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Groups Challenge Nuclear Regulatory Commission’s Attempt to Issue Rules by Fiat

July 1, 2003

Groups Challenge Nuclear Regulatory Commission’s Attempt to Issue Rules by Fiat

Public Citizen and San Luis Obispo Mothers for Peace File Court Challenge to NRC Order Revising Nuke Security Rules Without Public Input


WASHINGTON, D.C. — Public Citizen and the California environmental group San Luis Obispo Mothers for Peace have asked a court to review the procedures the federal government used earlier this year to revise regulations pertaining to nuclear plant security nationwide.

The U.S. Nuclear Regulatory Commission (NRC) revised the regulations without notifying the public or providing an opportunity for public comment. This violates the Administrative Procedure Act, a law governing agency rulemaking. The groups filed the petition late Monday in the United States Court of Appeals for the D.C. Circuit.

The NRC issued orders on April 29, 2003, revising the NRC regulation specifying the so-called “design basis threat,” which tells nuclear plant operators what types of terrorist attacks their security plans must be designed to resist. What the new rule requires is unknown, because the NRC has designated the “design basis threat” as information that cannot be released to the public.

Although the NRC revised the rule without seeking public input, the agency said that it did consult the nuclear industry. The groups’ petition for review challenges the NRC action based on longstanding principles of administrative law that require agencies that issue regulations of general applicability, such as the “design basis threat” rule, to follow the notice and comment process.

“We’re concerned about the way this rule was handled,” said Lisa Gue of Public Citizen’s Critical Mass Energy and Environment Program. “The public must have an opportunity to counter industry pressure for security measures that are tailored to serve its economic interests rather than the public’s need for protection. There is a disturbing trend toward secrecy and the exclusion of the public from NRC decisionmaking. We recognize that the rulemaking process in this area has to be carried out with due regard to protecting safeguards information, but that can’t justify bypassing rulemaking procedures altogether.”

The petition asks the court to require the agency to go through a rulemaking process that would allow meaningful public participation before issuing any final revision to the “design basis threat,” but it does not ask the court to forbid the agency from maintaining its new standard as an interim measure while a rulemaking proceeds.

“If the new rule has tightened security requirements, that’s at least a step in the right direction,” said Gue. “In no way do we want to prevent the agency from addressing security vulnerabilities at nuclear facilities. But when the agency issues a rule, we have got to insist that it go about it properly.”

Click here to view a copy of the petition.


The San Luis Obispo Mothers for Peace is concerned about the dangers of nuclear power, weapons and waste on national and global levels. For more information, click here.