10 C.F.R. § 2.335

Consideration of Commission rules and regulations in adjudicatory proceedings

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(a) Except as provided in paragraphs (b), (c), and (d) of this section, no rule or regulation of the Commission, or any provision thereof, concerning the licensing of production and utilization facilities, source material, special nuclear material, or byproduct material, is subject to attack by way of discovery, proof, argument, or other means in any adjudicatory proceeding subject to this part.

(b) A participant to an adjudicatory proceeding subject to this part may petition that the application of a specified Commission rule or regulation or any provision thereof, of the type described in paragraph (a) of this section, be waived or an exception be made for the particular proceeding. The sole ground for petition of waiver or exception is that special circumstances with respect to the subject matter of the particular proceeding are such that the application of the rule or regulation (or a provision of it) would not serve the purposes for which the rule or regulation was adopted. The petition must be accompanied by an affidavit that identifies the specific aspect or aspects of the subject matter of the proceeding as to which the application of the rule or regulation (or provision of it) would not serve the purposes for which the rule or regulation was adopted. The affidavit must state with particularity the special circumstances alleged to justify the waiver or exception requested. Any other participant may file a response by counter-affidavit or otherwise.

(c) If, on the basis of the petition, affidavit, and any response permitted under paragraph (b) of this section, the presiding officer determines that the petitioning participant has not made a prima facie showing that the application of the specific Commission rule or regulation (or provision thereof) to a particular aspect or aspects of the subject matter of the proceeding would not serve the purposes for which the rule or regulation was adopted and that application of the rule or regulation should be waived or an exception granted, no evidence may be received on that matter and no discovery, cross examination, or argument directed to the matter will be permitted, and the presiding officer may not further consider the matter.

(d) If, on the basis of the petition, affidavit and any response provided for in paragraph (b) of this section, the presiding officer determines that the prima facie showing required by paragraph (b) of this section has been made, the presiding officer shall, before ruling on the petition, certify the matter directly to the Commission (the matter will be certified to the Commission notwithstanding other provisions on certification in this part) for a determination in the matter of whether the application of the Commission rule or regulation or provision thereof to a particular aspect or aspects of the subject matter of the proceeding, in the context of this section, should be waived or an exception made. The Commission may, among other things, on the basis of the petition, affidavits, and any response, determine whether the application of the specified rule or regulation (or provision thereof) should be waived or an exception be made. The Commission may direct further proceedings as it considers appropriate to aid its determination.

(e) Whether or not the procedure in paragraph (b) of this section is available, a participant to an initial or renewal licensing proceeding may file a petition for rulemaking under § 2.802.

[69 FR 2236, Jan. 14, 2004, as amended at 77 FR 46593, Aug. 3, 2012]

Notes of Decisions

Cited in 7 cases, 2006–2016 · leading case: New York v. U.S. Nuclear Regulatory Comm'n, 824 F.3d 1012 (D.C. Cir. 2016).

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New York v. U.S. Nuclear Regulatory Comm'n, 824 F.3d 1012 (D.C. Cir. 2016). · cites it 4× “The Rule incorporates the findings of the GEIS into all future reactor licensing proceedings and precludes reconsideration of those findings absent a waiver under 10 C.F.R. § 2.335 . See 10 C.F.R. § 51.23 (b); 79 Fed.”

Nat. Resources Def. Council v. U.S. Nuclear Regulatory Comm'n, 823 F.3d 641 (D.C. Cir. 2016). · cites it 4× “*647 A party who remains dissatisfied by the Commission’s response to its Category 1-related comment has two final alternatives: that party can (i) petition for a waiver of the NRC regulation (such as Rule L) with respect to that proceeding, see 10 C.F.R. § 2.335 (b); or (ii)…”

Commonwealth of Massachusetts v. US Nuclear Regulatory Commissi, 708 F.3d 63 (1st Cir. 2013). · cites it 3× “12 Massachusetts also included a petition for waiver, seeking to litigate the spent fuel pool accident issues in the individual adjudication, 10 C.F.R. § 2.335 (b), as opposed to challenging it through rulemak-ing.”

New Jersey Dep't of Env't Prot. v. United States Nuclear Regulatory Comm'n, 561 F.3d 132 (3rd Cir. 2009). “” See 10 C.F.R. §§ 2.335 , 2.802. 11 Moreover, the NRC prepared a SEIS that analyzed alternatives at Oyster Creek to mitigate severe accidents.”

Massachusetts v. United States, 522 F.3d 115 (1st Cir. 2008). “10 C.F.R. § 2.335 ; see also Dominion Nuclear Conn.”

San Luis Obispo Mothers for Peace v. Nuclear Regulatory Comm'n, 449 F.3d 1016 (9th Cir. 2006). “Petitioners explained that 10 C.F.R. § 2.335 , which prohibits challenges to any NRC rule or regulation in an adjudicatory proceeding involving initial or renewal licensing, prevented the raising of contentions contesting the adequacy of NRC safety requirements protecting…”

NJ Dept Env Prot v. NRC (3rd Cir. 2009). “” See 10 C.F.R. §§ 2.335 , 2.802.11 Moreover, the NRC prepared a SEIS that analyzed alternatives at Oyster Creek to mitigate severe accidents.”

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