The Nuclear Regulatory Commission recently issued SRM-SECY-21-0107, in which it approved the NRC Staff’s recommendation to delegate authority to the Atomic Safety and Licensing Board (ASLB) Panel—the independent trial-level adjudicatory body of the NRC—to conduct “mandatory” hearings for certain types of construction permit applications. However, the Commission also noted its intent to conduct such hearings itself in certain first-of-a-kind proceedings.

By way of background, under Section 189 of the Atomic Energy Act of 1954 (AEA), as amended, “mandatory” or “uncontested” hearings are required for every 10 CFR Part 50 application for a construction permit for a nuclear reactor. The AEA also requires the NRC to offer members of the public an opportunity to request a separate “contested” hearing on such applications. The Commission may serve as the “presiding officer” for these hearings or it may delegate that function.

In general, and as noted in the Internal Commission Procedures, the Commission itself conducts “mandatory” hearings for Combined Operating License applications under 10 CFR Part 52 and Construction Permit applications under Part 50 for Medical Isotope Production and Utilization Facilities. Most other types of hearings are referred to the ASLB for resolution in the first instance.

In SRM-SECY-21-0107, the Commission added “the first mandatory hearing associated with a construction permit application for each specific advanced reactor technology design” to the list of hearings it will handle personally. Otherwise, the Commission will delegate later mandatory hearings for that design to the ASLB.

However, this framework is not set in stone. The Commission will retain discretionary authority to withdraw its delegation in proceedings that implicate novel policy issues that would “benefit from more direct Commission involvement.”

As Morgan Lewis continues to counsel and represent NRC-regulated entities regarding advanced reactor applications and their associated “mandatory” and “contested” hearings, we will closely follow developments in this area.