensing Board and Commission Personnel We spoke with one representative of the licensing board and four members of the Commissioners offices. As the parties making the contested hearing decisions, it was important we speak with these individuals, to see how they approached the process.

External Intervenors We interviewed seven intervenors from six different groups, including environmental attorneys, citizens groups, and current and former attorneys from two state attorney generals offices.

Intervenors were key stakeholders to interview since the purpose of the contested hearing process is to allow the public to have input in the licensing process. Intervenors vary in sophistication, and we tried to get a full range of intervenor groups. We spoke with a representative of state government, one of the best-funded types of intervenors. At the other end of the spectrum, we spoke with two individuals from a citizen group, and one other layperson, who have no scientific or legal expertise, and who rely on donations for their funding.

It is important to note that the views of these intervenors do not represent the view of the public as a whole. Everyone we interviewed had some experience opposing the licensing of a nuclear power plant, or another proceeding involving a nuclear power plant, and so our interviewees do not form a representative cross-section of the public as a whole. Rather, they represent views of a subset of the public that has actually interacted with the licensing process.

Applicants We interviewed seven members of industry from three different companies or groups: one established industry member, one new industry member, and one industry representative group.

This group ensured that we had access to people (i) with extensive experience in the nuclear industry, (ii) with direct experience with contested hearings for large LWRs, and (iii) from newer companies that were new to nuclear. Some of our interviewees had experience with advanced reactors and some did not.

Other Former Commissioners At the suggestion of the NRC, we spoke with three former NRC commissioners, who provided us with much of the context that situates this Report. In particular, each former commissioner had a wealth of knowledge on the development of the current hearing process, past attempts to revise the hearing process and what obstacles those attempts encountered. They also provided feedback on some of our preliminary recommendations, thus serving in some capacity the dual goals of information gathering and idea generation.

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DSD experts Finally, we interviewed three experts with consulting practices centered around complex dispute systems design in the energy and environmental space. These interviews focused primarily on the goal of idea generation, as we presented many of our preliminary findings and relied on these individuals broad experience to help concretize and clarify the recommendations that are detailed in this report. Their feedback is used extensively, and some of their publications are included in the bibliography that concludes this Report.

Nuclear and regulatory research At its heart, the NRCs work is about regulating a specific technology and its various (peaceful) uses. Much of our background work involved understanding the technologies that underlie the safe and effective operation of nuclear reactors, and, in particular, the ways that these technical aspects are evaluated during the licensing process. As neither of us possess this sort of technical expertise, we undertook a crash course in order to gain a technical understanding sufficient for us to provide our best work. This was especially important in light of the directive that the new licensing requirements for advanced reactors be technology inclusive (or technology neutral) and performance-based. We met extensively with NRC technical staff to understand nuclear reactor technology and how the NRC evaluates the technology. We consulted written materials that were recommended to us by the staff and that we found in our own research.

We also undertook to gain a working knowledge of the regulatory structure that guides the NRC, delimited by the current rules, notably those in Title 10 Part 2 of the Code of Federal Regulations (CFR), and by the various statutes that set the NRCs authority. We consulted agency and legislative materials, including 10 CFR Parts 2, 50, and 52, the AEA, and various volumes of the Federal Register. Many of these documents, as well as secondary sources detailing the regulatory framework, the licensing process, and the functions of rulemaking, were graciously provided to us by staff members at the NRC.

We have endeavored to limit our report to recommendations that could be implemented under existing law (i.e., without the need for Congressional action). And so, for example, while several stakeholders urged that the NRC consider establishing a source of funding to ease the burden on intervenors, this is barred by current law and thus we did not pursue the idea here.41 Dispute systems design theory Our recommendations are grounded in principles of DSD theory, which we found by reviewing the DSD literature and consulting with experts in the field. Among the questions we sought to answer were:

How do we create a more collaborative, participatory process among groups that see themselves as adversaries?

41 For more on this topic, see Appendix A.

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How do we create an efficient system in which different stakeholder groups are at odds with each other, perhaps intractably so?

What might be the role of alternative dispute resolution (ADR) in an adversarial process?

What processes can regulators implement to best earn and maintain the publics trust?

How can the value of efficiency best be balanced with sometimes competing values of participation and accuracy?

To guide us towards solutions, we looked to past case studies, in which similar frameworks were proposed and implemented in closely related regulatory fields. In addition, we looked for support to articles and white papers produced by established experts in the field and tested their conclusions against the particular facts that this Project addresses. A list of these materials can be found in the bibliography. We also spoke with three practitioners of DSD whose work focuses on the area of energy regulation and plant siting issues: Catherine Morris42 and Stacie Smith43 of the Consensus Building Institute, and Jonathan Raab44 of Raab Associates. Their valuable feedback and observations informed our thinking and our recommendations.

42 See Catherine Morris, CBI, https://www.cbi.org/about/bio/catherine-morris/ (last visited Dec. 7, 2020).

43 See Stacie Nicole Smith, CBI, https://www.cbi.org/about/bio/stacie-nicole-smith/ (last visited Dec. 7, 2020).

44 See Qualifications, RAAB ASSOCIATES, LTD., http://www.raabassociates.org/main/qualif.asp (last visited Dec. 7, 2020).

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INTERVIEW FINDINGS The findings presented here are based on our notes of the oral interviews we conducted with various stakeholders and outside parties, along with follow-up exchanges in the form of email correspondence. We note that there were no recordings made of our oral interviews and any quotations included in this section are taken from our interview notes. We are confident that they accurately represent the essence of what the individual relayed to us, though they may not be precisely verbatim.

Finding 1. The NRC has a wealth of institutional knowledge and dedicated public servants that are instrumental in enabling the NRC to perform its mission.

Knowledgeable and dedicated public servants It was clear from our interviews with NRC staff that they are exceptionally knowledgeable about nuclear technology, deeply committed to upholding the NRCs mission to protect public safety and the environment, and that they genuinely care about ensuring a fair hearing process.

Several members of the NRC technical staff emphasized the amount of work that goes into reviewing applications and writing the final EIS and SER. Our conversations showed that the NRC staff take contentions very seriously and devote considerable time to understanding and addressing them. One interviewee mentioned that the NRC staff go the extra mile in reviewing the contested parts of an application, in no small part because of the importance of demonstrating that the NRC takes intervenors concerns seriously. Several NRC staff also mentioned that they are happy to speak to industry members and intervenors alike about concerns, or to walk them through the process at a general level.

Difficult balance between neutrality and partiality The NRC has safeguards in place to ensure that its various roles are kept separate. For instance, there are strict rules against ex parte communications45 and strict rules preventing Commissioners from speaking about contested issues to staff who have worked on those issues.46 Nonetheless, we understood from our interviews, especially with one NRC attorney, that the NRC staff have a difficult balance to strike: when reviewing the merits of applications and contentions, staff is supposed to be independent and neutral, yet in front of the ASLBP, staff presents its position on the contention. The staff position on the contention(s) may align with either the position of the applicant or the intervenor, or the staff may take an entirely different position.47 For example, a staff position that an intervenors contention should not be admitted renders the staff and the intervenors essentially adversaries in the hearing. Likewise, if the staff 45 See 10 CFR § 2.347.

46 See 10 CFR § 2.348.

47 The applicant bears the burden of proof for safety issues, while, on the environmental side, the NRC staff bears the burden of showing compliance with NEPA.

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position is that a contention has merit and the applicant opposes that determination, the NRC staff and the applicant are, in effect, adversaries on that issue in the hearing. Thus, the staff could find itself aligned with and opposed to an intervenor and the applicant in the very same hearing, depending on the contention(s) at issue. That said, the same obligations to be impartial and neutral federal employees applies in an adversarial setting.

One OCG attorney we interviewed explained that navigating the line between neutral, unbiased assessor of claims, and an advocate for the staffs findings, is a challenge for the staff; counseling staff how to successfully navigate this complexity is a significant aspect of that OGC attorneys role. As we understand it, by the time of the hearing the technical staffs position is more often aligned with the applicant, because the staffs concerns about the application have been resolved by that point in other venues (e.g., staff requests for additional information (RAIs) from applicant). Intervenors complain that this phenomenonof the staff position on a contention aligning most often with the applicant positioncreates the appearance of a persistent bias toward applicants. An OGC attorney suggested that the extent to which NRC staff and intervenors are adversaries in contested hearings may actually have an adverse impact on the staffs ability to be unbiased at earlier stages in the contention process.

Transparency The NRC has a robust repository of publicly available information. One intervenor who had an otherwise bleak view of the process highly praised the NRC for its public filing system and commended the staff members who work to make this information publicly available. As several NRC staff noted, the scope and accessibility of the NRCs document repository is highly unusual among regulatory agencies.

In addition, the staff designate many of their public meetings as Category 3, meaning that public participation is actively sought in the discussion of the regulatory issues.48 Candid self-reflections and desire for continual improvement All the NRC staff we interviewed were also open and candid about shortcomings in the process, and open to entertaining suggestions for improving the process. Former Commissioners we spoke with also detailed the many times the NRC has engaged in self-reflection to improve its processes, and the many improvements and iterations that have led to the process as it stands today. This includes the previous overhauls of the contested hearing framework, outlined above.

ASLBPs independence Finally, we heard that the ASLBP successfully maintains its independence from the NRC staff.

Some intervenors, who otherwise felt the NRC was pro-industry,49 felt the Board was more neutral.

48 Enhancing Public Participation in NRC Meetings, 67 Fed. Reg. 36920 (May 28, 2002); see also NUCLEAR REGULATORY COMMISSION, 10 CFR PART 53: LICENSING AND REGULATION OF ADVANCED NUCLEAR REACTORS (Sept. 22, 2020), https://www.nrc.gov/docs/ML2025/ML20254A014.pdf.

49 See Finding 3.a.

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Some industry members complained that the Board would sometimes rephrase an intervenors contention if they felt it had merit but would otherwise fail the strict pleading standard. These industry members were frustrated by this practice, but we suspect it is this willingness to give intervenors (especially pro se intervenors) the benefit of the doubt that made intervenors view the ASLBP as more neutral than the NRC as a whole.

