UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


NATL WHISTLEBLOWER

v.

NRC


99-1002a

D.C. Cir. 1999


*	*	*


Wald, Circuit Judge: This appeal involves the dismissal by  the Nuclear
Regulatory Commission ("NRC" or "the Com- mission") of a petition by
the National Whistleblower Center,  a citizens' group
("Whistleblower"), to intervene in the first  ever license renewal
proceeding for a nuclear power plant, in  this instance Calvert
Cliffs. The NRC issued a referral order  to an Atomic Safety Licensing
Board ("Board") which pre- scribed a streamlined procedure for the
proceeding, including  a shortened time period for Whistleblower to
file its conten- tions. In the referral order, NRC for the first time
also  adopted a stringent interpretation of the "good cause" stan-
dard in its published rules for extending prescribed time  limits, to
henceforth require a showing of "unavoidable and  extreme
circumstances." See NRC Rules of Practice for  Domestic Licensing
Proceedings and Issuance of Orders, 10  C.F.R. s 2.711 (1999). When
Whistleblower asked the Board  for an extension of time to file its
contentions, the Board  denied its request, applying the "unavoidable
and extreme  circumstances" standard, and the NRC affirmed the
decision.  The NRC subsequently dismissed Whistleblower's petition 
when Whistleblower failed to file contentions within the  NRC's




__________

n * Judge Williams' dissent will be filed at a later date.


Because we conclude that the "unavoidable and extreme  circumstances"
test is effectively an amendment of the Com- mission's regulations
made without notice and comment re- quired by the Administrative
Procedure Act, we vacate the  Commission's decision dismissing the
petition to intervene  and remand to the agency to consider
Whistleblower's motion  for an extension of time under its prior
interpretation of the  "good cause" standard. Recognizing that much
progress has  been made in processing the Calvert Cliffs renewal
applica- tion since a year ago when the contested events occurred, we 
require only that the Commission provide Whistleblower with  a
meaningful opportunity to submit its contentions. If Whis- tleblower
can show "good cause"--under the Board's prior  interpretation--for
its original request for an extension of  time to file contentions and
the contentions satisfy the agen- cy's other published criteria, the
agency must allow Whistle- blower to participate meaningfully in the


I. Background


On July 8, 1998, the NRC published a Notice of Opportuni- ty for a
Hearing in the Federal Register permitting any  interested person to
intervene in the proceeding regarding  the license renewal application
of the Baltimore Gas & Elec- tric Company ("BG&E") to continue to
operate the Calvert  Cliffs Nuclear Power Plant. The Notice of Receipt
of the  application was published in late April but the application
was  not accepted for docketing until May 19. Whistleblower filed  a
petition to intervene on August 7. The July 8 hearing  notice
contained what the Commission later referred to as  "ambiguous"
language paraphrasing sections 2.714(a)(3) and  2.714(b)(1) of its
published regulations to the effect that any  petitioner to intervene
could amend a petition or supplement  contentions1 not later than
fifteen days before the first pre-




__________

n 1 A contention is a specific issue of law or fact which a petitioner 
seeks to have litigated at a hearing. Under NRC rules, a conten- tion
must include a specific statement of the issue of law or fact to  be
argued and the petitioner must support it with a brief explana-


hearing conference. See Baltimore Gas & Elec. Co., Calvert  Cliffs
Nuclear Power Plant, Units 1 & 2; Notice of Opportu- nity for a
Hearing Regarding Renewal of Facility Operating  License, 63 Fed. Reg.
36,966, 36,966 (1998); 10 C.F.R.  s 2.714(a)(3), (b)(1). On August 19,
however, the NRC re- ferred the petition to intervene to an Atomic
Safety and  Licensing Board and gave "guidance" to the Board on how to
 conduct the proceeding. Among other things, the referral  order
directed the Board to adopt a streamlined schedule for  the hearing.
Significantly, the order directed that "the Li- censing Board should
not grant requests for extensions of  time absent unavoidable and
extreme circumstances." Joint  Appendix ("J.A.") at 28. Two days
later, Whistleblower filed  with the Commission a motion to vacate the
referral order as  contrary to the Commission's regulations
prescribing exten- sions of time for "good cause" and allowing
contentions to be  filed fifteen days before an initial prehearing
conference. See  10 C.F.R. ss 2.711(a), 2.714(a)(3), (b)(1). The
Commission  denied the motion on the ground that it has authority to 
shorten the time for filing contentions under section 2.711,  and that
limiting extensions to "unavoidable and extreme  circumstances" merely
gives content to the general "good  cause" standard.


