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


NATL WHISTLEBLOWER

v.

NRC


99-1002c

D.C. Cir. 2000


*	*	*


Edwards, Chief Judge: The petition for review in this case  presents a
claim by the National Whistleblower Center  ("Center") seeking to
overturn a decision by the Nuclear  Regulatory Commission ("NRC" or
"Commission") denying  intervention by the Center in a nuclear power
plant license  renewal proceeding. The relicensing at issue involves
the  Calvert Cliffs nuclear facilities operated by Baltimore Gas & 
Electric ("BG&E"). This is the second time that this matter  has come
before this court. On November 12, 1999, the court  issued a judgment
holding that the NRC erred in rejecting  the Center's petition to
intervene in the Calvert Cliffs license  renewal proceeding. See
National Whistleblower Center v.  NRC, No. 99-1002, Slip. Op. (D.C.
Cir. Nov. 12, 1999). Fol- lowing a sua sponte inquiry by the court,
however, this  judgment was vacated, see National Whistleblower Center
v.  NRC, 196 F.3d 1271 (D.C. Cir. 1999), and the case was  reargued
before the court on March 2, 2000. Upon reconsid- eration, we deny the
Center's petition for review.


Any third party seeking to participate in a relicensing  proceeding
must file a motion to intervene, followed by a  timely submission of
"contentions." A contention is a specific 


issue of law or fact that the third party seeks to have  adjudicated;
it must be substantiated by an explanation of its  bases, a statement
of supporting facts or expert opinion,  appropriate references and
citations, and sufficient informa- tion to indicate that a genuine
dispute exists between the  party seeking to intervene and the
applicant. The Center's  problems in this case arose when it failed to
make a timely  filing of contentions in support of its petition to
intervene in  the Calvert Cliffs relicensing proceeding.


The Center complains that the NRC erred in applying an  overly rigid
standard in assessing their requests for exten- sions of time.
According to the Center, the Commission was  required to adhere to a
well-established "good cause" test in  considering petitions for
extensions of time. The NRC re- plies, in turn, that it gave clear
notice in a published policy  statement and in a subsequent referral
order in the Calvert  Cliffs proceeding that the agency intended to
adopt a stream- lined schedule in license renewal proceedings. The
referral  order specifically directed that "the Licensing Board should
 not grant requests for extensions of time absent unavoidable  and
extreme circumstances." In re Baltimore Gas & Elec.  Co., Order
Referring Petition for Intervention and Request  for Hearing to Atomic
Safety and Licensing Board Panel,  CLI-98-14,6 (Aug. 19, 1998),
reprinted in Joint Appendix  ("J.A.") 23, 28.


We hold, first, that the NRC was free to adopt, without  resort to
notice-and-comment rulemaking, the "unavoidable  and extreme
circumstances" standard for application in the  Calvert Cliffs
proceeding, so long as affected parties had  proper notice of the
standard and it was not arbitrary and  capricious, or otherwise in
violation of the law. There is no  doubt here that the agency's policy
statement and subsequent  referral order at the start of the Calvert
Cliffs proceeding  gave the Center and other interested parties
adequate notice.  Furthermore, the agency's adoption of the
"unavoidable and  extreme circumstances" standard did not reflect any
arbi- trary and capricious, or otherwise unlawful action. The re-
vised standard was not an extreme departure from the "good  cause"


Commission; and the agency was not bound by any law to  adhere to the
old "good cause" standard.


Furthermore, on the record at hand, the Center can show  no cognizable
injury. The disputed "unavoidable and extreme  circumstances" test was
undoubtedly applied once, when the  Licensing Board denied the
Center's request for an extension  of time to file contentions.
However, that action was re- versed by the NRC when it granted the
Center's petition for  more time. The Center thereafter failed to meet
the extend- ed deadline. The Center claims that it filed a subsequent 
motion for an extension upon missing the extended deadline,  but the
record belies this claim. And, even assuming, ar- guendo, that the
October 1, 1998 filings to which the Center  refers can be viewed as a
request for an additional extension  of time, it is clear that those
filings do not indicate even good  cause for the purported request. In
other words, the Center  was not denied any extension of time that
might otherwise  have been obtained if the Commission had applied the
"good  cause" standard. Thus, the Center suffered no prejudice from 
the agency's application of the disputed "unavoidable and  extreme


The record in this case indicates that the contested motion  to
intervene was properly denied by the Commission, because  the Center
failed to submit the required contentions within  the prescribed
deadline. Accordingly, the petition for review  is hereby denied.


