## Facts

- All U.S. nuclear power plants must have a “containment” structure intended to confine radioactive material during an accident.
- The Nuclear Regulatory Commission (NRC) regulates allowable containment leakage and requires periodic leakage-rate testing under Appendix J to 10 C.F.R. pt. 50.
- Before 1995, Appendix J used a prescriptive testing approach that specified acceptable tests, how to conduct them, how often to conduct them, and how to report them.
- Under the pre-1995 prescriptive system, licensees filed summary reports of all leakage-rate test results, which could be requested by the public.
- In March 1995, the NRC revised Appendix J’s reporting requirements for the prescriptive program (the “March Rule”), relaxing reporting so that only limited results—primarily failed tests—had to be reported rather than all test results.
- Separately, the NRC proposed another rule to allow an optional performance-based testing alternative, where testing frequency depended on past performance rather than fixed schedules.
- The proposed performance-based rule did not create a new reporting policy; it proposed applying the March Rule’s relaxed reporting approach to performance-based test results as well.
- During the public comment period for the performance-based proposal, Dr. Zinovy Reytblatt sent a timely letter (May 4, 1995) strongly objecting to reduced public availability of test information and urging fuller reporting; the letter otherwise did not provide substantive comments on the performance-based testing method itself.
- In early July 1995, the NRC published a public comment resolution. It rejected any suggestion that the agency intended to conceal essential information and summarized Reytblatt’s proposal for more expansive reporting and data handling (including securing computer programs, calculations, and data files).
- After the comment period had closed, Reytblatt sent a second letter (July 28, 1995) attempting to rebut the NRC’s July publication; the NRC did not respond to that late letter in the final rule.
- Ohio Citizens for Responsible Energy (OCRE) also raised concerns that the relaxed reporting from the March Rule reduced information available to the public.
- In September 1995, the NRC issued the final performance-based Appendix J amendments (the “September Rule”), extending the March Rule reporting approach to performance-based testing; the preamble did not discuss Reytblatt’s late July letter.
- Reytblatt and OCRE petitioned the D.C. Circuit for review, arguing the September Rule was arbitrary and capricious because the NRC failed to respond adequately to their comments, especially Reytblatt’s two letters.

## Issues

1. Whether the NRC acted arbitrarily and capriciously under the APA by failing to respond adequately to Reytblatt’s timely comment submitted during the performance-based rule’s notice-and-comment period.
2. Whether the NRC was required to respond in the final rule to Reytblatt’s second letter submitted after the close of the comment period.
3. Whether the NRC acted arbitrarily and capriciously by treating objections about reduced public access to leakage-test information as a general reporting issue already resolved in the March Rule rather than revisiting it in the September Rule.

## Decision

- The D.C. Circuit denied the petition for review and upheld the NRC’s September Rule.
- The court held the NRC’s published response was sufficient as to Reytblatt’s timely May 4 comment.
- The court held the NRC had no obligation to respond to Reytblatt’s late July 28 submission.
- The court accepted the NRC’s treatment of reporting/access complaints as tied to the earlier March Rule, given the September Rule did not newly change reporting policy but extended the March Rule approach to performance-based testing.

## Legal Principles

- In APA notice-and-comment rulemaking, an agency must give a reasoned response to significant, timely comments that bear on the rule being adopted; the agency need not write a point-by-point rebuttal to every statement in a comment.
- Comments submitted after the close of the comment period generally do not trigger a duty to respond in the final rule.
- When a later rule does not newly change an issue (here, reporting obligations) but carries forward an approach adopted in an earlier rulemaking, an agency may treat objections to that carried-forward approach as already handled in the earlier proceeding.
- Under arbitrary-and-capricious review, a rule is sustained if the agency considered the relevant matter, explained its choice, and its response to timely, material comments was reasonable.

## Conclusion

The D.C. Circuit upheld the NRC’s September 1995 performance-based Appendix J amendments because the NRC reasonably addressed the substance of Reytblatt’s timely comment, had no duty to answer his late-filed follow-up letter, and could treat public-access objections to relaxed reporting as a matter tied to the earlier March reporting rule rather than a new question requiring fresh analysis in the September rulemaking.


Reytblatt v. United States Nuclear Regulatory Commission, 105 F.3d 715 (1997)