On August 20, the Board issued an initial prehearing order  requiring
Whistleblower to file its contentions by September  11, 1998, and
scheduled the first prehearing conference for  the week of October 13,
later specifying October 15. In  short, Whistleblower was required to
file its contentions  within three weeks after the prehearing order
and thirty-four  days before the prehearing conference. In addition,
the  Board reiterated that any motion for an extension of time  must
"demonstrate 'unavoidable and extreme circumstances'  that support
permitting the extension."




__________

n tion of its bases; a short statement of the facts or expert opinion 
which are intended to support it, together with references to the 
specific documents and sources upon which the petitioner will rely  to
establish the facts or opinion; and sufficient information to show 
that a genuine dispute exists between the intervenor and the 
applicant on a material issue. See Rules of Practice for Domestic 
Licensing Proceedings and Issuance of Orders, 10 C.F.R.  s 2.714(b)(2)


The day after the Board's initial prehearing order, Whistle- blower
filed a motion to extend the time for filing contentions  until
mid-November. Whistleblower based the motion on its  need to retain
experts to review the application and to  provide necessary technical
input, the complexity of the  three-volume relicensing application and
the fact that this  proceeding would inevitably involve novel issues
since it was  the first nuclear power reactor license renewal
proceeding  ever. A week later, on August 27, the Board rejected peti-
tioner's motion for an extension of time, stating that Whistle- blower
failed to meet its burden of establishing "unavoidable  and extreme
circumstances" justifying an extension. Whis- tleblower petitioned the
Commission for interlocutory review  of the decision and on September
17 the Commission issued  an order moving the deadline for contentions
to September  30--subsequently extended to October 1 because of a
Jewish  Holiday. The Commission explained its action by saying that 
Whistleblower might not have anticipated such an early date  for
filing contentions since the language in the July 8 notice  stated
that under section 2.714(b)(1), petitioners could file  contentions
not later than fifteen days prior to the first  prehearing conference.
However, the Commission expressed  general satisfaction with the
Board's streamlined agenda for  the relicensing procedure, concluding
that the Board acted  reasonably in setting an earlier date for filing
contentions  than its published rules provided and in refusing to
extend  the time for filing, and reaffirmed the "unavoidable and 
extreme circumstances" test. In light of the Commission's  action, the
Board subsequently rescheduled the initial pre- hearing conference for
November 12. This meant that Whis- tleblower had to file its
contentions forty-two days before the  prehearing conference, instead
of fifteen days as set out in  the Commission's rules.


On October 1, the due date for filing its contentions under  the
Commission's reprieve, Whistleblower filed a status re- port and a
motion to vacate and reschedule the prehearing  conference. The status
report identified the experts that  Whistleblower had retained, the
"areas of concern" in the  application the experts were studying, and
recited various  alleged defects and omissions in BG&E's license
renewal  application. In the status report and the motion to vacate,


Whistleblower included numerous references to its argument  that it had
"good cause" for an extension of time. In addi- tion, Whistleblower
asserted in its motion to vacate that the  Board and Commission
improperly and prejudicially applied  the stringent "unavoidable and
extreme circumstances" test  in rejecting its motion for enlargement
of time. However,  Whistleblower specifically stated that the status
report was  not to be regarded as its contentions.


On October 13, Whistleblower filed its "first supplemental  set of
contentions." Whistleblower indicated that it retained  the right to
supplement its petition to intervene as provided  in the Commission's
published rules and that it was filing the  contentions without
prejudice to its October 1 motion to  vacate and reschedule the
prehearing conference. The filing  contained two contentions, one
alleging that the renewal  application was incomplete and must be
withdrawn or sum- marily dismissed and another alleging that the
application  failed to meet aging and other safety-related
requirements.  However, Whistleblower did not allege specific facts to
sup- port these contentions, but rather referred to the Requests  for
Additional Information filed by the NRC staff ("RAIs")2  as setting
forth the bases for each contention. On October  16, the Board
concluded that Whistleblower had neither  submitted contentions by the
October 1 deadline nor demon- strated that the October 13 contentions
met the late-filing  standards of 10 C.F.R. s 2.714(a);3 accordingly
it dismissed  Whistleblower's petition to intervene.




__________

n 2 A Request for Additional Information is a demand by the NRC  staff
for important information not present in a license application. 
During a review of any application by the staff, an applicant may be 
required to supply such additional information. See 10 C.F.R.  s
2.102(a). An application may be denied if an applicant fails to 
respond to a request for additional information within 30 days from 
the request or any other time specified. See id. s 2.108.