I. Background


The Calvert Cliffs relicensing process officially commenced  on April
8, 1998, when BG&E applied to renew its licenses to  operate the
nuclear power plant. A few weeks later, the  application was made
public and the Commission announced  that interested third parties
would have an opportunity to  request a hearing. See Notice of Receipt
of Application, 63  Fed. Reg. 20,663 (1998). On May 19, 1998, the
Commission  accepted BG&E's application for docketing, again noted
that  the application was publicly available, and again announced 
that third parties would be afforded an opportunity to request 


a hearing. See Notice of Acceptance for Docketing of the  Application,
63 Fed. Reg. 27,601 (1998). On July 8, 1998, the  NRC published a
notice outlining the rights of third parties to  seek a hearing in the
Calvert Cliffs proceeding. See Notice  of Opportunity for a Hearing,
63 Fed. Reg. 36,966 (1998).  The July 8 Notice indicated that anyone
seeking a hearing  would be required to file a request and an
application to  intervene by August 7, 1998. The Notice also indicated
that  such parties would be required to file "a supplement to the 
petition to intervene which must include a list of contentions  which
are sought to be litigated in the matter." Id. at 36,966.


The Calvert Cliffs case is the first of many nuclear power  plant
license renewal proceedings. In view of the anticipated  large number
of license renewal applications, and also in  response to "recent
experience and criticism of agency pro- ceedings," the Commission
announced its intention to stream- line procedures for adjudicatory
actions before the agency.  Policy on Conduct of Adjudicatory
Proceedings, 63 Fed. Reg.  41,872, 41,873 (1998). The NRC recognized
that "the oppor- tunity for hearing should be a meaningful one"; the
Commis- sion, however, noted that "applicants for a license are also 
entitled to a prompt resolution of disputes concerning their 
applications." Id. Accordingly, in this policy statement, the 
Commission "identified certain specific approaches for its  boards to
consider implementing in individual proceedings, if  appropriate, to
reduce the time for completing licensing and  other proceedings." Id.
In particular, the Commission stat- ed that requests for extensions of
time should only be granted  "when warranted by unavoidable and


A few days after issuance of the policy statement, the  Center filed a
petition to intervene in the Calvert Cliffs  proceeding. The
Commission referred the motion to inter- vene to an Atomic Safety and
Licensing Board ("Board") for  further action. See In re Baltimore Gas
& Elec. Co., Order  Referring Petition for Intervention and Request
for Hearing  to Atomic Safety and Licensing Board Panel, CLI-98-14 
(Aug. 19, 1998), reprinted in J.A. 23. The NRC's Referral  order
contained a number of directives to the Board, includ-


ing limitations on the scope of the proceeding and a suggested 
schedule for completing the proceeding. Drawing from its  policy
statement, the Commission instructed the Board not to  grant "requests
for extensions of time absent unavoidable and  extreme circumstances."
Id. at 6, reprinted in J.A. 28.


On August 20, 1998, the Licensing Board issued an Initial  Prehearing
Order. See In re Baltimore Gas & Elec. Co.,  ASLBP No. 98-749-01-LR,
Memorandum and Order, Initial  Prehearing Order (Aug. 20, 1998),
reprinted in J.A. 42. The  order contained deadlines for submissions
as well as other  procedural directives. Specifically, the order
directed the  Center to file its required contentions by September 11,
1998,  and noted that a prehearing conference would be held during 
the week of October 13. The order also stated that any  requests for
extensions of time were to be submitted three  business days before
the due date for the pleading and  emphasized that such requests must
"demonstrate 'unavoid- able and extreme circumstances.' " Id. at 10,
reprinted in  J.A. 51.