Finding 2. Meaningful public participation is viewed by nearly all stakeholders as essential to the reactor licensing process, but stakeholders disagree over the extent of the role the public should play.

a. Engaging meaningfully with the public is a key part of the NRCs mission and is embraced by NRC staff.

The ability to elicit public participation is a core element of the NRCs mission. As outlined under The NRC It would be wrong to cut the Approach to Open Government, the NRC considers public out of the process.

public involvement in, and information about, [the NRCs] activities to be a cornerstone of strong, fair - NRC Staff Member regulation of the nuclear industry.50 This point is also codified in several guiding statutes, including the APA.51 On the environmental side, a public comment period is required by NEPA, which, as implemented in Part 51, mandates that all draft or revised EISs will be accompanied by or include a request for comments on the proposed action.52 The AEA also mandates that public hearings be held: § 189(a) provides that in any proceeding under the Act, including the granting of a license or construction permit, the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding.53 The NRCs recognition of the importance of public Lack of public confidence is not participation is nowhere more clear than its Policy great for an agency. Statement on Enhancing Public Participation in NRC Meetings,54 which aimed to revis[e the NRCs] public

- NRC Staff Member meeting policy to enhance public participation in NRC meetings. The policy statement recognizes the NRCs 50 Public Participation, U.S. NRC, https://www.nrc.gov/public-involve/open/public-participation.html (last updated Aug. 15, 2017); see also 69 Fed. Reg. 2182 (Jan. 14, 2004).

51 See 5 U.S.C. § 552(a)(1).

52 10 CFR § 51.73.

53 AEA § 189(a).

54 Enhancing Public Participation at NRC Meetings, 67 Fed. Reg. 36920 (May 28, 2002),

https://www.nrc.gov/reading-rm/doc-collections/commission/policy/67fr36920.html.

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longstanding practice of providing the public with substantial information on its activities and of conducting business in an open manner55 and aims to further the NRCs strategic goal of increasing public confidence.56 Industry members support public participation but want to limit the publics role in the advanced reactor licensing process This was reflected in our interviews with NRC personnel, who noted that as an agency the NRC is accountable to the public and that transparency is a key value that the NRC seeks to uphold.

b. Industry members support public participation but want to limit the publics role in the advanced reactor licensing process.

Support for public participation Industry members support some level of public participation is valuable, mainly because it gives an opportunity for citizens to air concerns and add useful feedback that may not have been considered. A spokesperson for a new industry group expressed particular interest in engaging with the public. They described holding their own public meetings in order to educate the public on advanced nuclear technology and hear from individuals about their concerns and hesitations. They informed us that these meetings were well-attended by members of the public and they expressed their desire to communicate about their technology through other avenues.

They seemed to genuinely believe that their technology poses almost no safety risks, and that any contrary view stems from a misunderstanding of the technology. They were therefore eager to meet with the public and with intervenors to explain how their technology works and to address concerns. It is not clear how open the industry will be to genuinely listening to intervenors safety and environmental concerns but, at a minimum, there is keen interest in engaging with the public.

Public engagement surpasses requirements At the same time, several industry members also complained that they spend too much time and Public hearings exceed what is resources engaging with intervenors who seem more required by the AEA.

interested in subverting the licensing process than

- Industry Member genuinely finding common ground. They contend that there is no need to allow contested hearings on environmental issues, because the public comment period to review the environmental issues allows sufficient public participation. Along these lines, NEI has, in a white paper, suggested getting rid of trial-type adjudicatory hearings for environmental contentions, as they consider the hearing duplicative and unduly costly, in light of the opportunity for public comment.57 55 Id. at 36921.

56 Id.

57 NUCLEAR ENERGY INSTITUTE, RECOMMENDATIONS FOR STREAMLINING ENVIRONMENTAL REVIEWS FOR ADVANCED REACTORS 1-2 (Mar. 2020), https://www.nei.org/CorporateSite/media/filefolder/resources/reports-and-briefs/NEI-White-Paper-Recommendations-for-Streamlining-Environmental-Reviews-for-Advanced-Reactors.pdf (As part of the agencys effort to streamline NEPA compliance, the NRC should eliminate this duplicative hearing opportunity, as it applies to environmental issues, 25

Industry members felt frustrated at this two bites of the apple approach - once through public comments, and again in the contested hearing - because they believe it exceeds statutory requirements.58 ASLBP lenience One industry member also expressed dissatisfaction that the Board sometimes helps intervenors by suggesting ways to rephrase their contentions so as to allow them in. They think that because the NRC has already completed its extremely thorough review, the contentions should be solely the responsibility of the petitioner and the NRC should not tip the scales in their favor.

Advanced reactors Policymakers should look at the effect of this kind of regulatory Since industry members believe that advance reactors burden on the ability to deploy the are safer than large LWRs, they contend that it is safest technology that has been unnecessary to devote much time to contentions. They produced. specifically highlighted for us the ways technology has improved, including through the development of

- Industry member passive safeguards and the existence of better reactor cores that overheat in days, rather than hours. Because of this, industry members think that any contested hearing process should be even more streamlined in several ways, including removing in-person hearings and making it more difficult to have contentions admitted in the first instance.

c. Intervenors want more opportunities for meaningful public participation in the advanced reactor hearing process.

Intervenors believe that not only is public comment insufficient for the public to present concerns, but that the current contested hearing framework does not enable them to meaningfully When it comes to public comment, participate in the licensing process or have a [the NRC] can listen but they dont meaningful effect on the resolution of issues, and that have to take us into consideration.

this would become even more challenging for

- Intervenor advanced reactors. They thought that public comment alone would not give a sufficient opportunity to have their concerns heard, because (i) it is more difficult to marshal evidence to back up their contentions on a cold record and (ii) without a live hearing run by neutral adjudicators, there is no incentive for the staff and applicant to take their concerns seriously. In addition, intervenors doubted whether they would have the ability to appeal comments that received unsatisfactory responses.

Dissatisfaction with the current process given the various other vehicles for public participation on environmental issues already provided by NEPA and NRC regulations. Id. at 2.).

58 These industry members believed that a comment period would suffice as a hearing under AEA § 189(a).

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Intervenors described a number of challenges regarding the mechanics of the current contested hearing process. They argue that having to file contentions before the NRC staff had completed their review is unduly burdensome because it requires them to commit time and money to raising issues that the staff would have found anyway in its review. Additionally, until the staff completes the EIS and SER, the applicant is making frequent revisions to the application to address the staffs concerns (e.g., those concerns raised in RAIs). The rules provide only thirty days for an intervenor to file a petition to intervene on a new issue or seek leave to amend its existing petition. This short timeframe is inherently challenging: intervenors must constantly monitor the docket for revisions to the application, they must read hundreds of pages of highly technical information, and they must hire an expert on very little notice to help them understand the changes being made. We heard from intervenors that hiring an expert in such a short time frame often drives up costs even more, because experts charge higher fees for such last-minute requests.

Indeed, funding, generally, was a major issue. One intervenor pointed to a subsidy for this kind of work provided by the State of California and wished that there was a similar option available originating from the NRC itself. Additionally, this type of sporadic, unpredictable, time-intensive work requires lawyers and experts to drop everything they are doing for other clients - a luxury many professionals do not have. One interviewee said she had to stop working on contentions in NRC proceedings because she could not fit them around her other work.

Challenges are exacerbated for advanced reactors The challenges with eliciting meaningful public engagement What is the NRCs method are made starker by the introduction of new and varied for determining what safety technologies, as is the case with advanced reactors. One risk is posed by a reactor that intervenor expressed a sense of hopelessness at being able to no one has used yet?

learn and understand these new technologies to a level that is sufficient for them to be able to file contentions. Intervenors - Intervenor also noted that it will be more difficult, and probably require more experience, for them to hire technical experts who understand advanced reactor technologies, since not many such experts exist.

Perhaps in part because of the difficulties with public involvement as a result of a lack of understanding about the technologies, there is some concern among intervenors about the safety of advanced reactors, in particular those that have not been field-tested. Several individuals expressed uncertainty regarding how these new technologies were being evaluated and felt that the assurances about enhanced safety were unsupported and over-confident. This sentiment was not limited to intervenor groups; a number of NRC staff members also expressed doubts about how certain the new safety features would be, absent real field testing.

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Thoughts on how to have meaningful public participation for advanced reactors Intervenors want to see clear standards in place before We have to know what the advanced reactors are licensed, rather than the requirements are in order to have standards being determined as the application moves a focused dispute. along59. They make the obvious point that without clear standards members of the public (and, presumably, the

- Intervenor NRC) cannot gauge whether an application meets minimum safety requirements, and therefore cannot have meaningful input in the licensing process.

Intervenors were divided on whether the pleading standard should be lowered for advanced reactors (and some opined that it should be lowered for all reactors). One suggested lowering the initial standard to something akin to notice-pleading and bringing in experts to elaborate on the contentions at the hearing stage. Others felt that the specificity required under the current standard could serve the efficient resolution of claims, but only if the NRC were to reduce or eliminate other barriers to filing contentions. For example, several intervenors suggested that enlarging the time for filing contentions or providing funding for intervenors would justify the high pleading standard, for all kinds of reactors.

Intervenors strongly prefer oral hearings over conducting contested hearings on the papers. A couple of intervenors mentioned that the public hearing process is important for transparency and is an important opportunity for the community to feel that they are part in the process. They mentioned that hearings are often packed. One intervenor said that it would be helpful to add the option to attend hearings virtually, because the hearings are often in remote locations, but that this should absolutely not replace in-person hearings.

Finding 3. There are high levels of distrust between stakeholder groups.

a. Intervenors distrust the NRC.

Intervenors we interviewed broadly expressed that the The NRC needs to have enough NRC is biased towards industry and does not give them public confidence that people a meaningful opportunity to participate in the can go before them, lose, and not contested hearing process.60 This concern stemmed feel like theyve been cheated.

from both the mechanics of the process, which they believe make it extremely difficult to file contentions,61 - Intervenor 59 The pending Oklo application was cited as an example of standards being determined as the application moves along.

