Public Interest Groups' Court Case Forces Nuclear Regulatory Commission to Conduct Public Rulemaking

WASHINGTON, D.C. - The public's right to comment on security
regulations at nuclear power plants has been restored as the result of a
lawsuit filed by Public Citizen and the California environmental group
San Luis Obispo Mothers for Peace, Public Citizen said today.

The groups earlier this year sued the U.S. Nuclear Regulatory
Commission (NRC), accusing the agency of violating federal law on
rulemaking procedures when it issued new rules in 2003 on the "design
basis threat" (DBT) - the terrorist attack scenario that nuclear plants
are required to be able to guard against - without first notifying the
public and allowing an opportunity for public comment.

The U.S. Court of Appeals for the District of Columbia Circuit has now
issued an order that effectively tells the agency to provide the
rulemaking proceeding sought in the lawsuit. Technically, the order
holds the case "in abeyance" to give the agency an opportunity to make
good on its assurance to the court that it now intends to conduct a
proper rulemaking. If the agency fails to live up to that commitment,
the lawsuit would be revived. The order was issued Friday but attorneys
in the case first learned of it late yesterday when they received it by
mail.

The lawsuit asked the court to order the agency to conduct a notice and
comment rulemaking that complied with the Administrative Procedure Act
and the Atomic Energy Act. The agency responded that it was not
required to do so and that the court had no jurisdiction to order it to,
but after briefs were filed in the case and shortly before it was argued
before the appeals court on Sept. 10, the NRC reversed course and
advised the court that it now intended to conduct a rulemaking
proceeding. The court's order followed only a week after the argument.

"What the court has decided to do is wait and see whether the agency
follows through on its commitment to conduct a rulemaking," said Scott
Nelson, the Public Citizen attorney who argued the case. "We'd have
preferred that the court order the agency to engage in rulemaking, but
this order is nearly as good because it makes it pretty clear that the
court expects the agency to live up to its promises."

Yet to be determined is whether the agency's rulemaking will provide a
meaningful opportunity for public comment, given the NRC's penchant for
secrecy regarding security matters, and whether the comments received by
the agency are taken into account in recrafting the rule.

"We'll be watching the NRC closely to make sure they follow through on
the public's right to know," said Wenonah Hauter, director of Public
Citizen's energy program. "This is really something they should have
done a year and a half ago when they issued the rule. It's a shame the
NRC continues to waste so much time in properly upgrading a rule that
was flawed even before September 11."