By Victor Gilinsky, June 25, 2008
Let’s talk about something no one is happy with–citizen and state participation in Nuclear Regulatory Commission (NRC) licensing hearings on nuclear plants and facilities. The industry and commission’s view is that those who are flat out opposed should express themselves somewhere else, instead of tying up NRC hearings with safety issues best left to government experts. But because of federal preemption of safety regulation, states have no say in these matters and there is no somewhere else. Citizens and states can influence nuclear construction only by participating in NRC hearings, which allow only narrow technical arguments.
No matter what their motives, public participants–or interveners, as they are called–should get a fair hearing, but unfortunately, they usually don’t. NRC judges mainly tilt in favor of applicants and the commission’s staff isn’t in hearings the impartial safety evaluator that it should be. Decades ago, the commission’s predecessor agency, the Atomic Energy Commission (AEC), made its regulatory staff a formal party to licensing hearings because the utilities at that time were new to nuclear issues and needed their hands to be held throughout the process, as often did the commission’s administrative judges at that time, as well. This meant–and still means, because the practice continues–that once the NRC technical staff writes its safety report on a facility and the hearing starts, the commission’s lawyers take charge of the case. At that point, the technical staff plays second fiddle to NRC lawyers, whose goal is to obtain a favorable decision. Often these staff lawyers attack the interveners’ right to participate in hearings more ferociously than the applicant’s lawyers do.
Ironically, the AEC originally wanted to draw the public in. It saw hearings as an opportunity to promote nuclear power by demonstrating the care the government took in reviewing the proposed facility’s safety. In actuality, those reviews were pretty spotty and vulnerable to serious criticism.
The AEC’s feeling about public participation in hearings changed to one of irritation in the 1970s, when the opposition began to exploit the commission’s liberal hearing rules to assail its licensing process. Although it’s hard to point to plants that were delayed by frivolous hearings, the enduring myth in the industry is that nuclear power’s woes can be traced back to such cases. As a consequence, since the NRC’s creation in 1975, nothing has occupied its commissioners as much as sidelining public hearing participants from the nuclear licensing process. That’s been the main motive behind so-called licensing reforms for more than 30 years, including the newly combined construction and operating plant license. To be doubly safe, the commission has drastically curtailed the interveners’ right to cross-examination and access to documents. For all its talk about openness, the NRC’s interaction with the public can best be described as repressive tolerance.
Yet public examination of the NRC’s safety reports contributes importantly to safety, if only because, in the words of Paul Cotter, then head of the commission’s administrative judges: “Reports subject to public examination are performed with greater care.” I know from my own experience in the Yucca Mountain nuclear waste repository case that the participation of Nevada’s experts has been absolutely critical to bringing out the key issues.
To increase the fairness of its proceedings, the NRC should remove its staff from hearings as a formal party and keep it focused on safety. The utilities are now highly competent and don’t need NRC handholding. And the NRC lawyers have no business controlling the technical staff on safety issues. Such a step by the commission would also do much for its public standing.
It would take more courage for Congress to take on federal preemption. I believe that nuclear power would ultimately rest on a firmer foundation if its proponents trusted the public more and allowed states to decide whether they want a nuclear facility or not.