3 Even if contentions are filed after a deadline for filing, they can 
nonetheless be admitted as late-filed contentions. Late-filed con-
tentions are admitted if the presiding officer makes a finding that 
the contentions satisfy a balancing of factors: good cause for failure
 to file on time; availability of other means to protect the
petitioner's 


The Commission on December 23, 1998 affirmed both the  Board's decision
to reject the motion for an extension of time  and to dismiss the
petition. The Commission said that the  Board had "good cause" to
shorten the normal time provided  in the written regulations for
filing contentions because a  shorter deadline would make the
prehearing conference more  meaningful by allowing the Board and
Whistleblower to con- sider the NRC staff's answer to the proposed
contentions  prior to the scheduled date of the conference. The
Commis- sion once again approved the Board's use of the "unavoidable 
and extreme circumstances" test to reject Whistleblower's  motion for
an extension of time. It reasoned that the test  was a "construction
of 'good cause' " intended as a "reason- able means of avoiding undue
delay in this important license  renewal proceeding, and for assuring
that the proceeding is  adjudicated promptly." J.A. at 345-46.


II. Analysis


The nub of this controversy is whether NRC's new inter- pretation of a
published regulation amounts to an amendment  of the regulation
requiring notice and comment under the  Administrative Procedure Act.
See 5 U.S.C. s 551(5) (1994).  Whistleblower argues that the
Commission departed from its  own published rules when it rejected
Whistleblower's motion  for an extension of time to file contentions
as failing the  "extreme and unavoidable circumstances" standard
instead of  continuing to use the "good cause" standard applied in all
 previous requests for extensions. The Commission responds  that the
"unavoidable and extreme circumstances" test is  merely an
interpretation of the good cause standard, and an  agency is entitled
to deference in construing its own regula- tion. We conclude, however,
that the Commission's new  interpretation of "good cause" so




__________

n interest; whether a petitioner's presence will help develop a sound 
record; whether petitioner's interest will be adequately represented 
by existing parties; and the extent to which a petitioner's partic-
ipation will broaden the issues or delay the proceeding. See 10 
C.F.R. s 2.714(a)(1), (b)(1).


standard, as previously interpreted by the agency, that it  constitutes
an amendment, requiring notice and comment.


A. The Incompatibility of the "Good Cause" and "Unavoid- able and
Extreme Circumstances" Standards


The NRC's published regulations provide that "not later  than fifteen
days prior to the holding ... of the first prehear- ing conference,
the petitioner shall file a supplement to his or  her petition to
intervene that must include a list of conten- tions which petitioner
seeks to have litigated in the hearing."  NRC Rules of Practice and
Procedure for Domestic Licensing  Proceedings and Issuance of Orders,
10 C.F.R. s 2.714(b)(1)  (1999). However, a different provision of the
same Rules  provides: "whenever an act is required or allowed to be
done  at or within a specified time, the time fixed or the period of 
time prescribed may for good cause be extended or shortened  by the
Commission or the presiding officer." Id. s 2.711(a)  (emphasis
added).4 When Whistleblower filed a motion for  an extension of time,
the Board followed the directives of the  Commission's referral order
and applied the "unavoidable and  extreme circumstances" test in
rejecting the motion. Whis- tleblower alleges that the "unavoidable
and extreme circum- stances" test amounts to an amendment of section
2.711 and  is therefore invalid because it was not adopted through


A basic tenet of administrative law is that an agency's  interpretation
of its own regulations is given " 'controlling  weight unless it is
plainly erroneous or inconsistent with the  regulation.' " Thomas
Jefferson Univ. v. Shalala, 512 U.S.  504, 512 (1994) (quoting Bowles
v. Seminole Rock & Sand Co.,  325 U.S. 410, 414 (1945)). However, an
equally well- established administrative law principle provides that
an  agency may not adopt an interpretation of its own regulation 
which either contradicts the plain meaning of the regulation,  see
Ohio Power Co. v. FERC, 954 F.2d 779, 783 (D.C. Cir. 




__________

n 4 Moreover, 10 C.F.R. s 2.714(b)(1) provides that "additional time 
for filing" a supplement to contentions may be granted based on the 
same balance of factors for admitting late-filed contentions. 10 
C.F.R. s 2.714(a)(1), (b)(1).