60 Intervenors did not distinguish between environmental and safety issues when speaking of their distrust for the NRC and applicants, and their dissatisfactions about the contested hearing process.

61 See Finding 2.b.

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and from the NRCs actions outside the contested hearing process.62 Every intervenor we interviewed perceives the NRC as pro-industry, though some are considerably more vehement in this view than others. More than one intervenor said we are wasting our time writing this report because the NRC is not interested in meaningful public participation and would ignore our recommendations to the extent that they make intervenors lives easier.

Although some intervenors say that public mistrust of the NRC is so deep-seated that it would be hard to alter that perception, others believe that the NRC can improve its standing with the public by making the process fairer and more balanced.

Pro-applicant A few intervenors noted that NRC staff members almost always side with the applicants, and nearly They [the NRC] do not respect the always conclude that a contention should be publics opinion. . . . Public rejected. In their view, the NRC never rejects a participation is an annoyance. . . .

license application: at most, they condition the They do not want the public to delay license on the applicant revising the application. In their predetermined approval of other words, intervenors believe every application reactors.

results in a license, unless the applicant voluntarily

- Intervenor withdraws from the process.

Other intervenors believe the NRC considers the applicants financial position when deciding whether to grant a license, and that the NRC is reluctant to deny a license if the denial would cause the applicant to suffer a financial loss. They cited the NRCs decision to license the Diablo Canyon reactor despite a fault line being discovered near the reactor site.

Lack of responsiveness to concerns Intervenors said they have informed the NRC of their Starting off trying to convince concerns about the difficulty of intervening, but that someone that there is a new day nothing came of it. Several intervenors mentioned dawning in nuclear power, and not they view public meetings as a perfunctory exercise respecting their legitimate concerns, is the NRC is obligated to run, and that nothing comes a showstopper for an open mind.

of them raising issues in these meetings. They say that in public meetings, rather than actually - Intervenor engaging the publics concerns, the NRC seeks to persuade of them of the safety of nuclear power and brushes aside or dismisses concerns.

62 To cite just one example, there is a perception that the NRC does not take its enforcement obligations seriously and turns a blind eye to infractions or imposes only minimal penalties.

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Weak enforcement Two intervenors opined that when the nuclear reactors were operational, the NRC did not enforce violations seriously enoughthat green level violations63 are given a slap on the wrist when any violation should be seriously enforced. In their view, this sort of laxity reflects a broader culture of preferential treatment of the industry that carries into the licensing process as well.

Bowing to political pressure Several intervenors stated that the NRC is deliberately The decks are stacked against seeking to revive a dying nuclear power industry. They environmental protection because stated that there is a political push to keep the nuclear money speaks a whole lot louder industry going, and that the NRC has political pressures than science. on it to license nuclear reactors, especially because industry can afford lobbyists to ensure politicians

- Intervenor supported nuclear power. Several intervenors explicitly stated that the NRC has been captured by industry.

b. Intervenors distrust advanced reactor technology.

Several intervenors have built up significant knowledge about If the game plan for these LWRs through their work intervening in the licensing meetings [about advanced proceedings for LWRs. But none that we spoke to have reactors] is to persuade, technical knowledge about advanced reactors, and none rather than to educate, it will felt confident not be well-received.

about their safety.

If the nuclear power industry wants a fresh start, they have to be able to - Intervenor Historical distrust deal with the downsides of their projects with the same zeal and Because they enthusiasm as the upsides. And be distrust the NRC and industry to begin with, transparent. intervenors also do not trust NRC and industry assurances that advanced reactors are safer than

- Intervenor LWRs. One mentioned that the NRC is always asking the public to put its trust in the latest new technology as the answer to safety and environmental concerns. This, intervenors say, sends the message that the NRC has concluded that the previous new technologies were not as safe as they were claimed to be.

63 See Enforcement Process Diagram, U.S. NRC, https://www.nrc.gov/about-nrc/regulatory/enforcement/enforce-pro.html (last updated Nov. 15, 2019).

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Outstanding concerns about nuclear power, generally A few intervenors stated they are concerned about the My ultimate goal is to stop effects of nuclear radiation in general, so even if advanced the licensing of reactors; my reactors are less likely to have a catastrophic meltdown, secondary goal is to ensure they are uncomfortable with the baseline radiation levels.

they are constructed in as safe Two intervenors also mentioned concerns with how nuclear and environmentally safe a waste would be safely disposed of, which made them way as possible.

uneasy around all nuclear technology, old or new.

- Intervenor Lack of transparency A complaint we heard repeatedly from intervenors was that they do not believe the NRC and nuclear industry are being transparent. They stated that the NRC speaks openly about the positives of nuclear power but is not upfront about the negatives. Several intervenors opined that public meetings with the NRC, or with industry, are more for public relations purposes than to provide substantive information. Many, though by no means all, intervenors with spoke with are skeptical about the value of meeting with advanced reactor applicants to discuss the substance of the technology.

Concerns about implementing a GEIS Intervenors fear that a more streamlined hearing process means that essential aspects of the application and contention process will be rendered obsolete. In particular, there is concern that the proposed Generic Environmental Impact Statement64 (GEIS) for advanced reactors will not adequately cover the idiosyncratic dangers that might arise at a specific site, and will frustrate the publics ability to raise legitimate environmental challenges. One intervenor recalled the problems that arose from using a GEIS for nuclear waste disposal at Yucca Mountain, where assumptions in the GEIS had to be amended after litigation. There is also a perception that the NRC uses the nuclear waste disposal GEIS as a shield against public participation, and a fear that a GEIS in the licensing process would be used the same way.

Intervenors are also concerned that the push for generic documents could be expanded to other areas of licensing as well.

c. Industry members, and some NRC staff, do not trust intervenors to participate in the contested hearing process in good faith.

Industry members and some NRC staff are skeptical that many intervenors have a genuine interest in improving perceived flaws in an application. They view intervenors as generally anti-nuclear, and believe many merely seek to use the contested hearing process to prevent nuclear reactors from being licensed.

64 See JEFFREY S. MERRIFIELD & REZA ZARGHAMEE, PILLSBURY, WHITE PAPER: ADVOCATING THE USE OF GENERIC ENVIRONMENTAL IMPACT STATEMENTS IN SUPPORT OF THE CONSTRUCTION AND OPERATION OF ADVANCED REACTORS (FEB. 19, 2019).

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More optimism among newer than older industry members I have never seen Established industry members who have been in the industry for a long intervenor be happy time are the most skeptical, with more than one stating that the vast that their contention majority of intervenors have a goal of preventing nuclear plants from is dismissed.

being licensed. The two individuals we spoke with from a newer nuclear company, who have very little experience with intervenors, - Industry are more optimistic, stating that they are very interested in speaking member with potential intervenors and explaining their technology.

Openness to early discussions with intervenors We dont want to be blindsided with a new issue when were 95% When asked whether they would consider meeting with of the way through the process. intervenors earlier in the process, most industry members expressed that they are not opposed to this in

- Industry member principle and that it would be a good idea if there were a genuine possibility of early resolution of an issue.

There is concern, though, that intervenors would use this meeting as another tool to stall the process, without any intention of reaching an agreement. Several industry members also pointed out that it would be difficult to separate out those who are genuinely interested in reaching agreement from those who seek to frustrate the process.

Finding 4. There is broad support among stakeholder groups for a simpler, more time- and cost-efficient contested hearing process for advanced reactors.

Efficient use of resources was one area in which there seems to be broad consensus: on some level almost everyone agrees that this is a great opportunity to make the contested hearing process less complicated and less costly. Different stakeholder groups have somewhat different incentives and motivations but the general agreement on the diagnosis may create an opportunity to find broad buy-in on solutions.

NRC staff We heard from NRC technical staff and lawyers that the aspect of the process that takes the longest is the NRC staffs review of the application and preparation of the EIS and SER. The delay stems from two sources.

The first is that the staff are performing multiple functions simultaneously: they are reviewing the licensing application, as well as responding to public comments and evaluating contentions.

One NRC lawyer described this as the major bottleneck in the contested hearing process and the NRC staff confirmed how long this multi-part review takes. Many NRC staff we interviewed are not pessimistic about thisrather, they explained that the review takes a long time because of the level of care they exercise in reviewing the documents.

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Second, we heard from industry members and NRC staff and lawyers that there is often a lengthy delay in the ASLBPs issuance of rulings after a contested hearing, and in the Commissions decisions on appeals. Two NRC lawyers we spoke with suggested there is little internal motivation to address this source of delay in the licensing process.

NRC members expressed a hope that each of these could be improved upon in an advanced reactor process, but that there is considerable uncertainty about how improvements might be achieved. The NRCs desire to simplify and improve the advanced reactor licensing process is buttressed by the Congressional directive to design a more efficient licensing process.

Industry members A contested hearing can delay the commercial operation at a nuclear plant by years. Industry members complained that this can create significant barriers to completing a project, given the costs of litigating issues and the opportunity cost of deferring income from operations. NEI has even documented the increase, over time, of the information required by NRC staff to review a license application, and the concomitant costs to applicants and NRC staff.65 From the industry perspective, the expense and length of contested hearings are even less justifiable for advanced reactors. Applicants point to several new layers of protection in these technologies, including passive and active safeguards, and the fact that cores cooled by advanced substances would take weeks or months to heat up to the point of a meltdown, should all safeguards fail. Because in their view advanced reactors are inherently safer, there should be fewer safety issues, the applicant and NRC will be able to address those that arise, and adjudication of intervenor claims should be straightforward. Likewise, applicants argue that because advanced reactors use less fissile material and generate less waste, they pose less risk to the environment and should trigger fewer environmental contentions.

Industry groups argue that drawn-out litigation could have a severe adverse impact on many of the developers of advanced reactorsnewcomers to the field of nuclear power who are typically lack the capital resources of the major utility companies that operate the existing fleet of LWRs. As such, they are in a far weaker position to withstand delays that accompany the current contested hearing process.

