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Natural Resources Defense Council, Inc. v. United States Nuclear Regulatory Commission

United States Court of Appeals for the District of Columbia Circuit · 1982 · Civil Procedure

Civil ProcedureAdministrative LawAgency ProcedureNuclear RegulationNEPAagency consistencyfair noticeinterpretation of own regulations

Facts

The Department of Energy requested an exemption under 10 C.F.R. § 50.12 so that site preparation activities for the Clinch River Breeder Reactor could begin before a construction permit issued. After an informal proceeding receiving written and oral submissions, the NRC granted the exemption and authorized the activities, concluding the § 50.12 factors favored early site preparation. Petitioners argued that the NRC had to follow the ordinary procedures in § 50.10 or comply with its own prior interpretation limiting § 50.12 to extraordinary situations. The Commission did not identify exigent circumstances justifying use of § 50.12 even though § 50.10(e) may have been available.

Issue

Whether the NRC could authorize pre-permit site preparation for the Clinch River project through the exemption procedure in 10 C.F.R. § 50.12 without following the ordinary § 50.10 procedures or explaining why § 50.12 was properly available under the Commission's own settled interpretation limiting that provision to exigent circumstances.

Rule

When an agency has given a settled interpretation to its own regulation, fair notice requires that it not alter that interpretation suddenly and sub silentio. Accordingly, if the NRC has interpreted 10 C.F.R. § 50.12 as available only in extraordinary or exigent circumstances, it must either identify and explain those circumstances before invoking § 50.12 or instead proceed under the ordinary adjudicatory procedures of 10 C.F.R. § 50.10.

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The Federal Reactor Siting Board in Maryland has long stated in published adjudications that its waiver regulation may be used only in emergency conditions when immediate action is necessary and the usual hearing route is unavailable. It nevertheless approves early blasting and grading for a proposed reactor site after only written submissions, without mentioning any emergency or why the ordinary hearing process could not be used.

If nearby landowners seek review, what is the strongest argument for remand?

Explanation. The majority held that when an agency has adopted a settled interpretation of its own regulation, fair notice forbids a sudden and sub silentio departure from that interpretation. If the agency has limited its exemption or waiver provision to extraordinary or exigent circumstances, it must identify and explain those circumstances before using that route; otherwise it must proceed under the ordinary adjudicatory mechanism.