1992) ("[N]o deference is owed an interpretation at odds with  the
plain meaning of the text."); Guard v. NRC, 753 F.2d  1144, 1148-49
(D.C. Cir. 1985) (noting that "high regard" of  deference to NRC
interpretation of its own regulation "is  appropriate only so long as
the agency's interpretation does  no violence to the plain meaning of
the provision at issue");  Union of Concerned Scientists v. NRC, 711
F.2d 370, 381  (D.C. Cir. 1983) ("[W]hen an agency's interpretation of
its  own rules flies in the face of the language of the rules 
themselves, it is owed no deference."), or fundamentally  changes the
agency's own prior interpretation of the regula- tion. See Hudson v.
FAA, -- F.3d --, --, No. 98-1295, 1999  WL 798067, at * 4 (D.C. Cir.
Oct. 8, 1999) (noting that  " '[o]nce an agency gives its regulation
an interpretation, it  can only change that interpretation as it would
formally  modify the regulation itself: through the process of notice 
and comment rulemaking.' ") (quoting Paralyzed Veterans of  Am. v.
D.C. Arena L.P., 117 F.3d 579, 586 (D.C. Cir. 1997));  Alaska Prof'l
Hunters Ass'n v. FAA, 177 F.3d 1030, 1035  (D.C. Cir. 1999) (striking
down new agency interpretation  that was contrary to advice given for
30 years by its Alaska  office and informal agency statements as an
effective amend- ment of FAA regulations); National Family Planning
and  Reprod. Health Ass'n v. Sullivan, 979 F.2d 227, 239-40 (D.C. 
Cir. 1992) (striking down a Department of Health and Human  Services
interpretation of its own regulation to allow Title X  physicians to
counsel abortion as a method of family planning  contrary to earlier
interpretation by agency barring all Title  X personnel from
discussing the possibility of abortion). The  reason behind this ban
on radical reinterpretation of publish- ed regulations is that "to
allow an agency to make a funda- mental change in its interpretation
of a substantive regulation  without notice and comment would
undermine those APA  requirements." Paralyzed Veterans, 117 F.3d at
586; see  also Shalala v. Guernsey Mem'l Hosp., 514 U.S. 87, 100 
(1995) (concluding that notice and comment rulemaking would  be
required if an agency were to effect "a substantive  change" in its
regulations by adopting a new position inconsis- tent with its


whether the agency adopts the fundamental change in inter- pretation in
a purported policy statement, interpretative rule  or adjudication.
See, e.g., Syncor Int'l Corp. v. Shalala, 127  F.3d 90, 92 (D.C. Cir.
1997) (reinterpretation advanced in  FDA publication labeled a notice
and referred to in its text as  a policy statement); Paralyzed
Veterans, 117 F.3d at 588  (interpretative rule); Caraballo v. Reich,
11 F.3d 186, 195  (D.C. Cir. 1993) (Department of Labor
"interpretative" state- ment expounded in the course of an


While "good cause" appears at first blush an exceedingly  flexible term
(some might say a near-empty vessel, waiting to  be filled), there are
limits to its meaning and to the concept it  represents. The Supreme
Court itself recognized this recent- ly. See Jones v. United States,
-- U.S. --, --, 119 S. Ct.  2090, 2098 (1999) (holding that phrase
"good cause" in 18  U.S.C. s 3593(b)(2)(C), which provides for
impaneling a new  jury in a sentencing hearing if the trial jury has
been  discharged for good cause, "cannot be read so expansively as  to
include the jury's failure to reach a unanimous decision"). 
Furthermore, this court has held that even though a word in  an agency
rule may not have a precise meaning, an agency's  interpretation of
the word is invalid if it is far removed from  the recognized meaning
of the term. See C.F. Communica- tions Corp. v. FCC, 128 F.3d 735, 739
(D.C. Cir. 1997)  (concluding that while the word "premises" does not
have a  single fixed meaning, that "does not convert the word into a 
sort of Rorschach test, permitting the Commission to read  into the
word anything it pleases" and rejecting as plainly  erroneous agency
interpretation divorced from term's estab- lished definition).


Section 2.711 does not itself define "good cause," but the  history of
the regulation makes clear that its purpose was to  give the
Commission flexibility to alter the time limits in its  proceedings
when that course would not unfairly prejudice  the parties. In 1962,
when the agency amended the precur- sor to section 2.711, it explained
that it was "designed to  expedite proceedings without sacrificing the
fair and impartial  consideration of the issues." Revision of Rules,
27 Fed. Reg.  377, 377 (1962). In 1972, the Commission codified
section  2.711 in its present form and included a specific finding


section 2.711 allowed modifications of time limits "in appropri- ate
cases, where it would not prejudice a party." Restructur- ing of
Facility License Application Review and Hearing Pro- cesses, 37 Fed.
Reg. 15,127, 15,129 (1972). Clearly, a balance  of the Commission's
administrative convenience and fair op- portunities for parties to
participate meaningfully in its pro- ceedings was intended.