The day after the Board issued its Prehearing Order, the  Center filed
two motions, one directed to the Commission  requesting that it vacate
the referral order, and another  directed to the Board requesting that
it extend the time for  contentions and delay the prehearing
conference until at least  December 1, 1998. In the Motion to Vacate,
the Center  objected to the NRC's directive that extensions of time be
 granted only in "unavoidable and extreme circumstances."  The Center
argued that "[i]t is illegal and improper for the  [Commission] not to
follow the 'good cause' standard" set  forth in 10 C.F.R. s 2.711(a).
Petition's [sic] Motion to  Vacate Order CLI-98-14, 7 (Aug. 21, 1998).
In denying the  motion to vacate, the NRC stated that the agency had 
"plenary supervisory authority over its adjudications and 
adjudicatory boards," which "allows it to interpret and cus- tomize
its process for individual cases." In re Baltimore Gas  & Elec. Co.,
Memorandum and Order, CLI-98-15, 6-7 (Aug.  26, 1998), reprinted in
J.A. 55, 60-61. The Commission also  noted that the unavoidable and
extreme circumstances stan- dard "simply gives content ... to [the]


cause' standard." Id. at 6-7 n.5, reprinted in J.A. 60-61 n.5.  For
these and other reasons, the Commission denied the  Center's Motion to
Vacate.


The Board, in turn, denied the Center's Motion for En- largement of
Time. The Board held that the Center had  failed to demonstrate the
requisite "unavoidable and extreme  circumstances" required to justify
an extension of time. See  In re Baltimore Gas & Elec. Co., ASLBP No.
98-749-01-LR,  Memorandum and Order, Denying Time Extension Motion 
and Scheduling Prehearing Conference, 3 (Aug. 27, 1998),  reprinted in
J.A. 65, 67. Accordingly, the Center's deadline  for submitting
contentions remained September 11, 1998.  The Center, however, filed
no contentions on September 11.  Instead, it filed a Petition for
Review with the Commission  appealing the Board's denial of its
request for an extension.  The Center argued that the Board was wrong
to deny it an  extension of time, and that the deadline for
contentions was  itself improper. Under the current schedule, the
Center  argued, it "should have had ... until September 30, 1998 to 
make the required filings." Petition for Review, 6-7 (Sept.  11,


The Commission acquiesced. While it stood by the Board's  application
of the "unavoidable and extreme circumstances"  test, the Commission
nonetheless granted the Center until  September 30, 1998, to file its
contentions. See In re Balti- more Gas & Elec. Co., Memorandum and
Order, CLI-98-19  (Sept. 17, 1998), reprinted in J.A. 71. The next
day, the  Center filed a motion asking the Board to delay the prehear-
ing conference, or, in the alternative, provide for a one-day 
extension to accommodate a Jewish holiday. See Petitioner's  Motion to
Vacate Pre-Hearing Conference or in Alternative  for an Extension of
Time (Sept. 18, 1998). The Board denied  the request to delay the
prehearing conference, but granted  the one-day extension, making the
Center's contentions due  October 1, 1998. See In re Baltimore Gas &
Elec. Co.,  ASLBP No. 98-749-01-LR, Memorandum and Order, Sched- uling
Matters and Electronic Hearing Database (Sept. 21,  1998), reprinted


The Center missed the extended October 1, 1998 deadline.  No
contentions were filed on that date. Rather, the Center  filed a
"Status Report," a "Motion to Vacate and Re-Schedule  the Pre-Hearing
Conference," and a "Motion Requesting to  be Informed of Communication
Between the NRC Staff and  Applicant." The Center also filed an answer
to questions  raised about its standing. The Status Report listed the 
experts hired by the Center and the areas of concern that  they would
cover. In the Motion to Vacate, the Center noted  that the
Commission's staff had submitted "Requests for  Additional
Information" ("RAIs") to BG&E and that BG&E  was not required to
submit its responses to the RAIs until  November 21, 1998. The Center
argued that it would be  prejudicial and unfair to the Center to
require it to submit its  contentions before BG&E had submitted its
responses to the  RAIs. Thus, the Center argued, "the pre-hearing
conference  should be postponed until no sooner than 115 days after 
[BG&E] submits its response to the RAI." Petitioner's Mo- tion to
Vacate and Re-Schedule the Pre-Hearing Conference,  6 (Oct. 1, 1998).
The Motion Requesting to be Informed of  Communication Between the NRC
Staff and Applicant asked  that the Center be included on the agency's
service list for  written communications and given notification of