Intervenors Intervenors argue that requiring contentions to be filed before the staff completes its review safety and environmental reviews places an undue burden on them. They support changes that eliminate the labor- and cost-intensive process of repeatedly amending their contentions as the application evolves and the staff prepare their reports.66 Intervenors with familiarity contesting advanced reactor applications under Part 52 are finding it more difficult to identify potential safety and environmental concerns, given that even the staffs understanding of the technology is evolving in real time as it evaluates the application. There is 65 See NUCLEAR ENERGY INSTITUTE, RECOMMENDATIONS FOR ENHANCING THE SAFETY FOCUS OF NEW REACTOR REGULATORY REVIEWS (Apr. 2018), https://www.nrc.gov/docs/ML1811/ML18116A053.pdf.

66 See Finding 2.c (explaining intervenors frustrations with the current process).

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a sense that intervenors essentially have to guess where the issues will arise. This is an inefficient way to identify legitimate issues, and also creates a risk that legitimate issues might be missed altogether.

Finding 5. There is a widely shared desire for more clarity around the procedural rules governing the application and contention process.

We spoke largely with individuals who, either in representing their organization or in their individual There are lots of persnickety NRC-capacity, have extensive experience with the specific rules that make it difficult reactor licensing process, and with contested even for seasoned attorneys to know hearings in particular. They acknowledge that the the procedures without experience.

procedural rules can be difficult to parse for even

- NRC Staff Member experienced lawyers, let alone for newcomers or unrepresented parties.

This view is by no means limited to intervenors. Some NRC staff and lawyers also see the complexity of the rules as an impediment to external stakeholders ability to engage in the process efficiently and effectively. And while the data we gathered applies to the existing process for LWRs, the need for clarity is heightened by the number of new players who are likely to be involved in the licensing of advanced reactors. One new industry member noted that the rules and process are not communicated in simple form, creating uncertainty about what steps are required and how parties should expect the process to play out.

As one NRC staff member noted, the complexity and lack of clarity reduce the pool of potential intervenors to more sophisticated players with funding and licensing experience. Potential intervenors may be deterred from bringing up legitimate issues because they do not have the resources or understanding to take part in the process. Alternatively, intervenors who have filed contentions might have claims dismissed for failure to meet the complex procedural rules.

Findings summary To summarize, we found some major points of tension.

We recognized the challenge facing the staff of having Everyone shares similar goals: of to be neutral at some points and defend their work at meaningful interaction, a timely others. We found a deep distrust between different opportunity to provide concerns, stakeholder groups, especially between intervenors on and efficient use of everyones the one hand, and industry members and staff on the resources.

other. This distrust leads to inefficiencies in the process:

- Industry member intervenors are frustrated at not being heard outside the contested hearing process, so are incentivized to bring up all their issues in the form of contentions, and stakeholders do not trust each other enough to resolve issues in a more productive way. All these tensions are exacerbated by the introduction of new technologies. But we also found some shared values among all 34

stakeholders: support for meaningful public participation, concerns about the efficient use of resources, and, most crucially, a strong belief in the importance of safety. These shared values along with the existing strong institutional values and knowledge of the NRCcan form the foundation for a more efficient contested hearing process for advanced reactors.

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RECOMMENDATIONS Our recommendations are driven by DSD principles about what makes for an efficient process for engaging multiple stakeholders in a controversial issue.

First, there is a definitive connection between greater public participation and positive outcomes. This has implications for efficiency and accuracy, as well as for questions of procedural justice and perceptions of fairness. The benefits of public participation in agency proceedings, especially regarding environmental decision-making, are well-recognized. In addition to being mandated by NEPA, public participation can improve[] the quality of federal agencies' decisions about the environment, increase perceived legitimacy, and increase the likelihood that agency decisions will be effectively implemented.67 Throughout our recommendations, we discuss meaningful participation. By this, we mean participation that has a realistic opportunity of affecting an outcome. While opportunities for public participation are important for public trust of government entities, mere participation is not sufficientin order to develop public trust, member of the public must have confidence that their participation can influence outcomes,68 and that they are not merely wasting their time.

Lind and Ardt have identified three factors that are most important in determining whether, in interacting with the government, individuals feel fairly treated.69 Those three factors are voice, respect, and explanations.70 Voice relates to participants feeling as though they have the ability to be heard by the decision-makers, and the feeling that the input was actually given consideration.71 Respect is a culturally nuanced factor, but one that, when present, also has positive effects on perceptions of fairness.72 In particular, respectful treatment carries the message that one is in fact a valued member of the state.73 Similarly, clear explanations give the citizen reason to believe that his or her participation in the process is real, that he or she is being treated like someone worthy of receiving the information needed to navigate the process and understand decisions.74 67 Public Participation Guide: Internet Resources on Public Participation, EPA, https://www.epa.gov/international-cooperation/public-participation-guide-internet-resources-public-participation#benefits (citing NATIONAL RESEARCH COUNCIL, PUBLIC PARTICIPATION IN ENVIRONMENTAL ASSESSMENT AND DECISION MAKING (2008)) (last visited Dec. 7, 2020). This website has many resources that explain more in detail the importance of public participation to agency decision making.

68 Lisa Schmidthuber, Alex Ingram & Dennis Hilgers, Government Openness and Public Trust: The Mediating Role of Democratic Capacity, PUB. ADMIN. REV. 4. (2020). Public participation also risks resulting in distrust if expectations are set and then not fulfilled. Id.

69 E. Allan Lind & Christiane Arndt, Perceived Fairness and Regulatory Policy: A Behavioural Science Perspective on Government-Citizen Interactions, 6 OECD WORKING PAPERS (2016),

http://dx.doi.org/10.1787/1629d397-en.

70 Id. at 9.

71 Id. at 20.

72 Id. at 24.

73 Id.

74 Id.

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Typically, the regulatory process encourages conflict, rather than acting to reconcile opposing interests . . . .75 One result of this conflict is the that parties continue the controversy in the form of endless petitions for review, clarification, and litigation before the agency and the courts.76 In other words, the structural emphasis on adversarial processes is a primary source of waste and inefficiency. Thus, there is tremendous value in systems that emphasize collaboration, trust-building, and meeting mutual interests. These systems will tend to minimize strife and strategic delay, and will generate solutions that have greater welfare overall.77 Such an approach is especially valuable in addressing conflict that arises in the sphere of government regulation.

To counteract the regulatory bent toward litigation, practitioners recommend constructing alternative systems that help develop trust and focus on consensus building. Experts consider trust to be central to democratic government, to the formation of public policy, and to its implementation.78 Especially in the environmental context, a distinct field known as Environmental Conflict Resolution has emerged, focused on achieving joint goals through collaboration and facilitated mediation.79 In creating systems that work for all parties, many experts in DSD recommend a mutual gains approach to resolving complex disputes.80 Susskind and Field operationalize such an approach in six principles:

1. Acknowledge concerns of the other side,

2. Encourage joint fact finding,

3. Offer contingent commitments to minimize impacts if they do occur; promise to compensate knowable but unintended impacts,

4. Accept responsibility, admit mistakes, share power,

5. Act in a trustworthy fashion at all times,

6. Focus on building long-term relationships.81 These six principles animate our recommendations that touch on building trust between stakeholders. They should be referred to when designing strategies to implement each of them.

75 John T. Dunlop, The Limits of Legal Compulsion, 27 LAB. L.J. 67, 70 (1976).

76 Id.

77 See WILLIAM L. URY, JEANNE M. BRETT & STEPHEN B. GOLDBERG, GETTING DISPUTES RESOLVED: DESIGNING SYSTEMS TO CUT THE COSTS OF CONFLICT (1988).

78 Kenneth P. Ruscio, Trust, Democracy, and Public Management: A Theoretical Argument, 6 J.

PUB. ADMIN. RESEARCH & THEORY 461, 462 (1996).

79 See generally AMSLER ET AL., supra note 6 at 309-318.

80 See, e.g., LAWRENCE SUSSKIND & PATRICK FIELD, DEALING WITH AN ANGRY PUBLIC: THE MUTUAL GAINS APPROACH TO RESOLVING DISPUTES 124-52 (1996); CONSENSUS BUILDING INSTITUTE, CBIS MUTUAL GAINS APPROACH TO NEGOTIATION (2014),

https://www.cbi.org/assets/resource/file/CBI_MGABrief_2014.pdf.

81 SUSSKIND & FIELD, supra note 81, at 124-52.

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Recommendation Summary Our aim here is to identify conceptual approaches we believe would address the concerns we heard from stakeholders, and serve a number of important goals: increasing the efficiency of licensing safe nuclear reactors, allowing the public to meaningfully participate in this process, and improving public confidence in the hearing process and in the NRC as an agency. Based on our understanding of the NRC and its processes, input we collected from internal and external stakeholders, and key DSD principles, we recommend that the NRC consider these five broad recommendations:

Recommendation 1. Focus on and strengthen the NRCs culture of independence, transparency, and impartiality toward intervenors and industry members through rigorous internal training and simplified public-facing resources.

Recommendation 2. Institute a collaborative process to encourage early identification and resolution of issues.

Recommendation 3. Move the deadline for filing contentions until after the NRC staff have finished the SER and EIS.

Recommendation 4. Continue to require that contested hearings be conducted in-person, on a live record, whenever practicable.

Recommendation 5. Institute or enforce NRC deadlines for contested hearing decisions.

We recognize that the NRC technical staff and attorneys have vastly more experience with how the application and contested hearing process works in practice. We are certain that the practical expertise of NRC staff will be essential to determining which of these recommendations are practicable within the agency, and fine tuning them so that they are suitable for implementation.

Recommendation 1. Focus on and strengthen the NRCs culture of independence, transparency, and neutrality toward intervenors and industry members alike through rigorous internal training and simplified public-facing resources.