And indeed, the NRC has in the past consistently interpret- ed good
cause for extending or shortening time to file conten- tions as the
presence of a "good reason" why either the  parties or the Commission
desire changing normal time  schedules. See, e.g., In re Cleveland
Elec. Illuminating Co.  (Perry Nuclear Power Plant, Units 1 & 2), 18
N.R.C. 1400,  1401 (1983) ("Section 2.711 permits the Board to reduce
time  limits where there is a good reason to do so."); United States 
Dep't of Energy Project Management Corp. Tenn. Valley  Auth. (Clinch
River Breeder Reactor Plant), 17 N.R.C. 158,  162 (1983) (construing
10 C.F.R. s 2.714(a)'s requirement of  "good cause" for failure to
file on time as "good reason"); In  re Virginia Elec. & Power Co. (N.
Anna Power Station,  Units 1 & 2), 4 N.R.C. 98, 101 (1976) (same); In
re Duquesne  Light Co. (Beaver Valley Power Station, Unit 2), 7 A.E.C.
 959, 968 (1974) (same). Neither party here disputes that the  new
"unavoidable and extreme circumstances" test for "good  cause"
requires a significantly stronger showing than a "good  reason" for an
extension of time to file a contention. There  can be little doubt
that the "unavoidable and extreme circum- stances" test inevitably
reflects a significant change from the  Commission's prior
interpretation of the "good cause" stan- dard; as such, it falls under
the doctrine that when an agency  has given a regulation an
authoritative interpretation, and  later significantly changes that
interpretation, it has effectu- ated an amendment of that rule which
will be invalid unless it  gives notice and comment. See Alaska Prof'l
Hunters, 177  F.3d at 1034; Paralyzed Veterans, 117 F.3d at 586; see
also  Syncor, 127 F.3d at 94-95 (noting that a modification of an 
interpretation of an agency rule "will likely require a notice  and


The Commission's rejection of Whistleblower's asserted  justifications
for an extension of time--the need for its ex- perts to study the
voluminous application to formulate conten- tions and the novelty and
complexity of issues raised by the  application in the context of the
first license renewal proceed- ing for a nuclear power plant--is also
inconsistent with prior  NRC cases in which the Commission has granted
extensions  of time based on the complexity of the issues involved or
the  need to give experts time to review an application, or both.  See
In re Private Fuel Storage, L.L.C. (Indep. Spent Fuel  Storage
Installation), No. 72-22-ISFSI, 1997 WL 687737, at  *3 (N.R.C. Oct. 7,
1997) (granting extension of time for filing  contentions based on
need of party to provide its experts with  additional time to review
application and the length and  complexity of the application); In re
Northern Ind. Pub.  Serv. Co. (Bailey Generating Station, Nuclear 1),
12 N.R.C.  191, 217 (1980) (finding good cause to treat as timely
conten- tions filed after deadline due to the short time for
preparation  set by Prehearing Conference Order as well as the
complexity  of the newly-filed contentions); In re Commonwealth Edison
 Co. (Zion Station, Units 1 & 2), 6 A.E.C. 827, 827 (1973)  (finding
good cause under section 2.711 for an extension of  time for filing
exceptions and supporting briefs for appeal of  decision due to the
length of the initial decision and the  number and complexity of the
issues involved). Indeed, our  court has held that an agency has an
obligation in an adjudi- cation to follow, distinguish, or overrule
its own precedent  and we have not hesitated to strike down agency
action when  it fails to meet this obligation. See Steger v. Defense
Investi- gative Serv. Dep't of Defense, 717 F.2d 1402, 1406 (D.C. Cir.
 1983) (reversing Merit Systems Protection Board decision to  deny
attorney's fees which disregarded without explanation  factors used in
prior Board decisions for determining if  attorney's fees are
appropriate); Local 777, Democratic Un- ion Org. Comm. v. NLRB, 603
F.2d 862, 872, 882 (D.C. Cir.  1979) (refusing to enforce NLRB
interpretation of "employ- ee" and "independent contractors" in 29
U.S.C. s 152(3)  which did not explain inconsistency with most recent
NLRB  opinion on subject). When Whistleblower offered reasons for 


an extension of time similar to those which the Commission  has
approved in the past, the Board rejected them out of  hand and the
Commission affirmed the Board's decisions,  using the "unavoidable and
extreme circumstances" test with- out explaining or distinguishing its
own prior precedent ap- proving such reasons as qualifying for "good
cause". At no  time did the Commission ever address its own prior
interpre- tation of "good cause" in circumstances like this one when a
 party asks for more time to have its experts review material  in a
complex case. Moreover, the Commission in this case  seems to have
effectuated a result entirely different from its  prior cases where it
found that reasons for delay similar to  those encountered by
Whistleblower constituted "good cause"  for an extension of time.


This court has long held that an agency may not use its  interpretative
powers to " 'constructively rewrite [a] regula- tion' or 'effect a
totally different result.' " Sentara-Hampton  Gen. Hosp. v. Sullivan,
980 F.2d 749, 759 (D.C. Cir. 1992)  (quoting National Family Planning
and Reprod. Health  Ass'n v. Sullivan, 979 F.2d 227, 236 (D.C. Cir.
1992)). This  case is not dissimilar to both Alaska Professional
Hunters  and Syncor. In Alaska Professional Hunters, we invalidated  a
Federal Aviation Administration ("FAA") interpretation of  its own
rules to treat hunting guides who flew clients to and  from hunting
sites as commercial operators contrary to the  prior interpretation of
those rules given as advice to guides  by the FAA's Alaska Region
office for more than thirty years  and informal statements by the
agency that guides were  noncommercial operators. See 177 F.3d at
1035-36. Similar- ly, in Syncor we held invalid 1995 Food and Drug
Administra- tion ("FDA") guidelines which interpreted the registration
 provisions of the Federal Food Drug and Cosmetic Act  ("FFDCA") to
apply to positron emission tomography  ("PET") radiopharmaceuticals
because they differed from  1984 FDA guidelines which stated that
nuclear pharmacists  using the process by which pharmacies compound
PET radio- pharmaceuticals were not required to register under the 
FFDCA. See 127 F.3d at 95-96. Like the FAA in Alaska 