It was not until October 13, 1998, when the Center finally  filed two
purported contentions. Subsequently, on October  16, 1998, the Board
dismissed the Center's petition to inter- vene. The Board held that
the Center had "failed to estab- lish cause" for an extension, failed
to file any contentions  before the prescribed deadline, and failed to
show that the  contentions filed on October 13 met the late-filed
contention  standards. In re Baltimore Gas & Elec. Co., ASLBP No. 
98-749-01-LR, Memorandum and Order, Denying Interven- tion
Petition/Hearing Request and Dismissing Proceeding,  19-20 (Oct. 16,
1998), reprinted in J.A. 315, 333-34. The  Center then sought review


The Commission upheld the Board's dismissal, rejecting  the Center's
argument that it was denied extensions of time  to which it was
entitled under the "good cause" standard. 


Although the NRC defended the "unavoidable and extreme  circumstances"
test, it found no need to apply it. Rather, the  Commission held that
the Center's "complete failure to pro- vide specific information about
its concerns precluded any  finding that 'good cause,' in a meaningful
sense, justified [the  Center's] requested extensions of time prior to
[October 1st]."  In re Baltimore Gas & Elec. Co., Memorandum and
Order,  CLI-98-25, 10-11 (Dec. 23, 1998), reprinted in J.A. 336, 345-
46. The Commission also upheld the Board's decision to  reject
contentions filed by the Center on October 13, both  because the
Center failed to meet the late-filed contention  standards, and also
because the purported contentions were  wholly inadequate. This appeal


II. Analysis


The Center has voiced many objections in protesting the  NRC's actions
in this case. Almost all of the objections are  plainly meritless. One
objection, however, warrants our at- tention. That one objection rests
on the Center's claim that  the NRC erred in adopting and applying an
"unavoidable and  extreme circumstances" test, in lieu of a "good
cause" test, to  assess requests for extensions of time in which to
file conten- tions in the Calvert Cliffs nuclear power plant license
renewal  proceeding. We reject this claim, because the Commission  was
fully justified in adopting the disputed test and, also,  because the
Center suffered no prejudice in the Commission's  application of the
new standard.


A. NRC's Authority to Change an Adjudicatory Rule


The Center contends that the Commission erred in apply- ing the
"unavoidable and extreme circumstances" test to its  requests for
extensions of time. The correct standard, ar- gues the Center, is the
"good cause" test articulated in the  Commission's regulations. The
Commission argues that the  "unavoidable and extreme circumstances"
test simply gives  content to "good cause." Moreover, the NRC adds,
the  adoption of the new standard resulted in no breach of law, 
because the "Commission implemented it with a case-specific 
adjudicatory order." Supp. Br. for Respondents at 9. The 


Commission has the better of this argument. We are in  complete accord
with the Seventh Circuit's position that the  NRC possesses the
authority "to change its procedures on a  case-by-case basis with
timely notice to the parties involved."  City of West Chicago v. NRC,
701 F.2d 632, 647 (7th Cir.  1983) (citing NLRB v. Bell Aerospace Co.,
416 U.S. 267, 294  (1974)). There is no claim here that the Center
lacked timely  notice of the new "unavoidable and extreme
circumstances"  standard. The Commission announced its intention to
adopt  the standard in a policy statement published on August 5, 
1998. Although the policy statement, alone, was not binding,  it
nonetheless informed the Center and other interested  parties of the
impending change. See Panhandle Eastern  Pipe Line Co. v. FERC, 198
F.3d 266, 269 (D.C. Cir. 1999)  ("Th[e] advance-notice function of
policy statements yields  significant informational benefits, because
policy statements  give the public a chance to contemplate an agency's
views  before those views are applied to particular factual circum-
stances."). More importantly, the Center received express  notice that
the new standard would be applied in the Calvert  Cliffs proceeding
when the Commission adopted the standard  in its referral order to the
Licensing Board. Indeed, the  Center responded to this notice when it
objected to the  referral order, and to the "unavoidable and extreme
circum- stances" test specifically, in its August 21, 1998 Motion to 
Vacate. See Petition's [sic] Motion to Vacate Order  CLI-98-14, 7


In short, the Center's argument that the Commission  lacked authority
to change an adjudicatory rule is simply  wrong.