A major problem we encountered was that the NRC, industry members, and intervenors seemed to have fundamental misunderstandings about each other, leading each party to assume the worst and heightening distrust. We believe that this adversarial stance makes it harder to find efficiencies in the contested hearing process, because parties are determined to litigate or avoid issues, rather than solve them in more effective ways. The NRC is required to be impartial 38

in its review of applications and in its dealings with external stakeholders.82 We found that the NRC members took their roles very seriously and genuinely wanted to engage with the public (Finding 1). Intervenors felt the NRC was biased toward applicants (Finding 3.a). And some NRC members noted a tension between being an impartial reviewer yet having to take an adversarial position during the hearing. This recommendation is intended to bridge the gap between the NRC staffs understanding of themselves and the agency as neutral public servants, and intervenors perception of the agency and its staff as biased toward industry.

Neutrality is difficult to achieve in agency reviews. Pierce and colleagues have referred to decider neutrality as one of the most complex aspects of administrative practice.83 Yet it is crucial in getting stakeholders to participate in the process and to defer to decisions that have been made, rather than seeking to block them through other means.84 A perceived lack of neutrality leads parties to feel that a process is unfair, which undermines the credibility of, and confidence in, public agencies; while confidence in a fair and open process makes parties more likely to voluntarily comply with that process.85 Better communication of neutrality and openness, then, can be crucial to increasing effectiveness and efficiency of the contested hearing process.

As such, we recommend that the NRC:

a. Implement trainings to help NRC staff members more effectively navigate the complexities and challenges of their roles in the organization, and

b. Create and publicize simpler guides to demystify the process for contesting advanced reactor applications.

a. Implement trainings to help NRC staff members more effectively navigate the complexities and challenges of their roles in the organization.

We recommend that the NRC implement staff trainings or tabletop exercises to help staff members sharpen and define their roles within the organization, particularly as neutral parties when reviewing applications. Trainings could focus on the ethics of impartiality and the importance of maintaining a neutral stance against pressures exerted by parties. One useful type of training are tabletop exercises: scenario-based discussions that allow staff members to 82 5 CFR § 2635.601 (2020); see generally Values, supra note 24. NEPA regulations also provide that agencies should avoid any conflicts of interest in preparing EISs. See 40 C.F.R. § 1506.5 (2020).

83 RICHARD J. PIERCE, JR., ET AL., ADMINISTRATIVE LAW AND PROCESS 455 (3d ed. 1999).

84 See Tom R. Tyler, Does the American Public Accept the Rule of Law? The Findings of Psychological Research on Deference to Authority, 56 DEPAUL L. REV. 661, 663-64 (2014) (finding that individuals are more likely to defer to a decision where they feel the process that gave rise to that decision was fairand that the impartiality of the decision-maker was a key factor in whether individuals considered the process fair).

85 Robert R. Kuehn, Bias in Environmental Agency Decision Making, 45 ENVT. L. 957, 961 (2015).

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take on unfamiliar roles to implement appropriate policies.86 While often enacted in emergency preparedness programs, tabletop exercises can also be a highly effective way to allow staff members to become more comfortable in their roles by understanding the motivations and interests of other parties involved in regulatory processes.

Training to reinforce impartiality has proven effective in the judicial realm. A report by the Office for Democracy and Governance, a division of the U.S. Agency for International Development (USAID), makes note of various training systems used by different countries for promoting the neutral application of law.87 Several areas of focus could also be applied to trainings for staff members, including working through complex ethical conflicts based on practical issues and fostering on-going contact between staff members and instructors. USAID has emphasized that these sorts of trainings are valuable not just in newer judicial structures such as those in emerging democracies, but also to strengthen the decision-making of well-established systems.

In addition to reinforcing the importance of neutrality, these trainings could help NRC staff members have the most productive interactions possible with members of the public. Being able to clearly articulate to stakeholders the nature of their role, as well as that of the NRC, will help to manage expectations and make clear when the Agency is constrained in what it can do. These are important steps to building a culture of trust between parties (Finding 3).

By focusing on these steps, NRC staff members can act as positive change-makers who bring a cooperative attitude and build trust among the external stakeholders. This process will also help to reduce the amount of litigation that is filed in contesting licensing applications.

Expected benefits Potential drawbacks Help staff members understand their roles and Increased time and cost know when to evaluate, when to support the public, and when to defend their position Enforce importance of neutrality Improve public perception Summary table of expected benefits and potential drawbacks

b. Create and publicize simpler guides to demystify the process for contesting advanced reactors applications 86 See, e.g., Nanette Moss, The Importance of Tabletop Exercisesand How to do them Properly, ENVT. HEALTH & ENGG, INC. (June 4, 2019), https://eheinc.com/blog/the-importance-of-tabletop-exercises-and-how-to-do-them-properly/.

87 OFFICE OF DEMOCRACY AND GOVERNANCE, GUIDANCE FOR PROMOTING JUDICIAL INDEPENDENCE AND IMPARTIALITY (2002).

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We recommend developing a simple guide to how the licensing process generally, and the contested hearing process in particular, work. This could include requirements for intervenors, a timeline of steps or stages of the process, and templates for various documents that are filed.

Posting the rules for certain topics on individual webpages, with useful diagrams, would be a start,88 though future guides could simplify even further.

The NRC is presently producing good literature summarizing the technical aspects of advanced reactor technologies and making these available to the public in the form of vision and strategy staff reports.89 However, we have heard from several newer individuals who have encountered the current hearing process that there is not the same availability of technical guides to the procedures of the contested hearing process.90 While there is a webpage that nominally seeks to explain the Part 2 process, as of this Report it is sparsely populated and does not provide much beyond further links to the scope of and recent revisions to Part 2.91 As such, these stakeholders expressed that they felt confusion at the process and what they were expected to do at various stages. This problem promises to become more acute under Part 53, as newer parties seek licenses for advanced reactors and as a new generation of intervenors joins the fray.

Why create explanatory guides?

The value of procedural explainers is highlighted by Lind and Ardt, who note that such materials can be as effective as clear judgment criteria for helping citizens feel involved in government processes.92 They encourage the development of road maps of processes and alternatives that clearly lay out what an individual needs to do in order to participate in the process. They also stress the value of including clear timelines in such a road map.93 As mentioned, there is currently a vanishingly small pool of individuals who are capable of litigating as intervenors in a contested hearing, given the particularity of the rules. This pool is likely to be even smaller for advanced reactors, due to the steep learning curve for the variety of new technologies involved. This small market for individuals affects issues of procedural justice, but can also impact substantive issues surrounding the siting of advanced reactors. The intervening public performs a valuable role as an additional check on possible adverse impacts; 88 Cf. The Rulemaking Petition Process, U.S. NRC, https://www.nrc.gov/about-nrc/regulatory/rulemaking/petition-rule.html (last updated Nov. 7, 2017).

89 See, e.g., U.S. NUCLEAR REGULATORY COMMISSION, NRC VISION AND STRATEGY: SAFELY ACHIEVING EFFECTIVE AND EFFICIENT NON-LIGHT WATER REACTOR MISSION READINESS (Dec. 2016),

https://www.nrc.gov/docs/ML1635/ML16356A670.pdf.

90 While the rules are laid out in various provisions under Part 2, these are laid out in a way that may be confusing to non-lawyers.

91 10 CFR Part 2: Rules of Practice for Domestic Licensing Proceedings and Issuance of Orders, U.S. NRC, https://www.nrc.gov/about-nrc/regulatory/adjudicatory/part2revisions.html (last visited Dec. 7, 2020).

92 Lind & Ardt, supra note 70 at 24-25.

93 See Recommendation 4.d.

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this role is most pronounced when it comes to local issues, such as those addressed in midstream siting issues.94 This is an area where the expertise of the NRC staff is best leveraged. Members of the OGC and of the ASLBP who handle litigation could be tasked with creating a draft of these guidelines, based on the rules laid out in Part 2 (or in a future rule to cover advanced reactor licensing).

They should then form a citizen advisory board, consisting of experienced members of the public and industry, to evaluate the guidelines against their actual experience and correct discrepancies. Such a process would empower the public by including them, much like a negotiated rulemaking. It would also allow non-experts in the process to help by evaluating how clear the instructions are.

Summary table of expected benefits and potential drawbacks Expected benefits Potential drawbacks Improve public perception Some financial and human resource cost to create and maintain guides and publications Clarified procedures/process More accurate contentions Saves time Recommendation 2: Institute a collaborative process to encourage early identification and resolution of issues Stakeholders of all stripes were unified in their criticism of the length, cost, and complexity of the contested hearing process.95 The adversarial nature of the current process not only contributes to the cost, length, and complexity, it also tends to result in public intervenors not feeling heard or valued in the process. This recommendation directly targets the cost and complexity issue, in a way that simultaneously opens up the opportunity for dialogue between different parties with the hope of also making the intervenors feel they have a meaningful opportunity to be heard.

Engaging in collaborative dialogue with stakeholders is crucial for agencies seeking to make decisions with the buy-in of the public.96 Engaging with stakeholders as early as possible in the 94 In the environmental context, midstream refers to issues that relate to stages between policymaking and specific enforcement, such as proposed siting of facilities. See AMSLER ET AL.,

supra note 6 at 310.

95 See Finding 4.

96 SARA COHEN, CONSENSUS BUILDING INSTITUTE, COLLABORATIVE APPROACHES TO ENVIRONMENTAL DECISION-MAKING: A STATE AGENCYS GUIDE TO EFFECTIVE DIALOGUE AND STAKEHOLDER ENGAGEMENT (2013),

https://www.cbi.org/assets/files/NE%20Agency%20Guide%20to%20SE_FINAL.pdf 42

process demonstrates that an agency takes public opinion seriously and can result in reasoned conversation that leads to better outcomes.97 We recommend that the NRC encourage, and provide a collaborative process for, early identification and resolution of problematic aspects of an application. We expect that implementing such a process would (i) provide intervenors a more meaningful opportunity to have their concerns heard and addressed (Finding 2.d), (ii) help resolve the high levels of distrust we identified among stakeholder groups (Finding 3), (iii) enable the NRC staff and applicants to understand intervenors concerns with an application (Finding 3), and (iv) actually resolve more issues early, thereby reducing the cost and length of the contested hearing (Finding 4).

