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Groups Charge Nuclear Agency with IllegallyEliminating Public Participation


Sept. 13, 2004

Groups Charge Nuclear Agency with Illegally Eliminating Public Participation

1st U.S. Circuit Court of Appeals Hears Arguments Today in Boston

WASHINGTON, D.C. – New rules issued by the U.S. Nuclear Regulatory Commission (NRC) violate the public interest and should be overturned, Public Citizen and the Nuclear Information and Resource Service (NIRS) will tell a court today. Judges in the 1st U.S. Circuit Court of Appeals in Boston are scheduled to hear oral arguments today in a case brought by the two Washington-based public interest groups, which charge that the new rules are illegal because they do not require an on-the-record, public hearing during reactor licensing proceedings, as called for by federal law.

Early this year, the NRC modified agency regulations, under 10 C.F.R. Part 2, with the stated goal of injecting added certainty and efficiency into the licensing process.   But Public Citizen and NIRS say the new “Part 2” regulations, as they are commonly called, violate the Atomic Energy Act by eliminating the right to an on-the-record hearing in most agency adjudicatory proceedings.  Further, the groups charge that the NRC acted arbitrarily and capriciously in crafting the rules because: (1) it did so without adequate basis or explanation; (2) the NRC chose to preserve the right to an on-the-record hearing in certain cases for reasons that apply equally to reactor licensing proceedings where hearings were dropped; and (3) the agency eliminated the right to discovery and cross-examination on the unsupported assumption that such procedures are unimportant.

“This is another example of the NRC acting to minimize public participation in and scrutiny of agency actions,” said Wenonah Hauter, director of Public Citizen’s Critical Mass Energy and Environment Program. “The ultimate effect is a reduction in NRC accountability and public safety.”

Even though the new Part 2 rules did not become effective until Feb. 13, 2004, their effects already are being felt because they have been applied to several cases filed before that date.  The new exclusionary rules are being applied in three separate challenges to applications for early site permits for potential nuclear reactors, filed by the energy companies Dominion, Exelon and Entergy in Virginia, Illinois and Mississippi, respectively.  Although the applications were submitted in the fall of 2003, the cases are to be heard under the new Part 2 rules, based on direction from the NRC commissioners.  And in a challenge to a proposed uranium enrichment facility in New Mexico, the application for which was filed in early February 2004, the NRC again mandated that the case proceed under the new Part 2 rules to the extent possible (on-the-record hearings for uranium enrichment facility licensing are required by law).

“The new rules are not just illegal, they’re unreasonably burdensome,” said Michael Mariotte, executive director of NIRS.   “NRC’s stated goal of making the licensing process more ‘efficient’ is a thinly veiled disguise for making it impossible for the public to effectively raise legitimate safety concerns.”

The new rules also require intervenors to submit legal arguments simultaneously with their petitions if they want to challenge the licensing proceedings, giving them a mere 60 days from the NRC’s initial notice of hearing to pore through thousands of pages of a license application, identify issues of contention, hire legal counsel, contract expert witnesses and craft arguments.   Under the old rules, petitioners were allowed up to two months to draft and submit their arguments after the initial filing to intervene.

Nonprofit public interest groups are not the only victims of the new rules.  The state of New Mexico, potentially home to a uranium enrichment plant, has been barred from raising important radioactive waste management issues in legal proceedings concerning the proposed plant, after submitting what the NRC considered to be an incomplete petition under the new, compressed timeline.

During a public comment period on a draft version of the rules in 2001, 1,422 people expressed opposition to the new rules while only nine generally supported NRC’s efforts.  Still, the draft rules were adopted with little substantive change.

Other interveners in this case include Citizens Awareness Network and the National Whistleblowers Center. Attorneys general from Massachusetts, New York, California, New Hampshire, Wisconsin and Connecticut filed amicus briefs in support of the lawsuits.