National Whistleblower Ctr. v. NRC

The court upholds a Nuclear Regulatory Commission (NRC) decision denying an interest group's request to intervene in a nuclear power plant's license renewal proceeding. The court first holds that the NRC properly adopted an unavoidable and extreme circumstances test, instead of a good-cause test, to assess requests for extensions of time in which to file contentions to the license renewal proceeding. The NRC possesses the authority to change its procedures on a case-by-case basis with timely notice to the parties involved. Here, although the NRC announced its intention to adopt the new standard in a policy statement, which was not binding, it nonetheless informed the interest group and other interested parties of the impending change. More importantly, the interest group received express notice that the new standard would be applied in this case when the NRC adopted the standard in a referral order. The court next holds that the NRC properly adopted the unavoidable and extreme-circumstances test without notice-and-comment rulemaking. Rules that prescribe a timetable for asserting substantive rights are procedural, and unless such rules foreclose effective opportunity to make a case on the merits, they need not be promulgated pursuant to notice-and-comment rulemaking. The adoption of the new standard did not foreclose participation by third parties seeking to intervene in the license renewal proceeding. It merely required parties who failed to meet otherwise reasonable deadlines to demonstrate compelling reasons before they could obtain any extensions of time beyond prescribed deadlines. The court further holds that the NRC's adoption of the new standard was not arbitrary or capricious. A change to procedures in an adjudicatory order is not arbitrary or capricious when it merely refines an existing procedural standard and when no affected party has detrimentally relied on the old standard. The NRC's adoption of a new procedural standard did not significantly or unreasonably change the regime pursuant to which requests for extension of time are judged because the unavoidable and extreme circumstances standard is not off the moorings of good cause. Moreover, the interest group showed no detrimental reliance on the old standard. The court finally holds that the interest group failed to show how the promulgation of the new rule resulted in prejudice or other cognizable harm to them. The group sought and received from the NRC two extensions of time in which to file contentions. When the group failed to meet the extended deadlines, its motion to intervene was properly denied.

The full text of this opinion is available from ELR (16 pp., ELR Order No. L-207).

Counsel for Petitioner
Peter B. Bloch
Atomic Safety and Licensing Board Panel
U.S. Nuclear Regulatory Commission
Mail Stop T3F23, Washington DC 20555
(301) 415-7454

Counsel for Respondents
John F. Cordes Jr., Solicitor
U.S. Nuclear Regulatory Commission
Washington DC 20530
(301) 492-7000/415-7000