Professional Hunters and the FDA in Syncor, the NRC in  this case has
adopted an interpretation that effects a totally  different result for
a motion for an extension of time prem- ised upon the need to give
experts time to review an applica- tion and to address novel and
complex issues from that which  would have occurred under the prior
"good cause" standard.


Another indicator that the Commission was significantly  changing the
usual meaning of "good cause" when it adopted  the "unavoidable and
extreme circumstances" test is that it  did not apply the same test to
determine if its own reduction  of the normal time allotted to
intervenors to file contentions  was valid. Curiously, the Commission
made no mention of  the "unavoidable and extreme circumstances"
standard when  it shortened intervenor deadlines "for good cause" in
order to  expedite proceedings. The Commission concluded that it had 
"good cause" to do so because the alteration of the time frame  would
permit both the Board and Whistleblower to consider  the NRC staff's
answer to the proposed contentions prior to  the scheduled date of the
prehearing conference whereas  under the NRC's published rules the
staff's answer would not  be due until the day of the conference.
Surely such a reason  does not qualify as an "unavoidable and extreme
circum- stance" and the Commission never said it did. In the absence 
of any explanation of the differing ways in which it interpret- ed the
same phrase depending on whose interests were at  stake, it appears
that the Commission was amending the test  for the intervenors only,
even though the rule itself makes no  such distinction.


Additionally, we note that the Commission has commonly  employed
standards similar to "unavoidable and extreme  circumstances"
elsewhere in its rules, yet has never suggest- ed that they are the
same as "good cause." For example, the  Commission has interpreted
"special circumstances" in its  rule allowing a complete waiver of a
rule where "the applica- tion of the rule ... would not serve the
purposes for which  the rule or regulation was adopted," 10 C.F.R. s
2.758, to  mean that a waiver will only be granted in "unusual and 
compelling circumstances." Public Serv. Co. of N.H. (Sea- brook
Station, Units 1 & 2), 30 N.R.C. 231, 235 (1989); 


Public Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), 29  N.R.C.
234, 239 (1989); In re Northern States Power Co.  (Monticello Nuclear
Generating Plant, Unit 1), 5 A.E.C. 25,  26 (1972). The Commission has
also interpreted its rule  allowing interlocutory review of an order
only if it "[t]hreat- ens ... immediate and serious irreparable impact
which ...  could not be alleviated through a petition for review of
the  ... final decision," or "affects the basic structure of the 
proceeding in a pervasive or unusual manner," 10 C.F.R.  s 2.786(g),
as allowing such review only "in the most compel- ling circumstances."
In re Sequoyah Fuels Corp. (Gore,  Okla. Site), 40 N.R.C. 55, 59
(1994) (citing In re Pacific Gas  & Elec. Co. (Diablo Canyon Nuclear
Power Plant, Units 1 &  2), 8 N.R.C. 406, 410 (1978)). However, we are
not aware of a  single prior instance in which the NRC has described
or  interpreted "good cause" as requiring "unusual," "extreme," 
"unavoidable" or "compelling" circumstances.


There may be good reason for this omission. "Good cause"  does not
ordinarily convey a meaning of "unavoidable and  extreme
circumstances." Virtually every dictionary published  around the time
that section 2.711 was amended to its present  form defined "good
cause" as a legally sufficient cause that is  reasonable under the
circumstances. See, e.g., Webster's  Third New International
Dictionary 978 (1976) ("cause or  reason sufficient in law: one that
is based on equity or justice  or that would motivate a reasonable man
under all the  circumstances"); Black's Law Dictionary 623 (5th ed.
1979)  ("substantial reason, one that affords a legal excuse. Legally 
sufficient ground or reason ... cause as would compel a  reasonably
prudent person ... under similar circumstances  ... that cause that to
an ordinary intelligent man is a  justifiable reason for doing or not
doing a certain thing");  Ballentine's Law Dictionary 527 (3d ed.
1969) ("substantial  reason, a legal excuse ... legal cause ...
reasonable cause").  In contrast, "unavoidable and extreme" has a
quite different  meaning. Although some definitions of "unavoidable
cause"  might conceivably fit within the meaning of "good cause," see,
 e.g., Black's Law Dictionary 1366 ("a cause which reasonably  prudent
and careful men under like circumstances do not and 