B. The "Unavoidable and Extreme Circumstances" Stan- dard is a
"Procedural" Rule that Was Properly Adopted  Without
Notice-and-Comment Rulemaking


We also hold that the disputed "unavoidable and extreme  circumstances"
standard embodies a procedural rule. Rules  that "prescribe[ ] a
timetable for asserting substantive rights"  are procedural. Lamoille
Valley R.R. Co. v. ICC, 711 F.2d  295, 328 (D.C. Cir. 1983). And
unless such rules "foreclose 


effective opportunity to make one's case on the merits," they  need not
be promulgated pursuant to notice-and-comment  rulemaking. Id.


The disputed agency action in this case merely altered a  standard for
the enforcement of filing deadlines; it did not  purport to regulate
or limit the Center's substantive rights.  In other words, the new
rule was procedural, not substantive.  See JEM Broadcasting Co. v.
FCC, 22 F.3d 320, 327-28 (D.C.  Cir. 1994) (holding that a rule
governing the content and  timing of case filings is "procedural,"
even when it arguably  "encodes the substantive value judgment that
applications  containing minor errors should be sacrificed to promote
effi- cient application processing"). As the court noted in JEM, 
"agency housekeeping rules often embody a judgment about  what
mechanics and processes are most efficient." Id. at 328.  This does
not convert a procedural rule into a substantive  one.


The NRC has expressed a clear and reasonable goal of  expediting
nuclear power plant license renewal proceedings,  both to accommodate
the large number of cases to be heard  and to ensure fair processes
for applicants and would-be  intervenors alike. The adoption of the
"unavoidable and  extreme circumstances" standard did not foreclose
partic- ipation by third parties seeking to intervene in the Calvert 
Cliffs proceeding; rather, to facilitate expedited case process- ing,
the new rule 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 Center argues that, under Lamoille Valley, the NRC  could not adopt
the "unavoidable and extreme circumstances"  standard except through
notice-and-comment rulemaking, be- cause the new rule, in conjunction
with the other rules on  intervention, "create[d] a regime which
renders it impossible  for the public to set forth substantive
contentions." Petition- er's Supp. Br. at 10-11 (citing Lamoille
Valley, 711 F.2d at  328). This is a specious claim. The Commission's
determina- tion to expedite license renewal proceedings resulted in


schedules. However, would-be intervenors were not denied  an effective
opportunity to be heard. BG&E's application  was publicly available
for five months prior to the time when  the Center was required to
submit contentions. Even using  the Center's preferred starting date,
i.e., July 8, 1998 (when  the NRC published a notice outlining the
rights of third  parties to seek a hearing in the Calvert Cliffs
proceeding), the  Center still had 85 days to prepare its contentions.
This was  a sufficient amount of time, especially considering that the
 default period for submitting contentions is only 75 days. See  Rules
of Practice, 43 Fed. Reg. 17,798, 17,799 (1978) (estab- lishing that a
pre-hearing conference is normally set 90 days  after the initial
hearing notice and noting that contentions are  normally to be
submitted 15 days prior to the prehearing  conference, thus allowing
75 days between the initial hearing  notice and the default deadline


Thus, given that the prescribed deadline for filing conten- tions did
not itself foreclose effective opportunity to be heard,  a fortiori,
the Commission's decision to tighten the standard  for granting
extensions of time did not, as the Center claims,  "create a regime
which render[ed] it impossible for the public  to set forth
substantive contentions."


C. NRC's Adoption of a New Procedural Standard Easily  Survives
"Arbitrary and Capricious" Review


The only remaining question at issue is whether the NRC's  adoption of
the new procedural standard in the Calvert Cliffs  proceeding was
"arbitrary, capricious, an abuse of discretion,  or otherwise not in
accordance with the law." 5 U.S.C.  s 706(2)(A). It was not. 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.  See,
e.g., Bell Aerospace, 416 U.S. at 294-95; Ruangswang v.  INS, 591 F.2d
39, 44-45 (9th Cir. 1978).


