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Court Allows NRC to Hold Informal Public Hearings in Reactor Licensing Proceedings

Dec. 13, 2004

Court Allows NRC to Hold Informal Public Hearings in Reactor Licensing Proceedings

But Court Makes Clear That Challenges Can Be Made

WASHINGTON, D.C. – The U.S. Nuclear Regulatory Commission (NRC) can hold informal public hearings during reactor licensing proceedings, but parties can file case-by-case challenges where such procedures fall short of ensuring a fair hearing, the 1st Circuit U.S. Court of Appeals in Boston has ruled in a case filed by Public Citizen and the Nuclear Information and Resource Service (NIRS).

Until the NRC modified its 10 C.F.R. Part 2 regulations last Feb. 13, the public had the right to full, on-the-record hearings in all reactor licensing proceedings. These hearings were similar to federal court trials, and included discovery and cross-examination of witnesses. On Feb. 20, Public Citizen and NIRS challenged these new “Part 2” regulations, charging that they violate the Atomic Energy Act by eliminating the right to these formal hearings in most agency adjudicatory proceedings.

According to the court’s decision, “Should the agency’s administration of the new rules contradict its present representations or otherwise flout this principle [of full and true disclosure of the facts], nothing in this opinion will inoculate the rules against future challenges.”

“The court does not say that the NRC can scuttle the process required by federal law,” said Wenonah Hauter, director of Public Citizen’s Critical Mass Energy and Environment Program. “In fact, the decision makes it clear that NRC must permit the necessary procedures, including cross-examination, for a fair hearing decision.” 

The court upheld the NRC’s ability to limit discovery and cross-examination, but rejected the idea that those can be eliminated, saying that “the Commission’s new rules may approach the outer bounds of what is permissible” under the Administrative Procedures Act.

“It is extremely unfortunate that the court agrees that the new rules could result in less information available to the public and that the NRC’s explanation for limiting discovery is ‘thin,’ yet chose to give such a high degree of deference to the NRC,” said Michael Mariotte, executive director of NIRS. “At the same time, the decision draws a line in the sand and prevents the NRC from distorting the public hearing process any further.”

The court stated that “the NRC came perilously close to violating [the Administrative Procedures Act] here, with […] unfortunate consequences for efficient administrative process and effective appellate review.” The court concluded, “There is a victory here for the NRC, but it should be a cause for self-examination rather than jubilation.”

Other petitioners in this case include Citizens Awareness Network and the National Whistleblower Center.   Attorneys general from Massachusetts, New York, California, New Hampshire, Wisconsin and Connecticut filed an amicus brief in support of the petitioners.