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Nuclear Agency Illegally Hid Information From the Public

Sept. 9, 2004

Nuclear Agency Illegally Hid Information From the Public

Court Will Hear Challenge Tomorrow by Public Interest Groups

WASHINGTON, D.C. – The government infringed on the public’s right to know by violating rulemaking procedures when it revised its security regulations for nuclear power plants without notifying the public or providing an opportunity for public comment, said Public Citizen and the California environmental group San Luis Obispo Mothers for Peace today.  The U.S. Court of Appeals for the District of Columbia Circuit will hear oral arguments tomorrow on a lawsuit brought by the two groups against the U.S. Nuclear Regulatory Commission (NRC).

The new regulations, issued on April 29, 2003, revised the “design basis threat” (DBT), the terrorist attack scenario that nuclear plants are required to be able to guard against.  The plant operators’ preparedness is mainly evaluated through “force-on-force” tests – simulations in which a group of mock attackers attempt to gain access to restricted plant areas.

Citing a violation of the Administrative Procedure Act, a law governing agency rulemaking, the groups are asking the NRC to put the new rules through a public rulemaking process, which would allow an opportunity for the reactor states and the public to comment on what should be in the new rule and require the agency to take those comments into account. 

“After taking almost a year and a half following the 9/11 terrorist attacks to even consider upgrading the force-on-force security requirements, the NRC rushed the process by bypassing the public altogether,” said Wenonah Hauter, director of Public Citizen’s Critical Mass Energy and Environment Program. “This failure is not only contrary to principles of open, democratic government and the NRC’s own promises, but ultimately makes plants less secure by limiting the input and ideas received in crafting such important regulations.”

State governments and the public have played a crucial role in the past in holding the industry and NRC accountable on issues of nuclear safety and security.   For instance, the addition of a truck bomb scenario to the DBT in 1995 came mainly as a result of citizen group pressure after the first World Trade Center attack. 

“State agencies that must respond to terrorist acts, public interest groups, and members of the public would all have had great interest in commenting on many aspects of the new rule,  which could have resulted in a stronger regulation,” said Rochelle Becker, project manager with Mothers for Peace. “While NRC internal memos now say the NRC intends to conduct public rulemaking in the future, a public rulemaking should have been undertaken from the beginning.”

Although details of the DBT remain secret for security reasons, some characteristics are publicly known.  For instance, the number of mock attackers has increased and the new tests will take place at a given plant at least once every three years, rather than once every eight years.  In contrast, the U.S. Department of Energy’s sensitive nuclear facilities conduct similar tests annually.  The new rule goes into full effect on Oct. 29.

Critics of security at nuclear power plants have found significant ammunition lately.  In July, the 9/11 Commission stated in its final report that al Qaeda had strongly considered targeting nuclear plants.  Nonetheless, the new DBT evidently does not require plants to take effective measures against possible aircraft attacks by terrorists.  The NRC also received heavy criticism recently for allowing the Nuclear Energy Institute, the industry’s lobbying arm, to hire Wackenhut to perform the new force-on-force tests, given that Wackenhut also holds contracts to guard nearly half the nuclear plants in the country.  And in August, the NRC announced its decision to keep secret all information relating to security inspections and tests, such as the new force-on-force tests, and any enforcement actions taken as a result of those findings.

The oral arguments will be heard at 9:30 a.m. in the principal courtroom of the U.S. Court of Appeals for the D.C. Circuit, located on the fifth floor of the federal courthouse at 333 Constitution Avenue, N.W.