NRC's adoption of a new procedural standard did not  significantly or
unreasonably change the regime pursuant to  which requests for
extensions of time are judged, because the  "unavoidable and extreme
circumstances" standard is not off 


the moorings of "good cause." See City of Orrville v. FERC,  147 F.3d
979, 988 n. 11 (D.C. Cir. 1998) (noting that the  Commission was
within its discretion to use adjudication to  refine its regulation's
"good cause" standard to require a  showing of "extraordinary
circumstances"); In re Bjella, 806  F.2d 211, 216 (10th Cir. 1986) (en
banc) ("There is no signifi- cant distinction between a showing of
good cause and a  showing of unusual or extreme circumstances.").


Moreover, the Center has shown no detrimental reliance in  this case.
The Center was bound to follow prescribed dead- lines for the
submission of required contentions. They had  no basis upon which to
assume that those deadlines automati- cally would be waived upon
request pursuant to the old good  cause standard. Indeed, the Center
has offered nothing to  indicate that, in preparing their contentions,
they acted to  their detriment on the assumption that their requests
for  extension of time would be favorably considered pursuant to  the
old good cause test. Quite frankly, such an argument  would be


In short, the Commission did not abuse its discretion in  adopting the
"unavoidable and extreme circumstances" test in  the Calvert Cliffs
adjudicatory proceeding. The Center  makes a weak argument that the
Commission's new procedur- al rule was arbitrary and capricious,
because the agency  offered no adequate explanation for the changed
policy. See  Petitioner's Supp. Reply Br. at 3. We disagree. As previ-
ously noted, the Commission's policy statement that immedi- ately
preceded the adoption of the adjudicatory order in the  Calvert Cliffs
proceeding fully explained the need for expedit- ed case processing.
63 Fed. Reg. at 41,873-74. Given the  wide latitude an agency has in
designing its own proceedings,  see Vermont Yankee Nuclear Power Corp.
v. Natural Re- sources Defense Council, 435 U.S. 519, 524-25 (1978),
the  NRC's decision to expedite case processing in license renewal 
proceedings to accommodate an impending heavy docket was  well within
the realm of the agency's discretion. The policy  statement, which was
expressly cited in the Commission's  referral order to the Licensing
Board, adequately supported  the Commission's adoption of the
"unavoidable and extreme 


circumstances" test. The agency action easily survives arbi- trary and
capricious review.


D. The Center Has Shown No Prejudicial Error


In the end analysis, this case appears to be much ado about  nothing.
The Center has complained strenuously about the  NRC's adoption of a
new standard under which the agency  will assess requests for
extensions of time in which a petition- er must file contentions. But
the Center has offered abso- lutely nothing to show how the
promulgation of the new rule,  even if, arguendo, in error, resulted
in prejudice or other  cognizable harm to them. See 5 U.S.C. s 706
("[D]ue account  shall be taken of the rule of prejudicial error.");
see also  Fried v. Hinson, 78 F.3d 688, 690-91 (D.C. Cir. 1996) (dis-
missing petitioner's claim for lack of a showing that he had  been
prejudiced by the agency's adoption of modified proce- dures). We can
find no prejudicial error in this case.


The Center's first request for an extension of time was filed  with the
Licensing Board on August 21, 1998. See Petition- er's Motion for
Enlargement of Time (Aug. 21, 1998). The  Board denied the request,
applying the "unavoidable and  extreme circumstances" test. The Center
petitioned the  Commission for review, claiming that, under the
current  schedule, it was entitled until September 30, 1998 "to make 
the required filings." See Petition for Review, 6-7 (Sept. 11,  1998).
The Commission overturned the Board's decision,  granted the petition
for review, and allowed the Center an  extension of time until
September 30, 1998 in which to file  contentions. Subsequently, the
Center requested "a one day  extension of the September 30, 1998
filing date" to accommo- date a Jewish holiday observed by
Petitioner's attorneys.  Petitioner's Motion to Vacate Pre-Hearing
Conference or in  Alternative for an Extension of Time, 2 (Sept. 18,
1999). This  request was also granted. See In re Baltimore Gas & Elec.
 Co., ASLBP No. 98-749-01-LR, Memorandum and Order,  Scheduling
Matters and Electronic Hearing Database (Sept.  21, 1998), reprinted
in J.A. 74. The Center missed the  extended deadline, failing once
again to file contentions within  the prescribed time limit.


