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Reytblatt v. NRC

ELR Citation: 27 ELR 20756
Nos. 95-1578, 105 F.3d 715/(D.C. Cir., 02/07/1997)

The court upholds the U.S. Nuclear Regulatory Commission's (NRC's) final rule amending the reporting requirements for performance-based containment leakage rate testing by nuclear power plants. The court first holds that a nuclear power expert and citizen group have standing under the Hobbs Act to challenge the rule. Plaintiffs are "parties" because each participated in NRC's informal rulemaking by filing comments on the proposed rule. They are also aggrieved in that they have both constitutional and prudential standing. The actual or imminent injury requirement is met because the new rule's restriction on plaintiffs' access to leakage rate testing data makes it more difficult for them to determine whether they have a basis for filing a petition pursuant to 10 C.F.R. §2.206(a). The causation and redressability requirements are also met, despite the fact that a prior rule eliminated the more stringent reporting requirements for all leakage rate tests. There is no question that the challenge was always limited to the reporting requirements under the performance-based option and the relief they seek—vacatur of the new rule—could remedy their injury by requiring NRC to undertake a new rulemaking. And plaintiffs fall within the zone of interests protected by the Atomic Energy Act (AEA). The challengers arguably need access to information relating to successful as well as failed tests in order to exercise their rights under AEA.

Next, the court holds that NRC's response to the expert's concerns over the reporting rules and his accusation that NRC had maliciously intended to preclude the public from obtaining access to test data was adequate. Although NRC did not directly respond to the expert's suggested alternatives to the reporting requirements, its explanation was adequate in light of the general nature of the expert's comments and the fact that the primary focus of the new rule was the establishment of a new performance-based approach rather than modification of existing reporting requirements. The court then holds that NRC did not err in failing to address the expert's letter in response to the public comment resolution that was written two months after the comment period expired. The court sees no basis for obliging an agency to specifically address untimely comments merely because it has indicated that it would take them into consideration. Last, the court notes that the citizen group and expert are free to petition NRC to conduct a new rulemaking that would increase the reporting requirements under both the prescriptive and the performance-based options.

Counsel for Petitioners
Eric R. Glitzenstein
Meyer & Glitzenstein
1601 Connecticut Ave. NW, Ste. 450, Washington DC 20009
(202) 588-5206

Counsel for Respondents
Grace H. Kim
U.S. Nuclear Regulatory Commission, Washington DC 20530
(301) 492-7000

Before EDWARDS, Chief Judge, WALD, Circuit Judge, and BUCKLEY, Senior Circuit Judge.