would not ordinarily anticipate"); Ballentine's Law Dictio- nary 1311
("a cause which reasonably prudent and cautious  men under like
circumstances do not and would not ordinarily  anticipate"), we think
the additional requirement that the  circumstances be "extreme" as
well as "unavoidable" takes it  into a different realm of outlier
causes rather than reasonable  causes. See, e.g., 5 Oxford English
Dictionary 618-19 (2d ed.  1989) ("Outermost, farthest from the centre
... opposed to  moderate ... Of a case, circumstance, supposition:
Present- ing in the utmost degree some particular characteristic ... 
the utmost point or verge ... an end ... the utmost imagin- able or
tolerable degree of anything"); Black's Law Dictio- nary 528 ("[a]t
the utmost point, edge or border; most  remote. Last; conclusive.
Greatest, highest, strongest, or  the like."); Webster's Third New
International Dictionary  807 ("existing in the highest or the
greatest possible degree;  ... most severe; most stringent ... going
beyond the limits  of reason, necessity or propriety ... situated at
the farthest  possible point from the center"); Ballentine's Law
Dictio- nary 447 ("Outermost; utmost"). These dictionary defini- tions
make the difference between the two standards appar- ent: whereas
"good cause" would allow an extension of time  in situations not due
to negligence that would ordinarily cause  delay, the "unavoidable and
extreme circumstances" standard  would allow extensions only in the
most extraordinary situa- tions. The transfer from the reasonable to
the most unusual  results in a significant reduction of a litigant's
ability to  obtain an extension of time to file contentions.


While we conclude that "unavoidable and extreme circum- stances" is a
fundamental modification of the Commission's  "good reason" definition
of "good cause" requiring notice and  comment, we acknowledge that the
term "good cause" itself  initially affords the agency a great deal of
flexibility and  discretion to decide its content under individual
circum- stances.5 Given the expertise and experience of the NRC 




__________

n 5 The meaning of "good cause" may also be substantially influ- enced
by congressional intent in providing for a "good cause"  exception.
See, e.g., Tennessee Gas Pipeline Co. v. FERC, 969 F.2d 


with licensing, it is most favorably situated to make such a 
determination through the reasonable balancing of agency  and
intervenor interests that is inherent in the term "good  cause"; and
its judgment will in the vast majority of cases be  upheld. It can for
instance require a greater showing of need  for an extension of time
in cases where the Commission's  need to expedite proceedings
significantly outweighs a party's  need for more time. However, this
flexibility does not in- clude authority to constructively amend a
"good cause" stan- dard by adopting an interpretation that departs
radically  from its own precedent, without notice and comment, and 
which it applies only to third parties, not to itself.


B. Prejudice to the Petitioner to Intervene


Only if there is prejudice to a challenging party can agency  action be
invalidated under the APA. See 5 U.S.C. s 706  ("[D]ue account should
be taken for the rule of prejudicial  error."); see also Fried v.
Hinson, 78 F.3d 688, 690-91 (D.C.  Cir. 1996) (citing American Farm
Lines v. Black Ball Freight  Serv., 397 U.S. 532, 539 (1970)). The
Commission argues that  even if it applied the wrong standard to
Whistleblower's  motion for an extension of time, Whistleblower was
not  harmed by this error because the contentions it ultimately 
submitted were patently deficient under NRC regulations  governing the
specificity of contentions. See 10 C.F.R.  s 2.714(b)(2). The
contentions Whistleblower submitted did  not set forth any specific
grounds for its allegations and  merely referred to NRC staff RAIs for
their bases. The  NRC has consistently held that mere references to




__________

n 1141, 1144 (D.C. Cir. 1992) (holding that the APA "good cause" 
exception to notice and comment requirement of agency rulemaking  was
intended by Congress "to be narrowly construed" and limited  to
"emergency situations"); Environmental Defense Fund v. EPA,  716 F.2d
915, 920 (D.C. Cir. 1983) (same); American Fed'n of Gov't  Employees
v. Block, 655 F.2d 1153, 1156 (D.C. Cir. 1981) (deriving  "emergency
situations" test from Senate Report). But cf. Bjella v.  McPeters, 806
F.2d 211, 216 (10th Cir. 1986) (holding that "good  cause" exception
to sanction for late-filed transcripts in Judicial  Conference Report
was not incompatible with individual court plan  allowing exception
only in "unusual or extreme circumstances").


