A federal judge yesterday lifted the immediate threat of jail for the five members of the Nuclear Regulatory Commission -- at least temporarily.
U.S. District Judge Edward Curran canceled a court hearing scheduled for this morning at which the commissioners were supposed to explain why a commission budget meeting was held behind closed doors despite a court order banning secret budget meetings.
Earlier this week Curran told NRC lawyers that he wanted the commissioners present at the hearing. "At that time I will decide whether or not to hold them in contempt" of court, he said. "And if I do, they are going to jail."
But following requests from NRC and Justice Department lawyers for a postponement pending an appeal to a higher court, Curran agreed to delay the contempt hearing.
The commission contends it did not breach the court order, issued in July, and that the budget strategy meeting in question falls under exemptions in the Sunshine Act, designed to open up government decision-making.
The NRC's difficulties began when Common Cause -- a strong supporter of the Sunshine Act -- filed suit last year challenging the NRC's practice of holding closed budget-making sessions.
The commission opened up some meetings this year, but last month's session with the Office of Management and Budget was closed. Common Cause asked for a contempt hearing in July, following Curran's injunction against closed meetings.
NRC lawyers claim the budget meeting does not fall under the scope of the judge's order, and that releasing the transcripts would cause irreparable harm. Len Bickwit, NRC general counsel, said yesterday the meeting concerned internal strategy and should be exempt under the Sunshine Act. It was similar to one side in a negotiating session sitting down ahead of time to work out its strategy, he said.
Common Cause responded yesterday by filing a motion for the hearing to proceed. Don Simon, a Common Cause attorney: "I think basically they are trying to avoid having the commissioners show up in court."
Simon said Common Cause is not concerned so much with the specifics of the NRC meeting as with maintaining the principle of open government. He said while other agencies have been respecting the requirement to hold open budget meetings, the NRC has not been following it.