Specifically, we recommend that the NRC:

a. Facilitate meetings between industry members and intervenors to identify and, where possible, resolve issues early; and

b. Encourage joint fact finding.

Almost every interviewee liked this idea in theory: industry members felt that any resolution of issues in a non-adversarial and more cost- and time-efficient manner would be a good idea and intervenors wanted their concerns to be genuinely heard and addressed (even if some of them also oppose nuclear power on principle). NRC staff were enthusiastic about a mechanism to resolve issues in a time-efficient way. Many interviewees, from all sides, had concerns with how this would work in practice. Industry members were concerned that intervenors would use early intervention as a stalling tactic in addition to filing contentions; intervenors were concerned that industry and the NRC would not take their concerns seriously.

It is important, then, if early resolution of issues is to be encouraged, that all parties buy into the process. We have attempted, in our recommendation, to include safeguards designed to ensure the process is not simply seen as a box to check before going to litigation but provides a meaningful forum by which disputes can be resolved.

a. Facilitate discussions between industry members, intervenors, and NRC staff to identify and resolve issues early.

We recommend that the NRC hold a series of intensive facilitated meetings between applicants and intervenors at an early stage in the processperhaps even before the applicant has filed its complete application, or in any event soon thereafter.

Facilitation is a process whereby a third-party neutral moderates discussions, schedules meetings, records the discussions, and gives feedback to help stakeholders have constructive 97 JONATHAN RAAB & LAWRENCE SUSSKIND, NEW APPROACHES TO CONSENSUS BUILDING AND SPEEDING UP LARGE-SCALE ENERGY INFRASTRUCTURE PROJECTS 10 (June 23, 2009), http://www.lawrencesusskind.com/wp-content/uploads/2013/08/Raab-Susskind-German-Consensus-Building-Negotiation.pdf (contrasting this to a Decide-Announce-Defend model where agencies elicit public comment as a formality).

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discussions and achieve better mutual understanding of interests and values.98 Using a professional facilitator to guide discussions leads to more efficient outcomes, because the facilitator can use their expertise to reduce the problems typically associated with dispute resolution of antagonistic groups of stakeholders, including miscommunication, different perspectives, and limited time.99 In so doing, facilitation enable[s] stakeholders to engage with others in ways otherwise unavailable through litigation or traditional administrative processes.100 Facilitation has been widely used in resolving environmental disputes. For instance, the Hudson River Sustainable Shorelines Project in New York uses facilitation to convene stakeholders to identify and resolve issues relating to shoreline management.101 A requirement of this sort has also been employed in New York for the state siting of energy facilities. Applicants are required to complete a preliminary scoping statement in which they lay out their proposed facility and what sort of information they need to gather for the application.102 This document is then made available to members of the public, in order to encourage early participation from state agencies, municipalities, environmental organizations, and other interested groups.103 In addition, the municipality in which the proposed facility will be sited is given the right to appoint two ad-hoc members, drawn from its residents, to the Project Siting Board that oversees the licensees construction.104 Implementation

a. Incentivizing intervenors The value of a collaborative process depends to some degree, of course, on the extent to which the parties buy into the process.105 Merely going through the motions is less likely to yield the benefits of early identification and resolution of issues. To incentivize intervenors participation in these meetings, the contested hearing rules could liberalize the filing deadlines (see Recommendation 3) for parties who have (i) participated in the early process and (ii) identified during that process, with reasonable specificity, the issues on which the party ultimately intends to intervene.

98 Lara B. Fowler & Xiaoxin Shi, Human Conflicts and the Food, Energy, and Water Nexus: Building Collaboration Using Facilitation and Mediation to Manage Environmental Disputes, 6 J. ENVT.

STUD. SCI. 104, 106-07 (2016).

99 Fowler & Shi, supra note 99, at 107.

100 Id. at 106.

101 Hudson River Sustainable Shorelines, HRNERR, https://www.hrnerr.org/hudson-river-sustainable-shorelines (last visited Dec. 7, 2020). This project engaged professional mediators and facilitators from CBI. Fowler & Shi, supra note 99, at 106.

102 CONSENSUS BUILDING INSTITUTE, RAAB ASSOCIATES, RUBIN & RUDMAN, MULTI-STATE ENERGY FACILITY SITING REVIEW 20 (Nov. 18, 2013).

103 Id.

104 JAMES AUSTIN & ANDREW DAVIS, AN INTRODUCTION TO NEW YORK STATE ELECTRIC GENERATION SITING (Dec.

19, 2012), https://sitingcommission.vermont.gov/sites/vegspc/files/documents/publications/NY-Austin-121912.pdf.

105 AMSLER ET AL., supra note 6, at 21.

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To be sure, an intervenor could participate in the process with no intention of resolving disputes and with the goal of consuming valuable time at the front end of the process, only to turn up later with a petition to intervene under the more liberal timeline. We offer two responses to this concern. First, even parties with no intention to resolve disputes may find common ground under the guidance of a skilled facilitator. Second, requiring would-be intervenors to identify the challenges they intend to raise allows the applicant to refine the application accordingly. Thus, even if no issues are resolved in the early engagement stage, by the time petitions to intervene are filed (see Recommendation 3), many potential challenges already will have been addressed and resolved by the applicant.

Finally, this recommendation, if implemented, should bear fruit over the longer term, through increased trust in the process and between the parties, ultimately resulting in fewer spoiler intervenors.

b. Incentivizing applicants Applicants must also be incentivized to resolve issues that are brought to their attention during an early meeting, in order for the early meetings to improve the efficiency of the process. There are tangible benefits that should appeal to applicants. In particular, knowing intervenors concerns early in the process allows the applicant to tailor their applicant to protect it from contentions later in the process. The final application would therefore likely be subject to fewer contentions, ultimately saving the applicant time and money in the form of a shorter contested hearing process, quicker final ruling on the application, and reduced lost-opportunity costs. As noted above, early interaction should also help to build trust between the parties, and will increase confidence in the process overall.

One industry representative also voiced frustration that applicants are not permitted, in most circumstances, to challenge NRC staff determinations that an application is insufficient in some respect. We have not explored this in depth, but it would be worth considering whether, as added incentive, applicants who participate in the early engagement process should be granted the right to a hearing on issues where it disagrees with the NRC staffs position.

c. Voluntary v. mandatory process Collaborative processes often are designed on the premise that participation is voluntary.106 We acknowledge that a pure opt-in process may be not be practical here. In essence, it would require establishing two separate, and not-quite-parallel application tracks - one for parties who opt into the early engagement process, and one for those who opt out. An applicant may wish to opt in, with one or more (or all) intervenors opting out. Or an applicant may opt out, where all or some subset of intervenors wished to opt in. In any case, the administrative burden on the NRC, and the added confusion of conflicting sets of rules would seem to outweigh the benefits of a purely voluntary early engagement process. We recommend making the early engagement process mandatory, in much the same way that some courts have instituted mandatory mediation107. Although participation is a mandatory condition of seeking 106 I D.

107 See https://www.justice.gov/archives/olp/file/827536/download (chart showing which federal courts have instituted mandatory mediation) 45

adjudicatory relief, the principle of voluntariness ensures that no party is compelled to dismiss or otherwise forego a claim.

Choosing a facilitator Typically, a facilitator is understood to be a neutral third-party, since their goal is to facilitate the discussion, not to take part in it, and a non-neutral facilitator might raise concerns among stakeholders with whom the facilitator does not align.108 We understand that the NRC has a facilitator corps,109 which could be used to conduct these facilitated discussions. Having an NRC facilitator might be less costly, and the facilitators expertise in nuclear technology and in the licensing process would likely help them effectively facilitate discussions. Yet there is a danger that an NRC facilitator would be perceived as biased, which would undermine the free exchange of ideas and interests that facilitation is supposed to engender. Ideally, then, a facilitator would be external to the NRC, though an internal facilitator agreed to by all parties could be just as effective.110 Difference from current public meetings The NRC currently holds public meetings, but the facilitated early engagement process we are recommending would be fundamentally different. As we understand it, the public can offer comments in public meetings, but the format of these meetingsof all categoriesseverely limits meaningful engagement. In category 1 and 2 hearings, there are rules around when members of the public can comment,111 and even in category 3 meetings, the usual practice of the NRC staff (as we understand it) is to acknowledge the speakers comment but not engage in dialogue. These features of current public meetings mean that the public is not on a level playing field with the applicantin category 1 meetings, they are guests in the applicants meeting with the NRC and are not invited to speak. Even in category 3 meetings, staff are not required to engage in a back and forth dialogue with members of the public.112 Facilitated discussions, on the other hand, would bring all three partiesapplicants, intervenors, and the NRCtogether, as equals, to discuss concerns. It is imperative that these meetings do not take the form of the NRC or applicant explaining to the intervenor why they should not be 108 Ann Porteus, Nanci Howe & Tommy Woon, Facilitating Group Discussions, STANFORD, https://web.stanford.edu/group/resed/resed/staffresources/RM/training/facilguide.html (last visited Dec. 7, 2020) (facilitators should be objective because their role is to create an environment for all to have a chance to participate). But cf. Sean F. Nolon, Second Best Practices?: Addressing Mediations Definitional Problems in Environmental Siting Disputes, 49 IDAHO L. REV. 69 (2012) (arguing that non-neutral third parties can successfully mediate environmental siting disputes).

109 See Lance Rakovan, Acting as a Neutral to Help NRC Meetings Be More Productive, U.S.

NRC BLOG (Dec. 27, 2011), https://public-blog.nrc-gateway.gov/2011/12/27/acting-as-a-neutral-to-help-nrc-meetings-be-more-productive/.

110 A model could be the ASLBP, who are viewed as being independent from the NRC staff, despite being a part of the NRC.

111 See NRC Management Directive 3.5 (Dec. 23, 2011),

https://www.nrc.gov/docs/ML1129/ML112971635.pdf.