insufficient to meet the specificity requirements under 10  C.F.R. s
2.714. See Rules of Practice for Domestic Licensing 
Proceedings--Procedural Changes in the Hearing Process, 54  Fed. Reg.
33,168, 33,171 (1989) (noting that the Commission  rejects the
argument that "petitioners not be required to set  forth facts in
support of contentions until the petitioner has  access to NRC reports
and documents"); In re Sacramento  Mun. Util. Dist. (Rancho Seco
Nuclear Generating Station),  36 N.R.C. 135, 136 (1992) (holding that
the attempt to incor- porate by reference the questions asked by the
staff concern- ing environmental report fails to comply with the


Even though Whistleblower ultimately submitted conten- tions on October
13 that were deficient under the Commis- sion's specificity
requirements, we think it was nonetheless  prejudiced by the
Commission's use of the "unavoidable and  extreme circumstances" test
to deny its requests for exten- sions at two earlier points in the
proceeding. First, the  extension which Whistleblower originally
requested in August  would have moved the time for filing contentions
back two  months. The Commission's decision to grant Whistleblower  an
extension to September 30th did little to remove any  prejudice from
the Board's denial of its earlier request be- cause by the time it was
granted, Whistleblower had only two  weeks left in which to file.
Additionally, it reinforced the  Board's use of the "unavoidable and
extreme circumstances"  test. We cannot know whether Whistleblower's
original re- quest for a two month extension would have been granted
in  full under the good cause standard. At the very least, it is 
strongly possible that Whistleblower would have received the 
extension because it had asserted factors which had been  approved by
the Commission in the past as sufficient to  justify good cause for an
extension. See, e.g., In re Northern  Ind. Pub. Serv. Co. (Bailey
Generating Station, Nuclear 1),  12 N.R.C. 191, 217 (1980) (finding
good cause to treat as  timely contentions filed after deadline due to
the short time  set for filing contentions in the Order Setting the
Prehearing  Conference and the complexity of the newly-filed conten-


As the Status Report and Motion to Vacate and Reschedule  the Initial
Prehearing Conference filed by Whistleblower on 


October 1 demonstrate, Whistleblower continued to assert  throughout
the aborted proceeding that the "unavoidable and  extreme
circumstances" test was improper, thereby adequate- ly preserving the
issue that it never had time to prepare  adequate contentions.
Moreover, although the October 13  contentions were inadequate,
Whistleblower clearly indicated  on the face of the contentions that
it desired to preserve its  objection that it needed more time (the
contentions were filed  "without prejudice to Petitioner's October 1,
1998 Motion to  Vacate"). J.A. at 225 n.1. Formally, Whistleblower
labeled  its October 13 set of contentions a "first supplemental set
of  contentions," specifically asserting its right to file contentions
 up until fifteen days before the prehearing conference as set  out in
10 C.F.R. s 2.714(b)(1). Therefore, Whistleblower  preserved its
argument that the Commission improperly used  the "unavoidable and
extreme circumstances" test to deny its  motion for an extension of
time even as it filed contentions on  October 13.


Whistleblower was obviously scrambling to come up with  the most
specific contentions it could within the short time it  had to file.
Significantly, Whistleblower actually submitted  additional
information to the Board on October 16, the day  the petition to
intervene was finally rejected. If the "good  cause" standard had been
used to adjudicate Whistleblower's  motion to extend the time for
filing contentions until mid- November, Whistleblower by that time
would likely have  submitted sufficient information to support an
adequate con- tention. In sum, the strong possibility that
Whistleblower  would have been granted an extension until mid-November
 had the "good cause" standard been applied and that it could  have by
that time submitted adequate contentions is sufficient  to show
prejudice. See Presbyterian Med. Ctr. of the Univ.  of Penn. Health
Sys. v. Shalala, 170 F.3d 1146, 1151 (D.C.  Cir. 1999) (concluding
that prejudicial error exists if there is a  possibility that the
error would have resulted in some change  in the final outcome)
(citing Small Refiner Lead Phase-Down  Task Force v. EPA, 705 F.2d
506, 521 (D.C. Cir. 1983));  Weyerhaeuser Co. v. Costle, 590 F.2d
1011, 1031 n.27 (D.C.  Cir. 1978) (concluding that prejudicial error
exists "[I]f [agen- cy] action is improper, and if we cannot be sure


Agency would have reached the same conclusion" if it acted 


III. Conclusion


For the foregoing reasons, we vacate the order of the  Nuclear
Regulatory Commission denying the National Whis- tleblower Center's
petition to intervene and dismissing the  hearing in connection with
Baltimore Gas and Electric Com- pany's license renewal application for
the Calvert Cliffs Nu- clear Power Plant. We remand to the agency to
determine  whether Whistleblower had "good cause" for an extension of 
time to file contentions under the interpretation of "good  cause" the
Commission had employed prior to the Calvert  Cliffs application. If
National Whistleblower Center meets  that standard and if it
subsequently files adequate conten- tions before a new deadline, the
Commission must allow it an  opportunity to meaningfully participate
in the remainder of  the proceeding.


So ordered.