Reytblatt v. United States Nuclear Regulatory Commission

105 F.3d 715 (D.C. Cir. 1997)

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Nature of the Case

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Facts

D has issued rules governing the permissible rate of leakage from containment systems and requiring periodic leakage rate tests. Prior to September 1995, D incorporated a 'prescriptive approach' to the testing of containment leakage rates. Regulations specified the types of tests that were acceptable, the manner in which they were to be conducted, their frequency, and how they were to be reported. The amendments adopted in September 1995 gave licensees the option of adopting a 'performance-based' approach to containment leakage rate testing as an alternative to compliance with the prescriptive requirements. The frequency of leakage rate testing is not specified but is determined by the results of prior tests. Under the original program, a summary report of the results of all leakage rate tests had to be filed, regardless of whether the licensee believed that the plant had failed or passed the test. These reports were made available to the public pursuant to the Freedom of Information Act (FOIA). Under the new standard, only failed reports were to be filed. D concluded that the regulatory burden on licensees would be less without adversely affecting public health and safety. Dr. Reytblatt (P) did not comment on the March Rule. Ohio Citizens for Responsible Energy (OCRE) filed a timely objection to the proposed modification of reporting requirements on the grounds that it would diminish the public's access to information necessary for public participation in the regulatory process. D concluded that OCRE's comments raised a 'generic issue [that was] better addressed in the context of [the earlier] petition.' D had received numerous comments on the technical aspects of the proposed rule, the only timely comment that mentioned the reporting requirements was contained in a letter dated May 4, 1995, from Dr. Reytblatt (P), an expert in nuclear reactor containment leakage rate testing who frequently commented on NRC proposals involving that subject. Dr. Reytblatt (P) focused primarily on methodologies for conducting and analyzing leakage rate test results. Most importantly he opined that test computer programs, calculations, and files must be copied in real-time mode and deposited with D to prevent their alteration or destruction. This is the most inexpensive and technically perfect way to secure instant access to the test data. D responded in bulk to Dr. Reytblatt (P) along with all other comments. On July 28, 1995, two months after the deadline for comments had passed, Dr. Reytblatt (P) wrote a second letter addressing the Public Comment Resolution, to which the NRC did not respond. OCRE filed timely comments to the September Rule, but these did not deal with the reporting requirements for performance-based testing. Ps only question the reporting requirements under the performance-based option. D made no further comment or reference to the second letter. P petitioned the court claiming that D had arbitrarily and capriciously failed to respond.