112 Id. at 6-7.

46

concerned, but rather that all parties seek to understand each others interests and concerns.

To alleviate concerns that a partys comments might be used against them later in the process, the early engagement rules could specifically prohibit such use.113 Summary table of expected benefits and potential drawbacks Potential benefits Potential drawbacks Shows intervenors the NRC takes them Risks lengthening the process if used as a seriously delay tactic Brings issues to the applicant and NRCs Requires investment of NRC staff and attorney attention early time and resources Reduces number of contentions More resource-efficient

b. Encourage joint fact-finding between industry members, intervenors, and the NRC.

We recommend engaging applicants and intervenors in joint fact finding for disputes arising from a license application. Professor Susskind and others have identified joint fact-finding as a more efficient and more equitable response to traditional technocratic decision-making. Joint fact finding is a cooperative inquiry that improves the way relevant expert knowledge is brought forward into controversial policy and regulatory discussions.114 According to the MIT Science Impact Collaborative, it involves engaging stakeholders to [c]ollectively identify critical scientific and technical questions; scope their needs and how these questions might be answered in practice; commission studies from experts that all parties support and trust; and collectively receive and evaluate the results.115 Though scientific analyses are somewhat objective, they are also the product of the subjective interpretations of the analyst. The public would be rightly skeptical that scientific determinations made without them are truly objective and unbiased. Joint fact-finding is more likely to lead to findings that the public trusts. Joint fact-finding is especially appropriate for disputes involving highly technical or scientific elements, like those at issue here.

The NRC could institute joint fact-finding by convening experts from the public to collaborate with industry-side and NRC experts to agree on mutually acceptable probabilistic risk formulae for advanced reactors, or mutually acceptable ways to deal with safety or environmental concerns in particular applications, as two examples. We would anticipate that the early 113 See, e.g., Fed. R. Evid. 408 114 Peter S. Adler, Towards a More Humble Inquiry: The Practice of Joint Fact-Finding, in JOINT FACT-FINDING IN URBAN PLANNING AND ENVIRONMENTAL DISPUTES (Masahiro Matsuura and Todd Schenk, eds.,

2017).

115 Joint Fact-Finding, MIT Science Impact Collaborative, https://scienceimpact.mit.edu/joint-fact-finding (last visited Dec. 7, 2020).

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engagement process described above would identify areas that would benefit from joint-fact finding.

Summary table of expected benefits and potential drawbacks Potential benefits Potential drawbacks Prevents issues arising later Requires time investment up front Allows pooling of resources and expertise Risks lengthening process, particularly if joint fact-finding does not result in agreement on points of contention Clarifies potential issues Requires careful legal analysis for compliance with fiscal and administrative limitation on government agencies Increases public trust Recommendation 3. Move the deadline for filing contentions until after the NRC staff have finished the Safety Evaluation Report and the Environmental Impact Statement.

The moving target nature of an application under the current process, coupled with strict timelines for filing and amending contentions, places an enormous burden on intervenors and undermines faith in the fairness of the process. (Findings 2.c and 3.a) The process also consumes valuable staff time to evaluate and respond to petitions and multiple amended petitions.

(Findings 2.c and 4). We recommend delaying the time for filing contentions until after the NRC has completed its staff reviews. This idea finds considerable support among stakeholder groupsprimarily intervenors, but also at least one member of the Commissioners office and some members of the ASLBP and OGC.

We acknowledge that this recommendation may be controversial. Moving out the deadline for filing contentions could appear inconsistent with Congresss directive to the NRC to improve timeliness and minimize delays in the license process for advanced reactors. Moreover, applicants and some NRC staff expressed concern that moving the filing deadline until after the SER and EIS are complete will encourage intervenors to sandbag the process with issues that could have been raised much sooner. Applicants in particular may be resistant to this change.

Nonetheless, we believe moving the contention deadline would actually (i) increase efficiency and reduce litigation; (ii) address the prohibitive cost and litigation quagmire that frustrate intervenors and applicants; (iii) demonstrate a genuine interest in promoting meaningful public participation in the licensing process; (iv) improve the NRCs standing with intervenors and, over time, reduce distrust of the NRC; and (v) encourage collaborative problem-solving. In other words, this recommendation is aimed at reducing the length, cost, and complexity of the contested hearing process (Finding 4) and improving intervenor trust of the NRC (Finding 3.a),

while still protecting applicants and the NRC from frivolous litigation (Finding 3.c). To avoid 48

blindsiding either the applicant or the NRC staff reviewing the application, we strongly encourage implementing this change alongside the early engagement process detailed in Recommendation 2. Another option, rather than tying the deadline for filing contentions to the completion of the SER and EIS, would be to tie the deadline to the completion of a draft SER and the draft EIS.116 Issues with the current filing deadlines Under the existing licensing process for LWRs, an application is accepted for docketing when the NRC staff makes a finding that the application is complete, i.e. that it contains all the requisite information. The docketing event is published in the Federal Register, triggering a 60-day period for members of the public to challenge the sufficiency of the application. There follows what has been described to us as an iterative process whereby: (i) the NRC staff evaluates the application and notifies the applicant of deficiencies, (ii) the applicant revises the application to address the staffs concerns, (iii) intervenors try to keep pace and file motions to amend their petitions based on the revised application, (iv) the staff continues its review and identifies deficiencies, (v) the applicant revises its application, (vi) intervenors seek leave to amend, etc.

All the while, the staff is also preparing the SER and EIS that ultimately will be the staffs final position on the safety and environmental adequacy of the application.

Members of the public must file a petition to intervene within 60 days of the docketing of an application (or risk forfeiting the right to intervene) and must do so on an incomplete and evolving record. This leads intervenors to file voluminous contentions; many are speculative, and others likely could have been addressed in the ordinary course of the staffs review. Simply put, faced with an early deadline to file contentions on an incomplete record, intervenors wildly over-file. This puts strain on the NRC staff, sets the staff and intervenors in an adversarial posture from the get-go, reduces the quality of public participation, burdens the Licensing Board, and risks delaying and undermining the entire licensing process.

Benefits of extending the contention filing deadline Louis Kaplow has written about the value of accuracy in adjudications, including in the licensing context.117 The benefits are realized in several ways, including better distribution of resources, overall social welfare, and efficient behaviors caused by changed incentives.118 Lawrence Solum argues that increased accuracy of information leads to increased participation, and an enhanced sense procedure fairness.119 Extending the contention deadline can also enhance procedural justice in the contested hearing process.

116 The NRCs existing process does not include development of a draft SER but we understand that the process could be modified to include something like a draft or preliminary SER that could function like a draft EIS.

117 Louis Kaplow, The Value of Accuracy in Adjudication: An Economic Analysis, 23 J. LEGAL STUD.

307 (1994).

118 Id. at 338-45.

119 Lawrence B. Solum, Procedural Justice, 78 S. CAL. L. REV. 181, 192-224 (2004).

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Applying these principles here, the potential benefits of extending the contention deadline are considerable. First, the clarity of a complete and accurate record should lead to fewer, more accurate contentions. Because intervenors will have the complete application and staff reports, they will be able to allege with particularity any flaws they believe remain in the application.

Claims will be sharpened to address actual issues in the record, avoiding the shotgun, speculative contentions that infect the current process. Indeed, the applicant has significant incentive to fully address the intervenors concerns (identified in the early engagement process, see Recommendation 2) and to present as complete and accurate an application as possible, in order to reduce the likelihood of admissible contentions. The ultimate effect is that:

intervenors are invited to participate on a complete, accurate record; contentions are more focused and fewer; staff is relieved of the obligation to evaluate and respond to petitions, amended petitions, and further amended petitions while completing the SER and EIS; the deeply embedded adversarial nature of the current process is substantially alleviated; and applicants get a quicker, more efficient hearing on their application. The interests of public participation, procedural justice, and efficiency can all be served.

Potential drawbacks A potential source of added administrative cost and delay could come from intervenors filing eleventh-hour contentions that raise previously unconsidered issues that must be evaluated and addressed by the NRC staff and the applicant. This risk would be significantly offset by barring intervenors from asserting challenges on issues that were not identified during the early public engagement process, as discussed in Recommendation 2. Nonetheless, the possibility remains that an issue might arise in the final application intervenors could not reasonably have foreseen at the early engagement stage.

Summary table of expected benefits and potential drawbacks Potential benefits Potential drawbacks More efficientno duplication of effort Possible delay and added costs in some between intervenors and the NRC staff cases Fewer, more directed contentions Risks contentions being filed late in the process that the applicant did not expect Allows more accurate contentions (that are based on a complete picture)

Increases trust 50

Recommendation 4. Continue to require that contested hearings be conducted in-person, on a live record, whenever practicable.

We recommend retaining the opportunity for admitted contentions to have an oral hearing in front of the ASLBP, rather than moving to an entirely written process.120 While oral hearings might add time and cost to the application process, we believe this is more than outweighed by gains in procedural fairness and the perception of just outcomes that flow from live hearings. We heard from one intervenor that it was important to have an in-person hearing, rather than a phone hearing, because the physical hearing allowed members of the community to come together to take part in the process in a way that feels more meaningful than attending a hearing over the phone.121 The value that comes from allowing live participation speaks to a key interest of intervenors, which is a desire to feel like they are part of the process and that their contentions are considered seriously. It also allows for a fuller consideration of the issues raised, since ambiguities can be clarified and the presiding judges can ask questions of the different parties.

There is extensive scholarship on the value of direct interaction in dispute systems. For example, Joel Eisen notes that face-to-face conversation can foster important process values in the field of mediation.122 In the adjudicatory context, there are questions of due process that arise through reaching decisions without affording the parties the opportunity to be heard.123 Oral hearings are also important to give the public a meaningful voice, one of Lind and Ardts criteria for perceptions of fairness.