On October 1, rather than file the required contentions, the  Center
filed four different documents, none of which was  labeled as a
request for an extension. The Center argues  that its October 1
"Motion to Vacate and Re-Schedule the  Pre-Hearing Conference" should
be construed as a request  for an extension. Even if the so-called
Motion to Vacate  could be viewed as a request for a further extension
of time in  which to submit contentions, the Center's position would
still  fail. The principal problem here is that the motion was not a 
supported request for an extended deadline. Rather, it pre- sented an
argument that the Center should not be required to  submit contentions
before BG&E had submitted responses to  staff RAIs. At oral argument,
counsel for the Center candid- ly conceded that, as propounded in the
Motion to Vacate, "the  RAI's were our peg." See Tr. of Oral Argument
March 3,  2000 at 49. This "peg," however, provided absolutely no 
support for a request for a further extension of time. It is  clear
that, under prevailing law, the Center had no right to  the RAIs. See
Union of Concerned Scientists v. NRC, 920  F.2d 50, 55-56 (D.C. Cir.
1990). In fact, at oral argument,  counsel conceded that the Center
"did not have a right to  discovery or the RAIs." See Tr. of Oral
Argument March 3,  2000 at 49. This being the case, it can hardly be
claimed that  the Center could condition the filing of contentions on
receipt  of RAIs and answers thereto.


At oral argument, counsel for the Center cited the Commis- sion's Rules
of Practice for Domestic Licensing Proceed- ings--Procedural Changes
in the Hearing Process, 54 Fed.  Reg. 33,168 (Aug. 11, 1989), in an
effort to bolster the claim  that the Center had a right to view RAI
material before  submitting contentions. Under the cited provision,
"an inter- vention petitioner has an ironclad obligation to examine
the  publicly available documentary material pertaining to the 
[nuclear power] facility in question with sufficient care to  enable
the petitioner to uncover any information that could  serve as the
foundation for a specific contention." Id. at  33,170. In other words,
a potential intervenor must review  the NRC Public Document Room for
any materials that  might be relevant to formulating contentions. See


Argument March 3, 2000 at 49-50. According to the Center,  in order to
satisfy this rule, a potential intervenor must have  access to the
RAIs (which are kept in the Public Document  Room) before it can be
required to file contentions. The  Public Document Room argument comes
much too late. The  argument was never presented to the Commission and
it was  not raised in any of the many briefs that have been submitted 
to the court in this case. The claim is, in a word, untimely.  See
United Transp. Union v. Surface Transp. Bd., 114 F.3d  1242, 1244
(D.C. Cir. 1997); Cronin v. FAA, 73 F.3d 1126,  1134 (D.C. Cir.


Even if we were to view the Public Document Room  argument as one that
naturally flows from the Center's other  claims on RAIs, and thus
properly within the compass of the  petition for review before this
court, we would nevertheless  reject the argument as patently
specious. The cited regula- tion merely says that an intervention
petitioner is obliged "to  examine the publicly available documentary
material." Obvi- ously, if a document has not been filed in the Public
Docu- ment Room, or if it is filed too late to be considered by an 
intervention petitioner, then the petitioner cannot be held 
responsible for reviewing it. Nothing in the rule suggests  otherwise.
Therefore, we must surmise that the Center's  belated Public Document
Room argument is nothing more  than an attempt to avoid the clear
policy that denies would-be  intervenors any entitlement to RAIs as a
condition precedent  to filing contentions.


There can be no doubt that, on the record before us, the  Center
suffered no prejudicial error when the Commission  adopted the new
"unavoidable and extreme circumstances"  standard in the Calvert
Cliffs proceeding. The Center sought  and received from the NRC two
extensions of time in which  to file contentions. When they failed to
meet the extended  deadlines, their motion to intervene was properly


III. Conclusion


For the reasons given above, the petition for review is  denied.