Nuclear Commission Avoids Accountability in Secret Rule Change

The Nuclear Regulatory Commission illegally issued new orders, without opportunity for public participation, that secretly change terrorism preparedness requirements for nuclear facilities, according to a challenge filed by two citizen groups and recently argued in a federal appeals court. Citizen action groups Public Citizen and San Luis Obispo Mothers for Peace petitioned the D.C. circuit appeals court for review when the Nuclear Regulatory Commission (NRC) revealed that it had changed the "design basis threat" (DBT) standards, which define the threats of terrorism and sabotage against which nuclear facilities must be protected. NRC announced the changes in a Federal Register notice -- not as a notice of proposed rulemaking, in which the public would have an opportunity to submit its assessment of the changes, but as an order abruptly declaring that the old DBT is now superseded by a new DBT outlined in an attachment that would remain hidden from public view. A Context of Failure and Secrecy "The steps that should be taken to protect nuclear installations against terrorist attacks are a matter of great public concern and a legitimate subject for public discussion and debate, even -- or perhaps especially -- when such discussion may lead to the revelation of flaws in security procedures that require a remedy for the protection of the public," the petitioners explained. NRC's secret rulemaking process and undisclosed DBT standards make such public scrutiny impossible. This challenge coincides with several recent criticisms of NRC for not doing enough to protect the public with improved nuclear facility safeguards.
  • The Government Accountability Office (GAO) discovered that nuclear power plant security teams failed 54 percent of the time to defeat attackers in mock attack drills, except when the facilities artificially increased security levels above the requirements of their normal security plans.
  • The Project on Government Oversight revealed that NRC allowed the nuclear energy industry's own lobby to create the mock terrorist teams used to test nuclear power plant security -- and the lobby, in turn, contracted with the same firm that already supplies security services to most nuclear facilities. In other words, the same company that secures nuclear facilities was allowed to judge its own performance and that of its competitors.
  • The GAO testified that NRC's review of nuclear facility security may be lacking. NRC has visited only four or five plants to inspect security plans; for all the others, it is relying on simple check-list forms submitted by nuclear power plant owners.
Moreover, the secret DBT rulemaking is only one of several recent examples of excessive secrecy at NRC:
  • NRC announced in August that it would hide all information about nuclear facility security -- even the success or failure of the new mock terrorist drills, with which the GAO discovered significant weaknesses, and NRC's enforcement of security requirements.
  • The Atomic Safety and Licensing Board, the NRC's adjudicatory arm, ruled against the government for failing to disclose information about the controversial Yucca Mountain Project.
  • That same board declined to allow a public hearing on environmental justice concerns about a company's attempt to expand a facility located in a low-income and minority area.
Further, it is not the only example of NRC attempting to avoid the requirements of an open, accountable regulatory process. Public Citizen and the Nuclear Information and Resource Service have recently argued a separate federal court case against NRC for issuing rules that truncate public participation in licensing decisions, by forcing concerned members of the public to file all their legal arguments simultaneously with their motion to intervene in a licensing case. The rule change, which eliminates the on-the-record, public hearings required by federal law, shortens the amount of time intervenors would have to prepare their arguments from four months to two. About the Challenge The petitioners argued that the Administrative Procedure Act and the Atomic Energy Act required NRC to submit DBT changes to an open rulemaking process in which the public would have an opportunity to participate. A previous court decision in Union of Concerned Scientists v. NRC, 711 F.2d 370 (D.C. Cir. 1983), interpreted the Atomic Energy Act requirement of a hearing before NRC may issue "rules and regulations dealing with the activities of licensees," 42 U.S.C. § 2239(a), as adopting the Administrative Procedure Act's requirements of notice-and-comment rulemaking while specifically excluding the APA's "good cause" exemptions from public rulemaking procedures. Because NRC's DBT order specifically noted that it superseded the long-established DBT regulations in 10 C.F.R. § 73.1, the petitioners argued, and because it creates policies applicable prospectively across the board, it must be considered a regulation. The closed rulemaking process and the secret details of the rule make the entire DBT change an impermissible secret rulemaking, leaving communities in the dark about the security of nuclear facilities in their own backyards. NRC in fact admits that it allowed the nuclear power industry, but not the public, to participate in the DBT rulemaking. The petitioners discovered that NRC Commissioner Edward McGaffigan. Jr., addressed a conference two weeks before the order was issued and confessed that "cleared industry representatives" were allowed to shape the resulting order. The government's arguments in response are complicated and clever, if not persuasive.
  • NRC argued that the order was not a rule at all. Even though the order explicitly states that it supersedes the DBT regulations of 10 C.F.R. § 73.1, NRC attempted to back away from the breadth of that claim and offered the post hoc explanation that it only supplemented existing DBT regulations with the new order. The word "supersede" was, NRC argued, merely an "inartful" mistake.
  • NRC also argued that the petitioners failed to exhaust their administrative remedies. The argument makes little sense, however, because there were no administrative processes in which the public could participate. NRC did announce a post hoc opportunity for hearings after the issuance of the order, but a previous court decision in similar circumstances held that the statute of limitations for petitions for judicial review of a procedurally defective rule runs from the date that the rule is issued. Had the petitioners waited to go through the post hoc process before filing their court challenge, they would have run down the clock and lost forever their right to petition the court. NRC argued against the relevance of that precedent by highlighting a trivial distinction that does not, ultimately, undermine the general principle of the case.
  • NRC argued that the petitioners were capriciously attempting to use the courts to force NRC to adopt a notice-and-comment rulemaking process in lieu of an adjudication for the issuance of its order. This argument blurs the process by which NRC created the order with the two subsequent licensing decisions in which it reiterated and applied the new DBT order. NRC had already issued the challenged order, which it subsequently appended to its two licensing decisions, before the licensing hearings. Moreover, the order is a rule of general applicability to all NRC licensees, not an application of a general principle to specific factual details that is the hallmark of an adjudicatory decision.
The case was argued on Sept. 10, before a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit.
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