Summary table of expected benefits and potential drawbacks Potential benefits Potential drawbacks Fulfils NRCs mission Time/cost Provides focal point for the NRC staffs work Potentially challenging for public to attend since reactors are often in remote locations Provides a forum for community engagement and opportunity to be heard Rigorously tests applications readiness 120 We refer here to the final contested hearing. Preliminary, non-substantive issues could be heard over the phone or over video link to increase efficiencies.

121 The current moment may be ripe for an analysis of whether platforms such as Zoom could be an adequate substitute for in-person hearings, particularly when the situs of a proposed plant is in a remote location. This was, however, outside the scope of our report.

122 Joel B. Eisen, Are We Ready for Mediation in Cyberspace?, 1998 BYU L. REV. 1305, 1308 (1998).

123 We do not mean to imply that there are potential due process violations that could arise from denying oral hearings on contestations, but rather to illustrate the value given to such opportunities by our country as a whole.

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Recommendation 5. Institute or enforce NRC deadlines for issuing decisions in contested hearings.

We recommend that the NRC institute internal deadlines for stages of the contested hearing process that do not currently incorporate deadlines. Where internal deadlines already exist, such as the time for the ASLBP or Commission to issue decisions on the matters before them, we recommend adhering more strictly to them, and only filing for extensions in unusual circumstances.

This recommendation may strike some as not serving much point, and it may seem to be challenging to enforce, given that the highest levels of the NRC would be tasked with policing themselves. Nevertheless, we believe it is worth exploring how to implement these deadlines, for several reasons. Adhering to these internal deadlines is a low-cost way to make contested hearings more time-efficient. By acknowledging these time constraints, the NRC can create clear expectations about how long the typical contested process will take. Moreover, the NRC can prevent instances where the process drags on for too long, undermining the Agencys regulatory mission. This also touches on the second of Lind and Ardts three factors, respect.124 They write about the importance of respectful treatment to achieving effective regulatory interactions. This is largely due to the perception of fairness that is impacted by respect or a lack thereof. Such impact has been well documented: for example, a study of US courts found that feelings of being treated respectfully strongly influenced how litigants viewed the fairness of the judgment they received.125 Having clearly defined timelines for the NRCs role in a contested hearing would help the parties feel that they are being treated respectfully. One complaint we heard repeatedly was the feeling that there were unnecessary internal delays with deciding contentions, and no clear reasons for the delay, which caused consternation among both intervenors and applicants. We heard from several stakeholders about the contentions over the Diablo Canyon site, which were finally concluded in 2015 after a long period of litigation. Enforcing internal deadlines will help to alleviate these resentments.

Enforcing deadlines for issuing ASLBP rulings or Commission decisions may not be practicable.

Nonetheless it is important to continue valuing a culture in which these deadlines viewed as an integral part of serving the public - applicants, intervenors and the general public. We suggest that the NRC considering a new Commission Policy Statement on the importance of a timely contested hearing process and the role deadlines play in that.

124 Lind & Ardt, supra note 70, at 23.

125 E. Allan Lind et al., In the Eye of the Beholder: Tort Litigants Evaluations of their Experiences in the Civil Justice System, 24 L. & SOC. REV. 953 (1990).

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Summary table of expected benefits and potential drawbacks Potential benefits Potential drawbacks Shortens the process Added pressure on the decision maker Adds predictability Difficult to implement/enforce 53

CONCLUSION A contested hearing is, by definition, adversarial. There are interests on both sides that stand in disagreement to one another. This is certainly true of any process the NRC chooses to implement for licensing advanced reactors, especially given some of the deeply ingrained disagreements we have highlighted. But this does not mean that the process must be designed to emphasize its adversarial nature. Rather, by encouraging consensus-building, early-stage informal intervention, and collaborative fact-finding, the process can be one in which trust is instilled in greater measure and parties feel they can come together to resolve issues. For those disputes that still must be formally adjudicated, providing clarity around the procedural rules and adhering to well-defined timelines will improve efficiency and boost perceptions of fairness. Even while striving to be efficient, allowing petitioners to see as much of the picture as possible, and maintaining the practice of in-person adjudication, will give the public an important voice in the process and will help achieve goals of procedural justice and accurate assessment of claims.

As noted, we have endeavored here to provide a series of framework ideas we believe will improve outcomes and reduce costs in a contested hearing process. Many of the details are left to be defined and will best be worked out in connection with the ongoing development of Part

53. Some of the questions that will be worth considering include whether to retain the current procedural standards for pleadings and determining standing, and how to structure of role of NRC staff members as, in effect, interested parties in adjudications. We believe that this framework will help guide some of those details and allow for a process that reduces costs and allows the best ideas to come forward, for the good of the industry as a whole.

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APPENDIX A BALANCING REGULATORY RULES AND STATUTORY BURDENS: THE CASE OF INTERVENOR FUNDING One of the elements that complicates the ability to implement a maximally efficient design for a Part 53 contested hearing process is the complex interplay between the NRCs regulatory rules, as listed in Title 10 of the Code of Federal Regulations, and the NRCs governing statutes.

Included among these statutes are the Atomic Energy Act of 1954, the organic statute which created the precursor to the NRC, as well as the National Environmental Protection Act of 1969, the Energy Reorganization Act of 1974, and the Nuclear Energy Innovation and Modernization Act of 2019. All of these statutes contain limits, or impose requirements, on what the NRC does.

For example, NEPA requires that the NRC have a public comment period to evaluate the environmental impact of major federal actions significantly effecting the human environment, such as the licensing of a large LWR. This requirement means that we cannot recommend preempting the public comment for the ability to file contentions on environmental issues, because there is no practicable way for the NRC to implement such a change.

A particularly stark example of this is the consideration of intervenor funding. One of the desires expressed universally by private intervenor groups is for the NRC to provide some sort of funding for their activities. Intervenors tend to be non-profit organizations or individuals with limited resources, who are involved in filing contentions out of a feeling of responsibility to engage in this service for the public good. Most of them do not have the ability, therefore, to hire an expert to review the extensive documents that form the application record, or to retain them over time to weigh in on new developments.

There is a fair amount of literature on intervenor funding, much of it positive.126 It is seen as a way to ensure participation, providing a valuable check on regulatory oversight and outsourcing some of the work of ensuring public safety. For these reasons, several states offer funding for members of the public who intervene in energy siting in good faith, including California127 and New York.128 However, we did not consider this issue or weigh the opposing sides in the body of this Report, because the point is rendered moot by statute. Specifically, the congressional funding bill for fiscal year 1993 reorganized the NRCs budget and prohibited the funding of intervenor 126 See, e.g., Michael I. Jeffery, Intervenor Funding as the Key to Effective Citizen Participation in Environmental Decision-Making: Putting the People Back into the Picture, 19 ARIZ. J. INT'L &

COMP. L. 643 (2002).

127 The Intervenor Compensation Program, CPUC, https://www.cpuc.ca.gov/icomp/.

128 The Fund for Municipal and Local Parties: A Guide to Intervenor Funding Pursuant to Article 10 of the Public Service Law, N.Y. DPS, https://www3.dps.ny.gov/W/PSCWeb.nsf/96f0fec0b45a3c6485257688006a701a/6fd11ce8db088 a2785257e200054a99b/$FILE/Guide%20to%20Intervenor%20Funding%201-30-18.pdf.

55

activities.129 As such, any changes to the Agencys approach to this question would require an Act of Congress.130 This does not mean that there is no role for the NRC to play when dealing with superseding requirements. Rather, there is great value in staff members understanding these hierarchical structures and being able to communicate them clearly to the public. This is a piece of what we encourage (Recommendation 1.a), and it will help alleviate perceptions of unfairness and bias directed at the NRC itself, as well allowing the public to understand that issues such as this are best brought up to parties other than the Agency.

129 Pub. L. No. 102-377 § 502 (1992).

130 See 69 Fed. Reg. 2190 (Jan. 14, 2004).

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STATUTES 5 U.S.C. § 552.

5 U.S.C. § 554.

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5 U.S.C. § 571.

5 U.S.C. § 1554.

5 U.S.C. § 3331 42 U.S.C. § 5801 et seq.

42 U.S.C. § 5841.

ACTS OF CONGRESS Administrative Dispute Resolution Act of 1996, Pub. L. No. 104-320 (1996).

Administrative Procedure Act, Pub. L. No.79-404 (1946).

Atomic Energy Act of 1954, Pub. L. No.83-703 (1954).

Energy and Water Development Appropriations Act, 1993, Pub. L. No. 102-377 (1992).

Energy Reorganization Act of 1974, Pub. L. No.93-438 (1974).

National Environmental Policy Act of 1969, Pub. L. No.91-190 (1970).

Nuclear Energy Innovation and Modernization Act, Pub. L. No. 115-439 (2019).

LEGISLATIVE MATERIALS 54 Fed. Reg. 33168-83 (Aug. 11, 1989).

67 Fed. Reg. 36920-24 (May 28, 2002).

69 Fed. Reg. 2182-282 (Jan. 14, 2004).

73 Fed. Reg. 60612-16 (Oct. 14, 2008).

77 Fed. Reg. 46562-600 (Aug. 3, 2012).

OTHER HNMCP PROJECT PLAN: U.S. NUCLEAR REGULATORY COMMISSION (2020).

JAMES AUSTIN & ANDREW DAVIS, AN INTRODUCTION TO NEW YORK STATE ELECTRIC GENERATION SITING (Dec. 19, 2012), https://sitingcommission.vermont.gov/sites/vegspc/files/documents/publications/NY-Austin-121912.pdf.

Memorandum from Annette L. Vietti-Cook, Secretary to Margaret M. Doane Executive Director for Operations (Oct. 2, 2020) (SRM-SECY-20-0032),

https://www.nrc.gov/docs/ML2027/ML20276A293.pdf.

NRC Management Directive 3.5 (Dec. 23, 2011).

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NUCLEAR REGULATORY COMMISSION, 10 CFR PART 53: LICENSING AND REGULATION OF ADVANCED NUCLEAR REACTORS (Sept. 22, 2020), https://www.nrc.gov/docs/ML2025/ML20254A014.pdf.

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