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Brodsky v. U.S. Nuclear Regulatory Commission

August 27, 2009

RICHARD L. BRODSKY, NEW YORK STATE ASSEMBLYMAN, FROM THE 92ND ASSEMBLY DISTRICT IN HIS OFFICIAL AND INDIVIDUAL CAPACITIES, WESTCHESTER CITIZEN'S AWARENESS NETWORK (WESTCAN), ROCKLAND COUNTY CONSERVATION ASSOCIATION, INC. (RCCA), PUBLIC HEALTH AND SUSTAINABLE ENERGY (PHASE), AND SIERRA CLUB -ATLANTIC CHAPTER (SIERRA CLUB), PETITIONERS,
v.
U.S. NUCLEAR REGULATORY COMMISSION, RESPONDENT,
ENTERGY NUCLEAR OPERATIONS, INC., INTERVENOR.



SYLLABUS BY THE COURT

Pursuant to the Hobbs Act, Petitioners seek review of a final order of the U.S. Nuclear Regulatory Commission, granting an exemption from certain fire safety regulations to Entergy Nuclear Operations, Inc., the operator of Indian Point nuclear power plant in Buchanan, NY. We hold that we lack jurisdiction under the Hobbs Act to review exemptions. We also conclude that the order being challenged is indeed an exemption, and not actually an amendment or other order covered by the Hobbs Act.

DISMISSED without prejudice for want of jurisdiction.

The opinion of the court was delivered by: John M. Walker, Jr., Circuit Judge

Argued: May 11, 2009

Before WALKER and WALLACE*fn1, Circuit Judges.*fn2

This case tests the limits of our jurisdiction under the Hobbs Act to review orders of the U.S. Nuclear Regulatory Commission ("NRC" or "Commission"). The NRC is the federal agency that licenses and regulates all nuclear power plants in the United States, including the Indian Point Energy Center ("Indian Point") in Buchanan, NY, operated by Entergy Nuclear Operations, Inc. ("Entergy"). The Atomic Energy Act ("AEA"), which gives the NRC its authority, requires the Commission to hold hearings before taking certain actions, such as granting or amending a license. Petitioners Richard Brodsky et al. contend that the NRC violated this hearing requirement when granting Indian Point an exemption from a fire safety regulation with which it was out of compliance. Petitioners also argue that, apart from the hearing requirement, the exemption is an invalid exercise of the NRC's authority.

Petitioners filed their action in this court pursuant to the Hobbs Act, which vests the courts of appeals with exclusive jurisdiction over NRC orders made reviewable by the AEA. We hold, however, that the Hobbs Act does not give us jurisdiction over NRC exemptions. We also conclude that the order being challenged by Petitioners is indeed an exemption, and not an amendment or other type of NRC order within the ambit of the Hobbs Act. Accordingly, we dismiss the petition without prejudice for lack of jurisdiction.

BACKGROUND

Indian Point, like all nuclear power plants, is licensed and regulated by the NRC, pursuant to the AEA. The AEA requires that, when granting a license, the NRC determine that a plant's operation is "in accord with the common defense and security and will provide adequate protection to the health and safety of the public." 42 U.S.C. § 2232(a). Under the AEA, "all licenses shall be subject to amendment, revision, or modification... by reason of rules and regulations issued [by the NRC] in accordance with [the Act]." Id. § 2237.

The AEA also mandates that the NRC hold hearings, if requested, when taking certain license-related actions:

In any proceeding... for the granting, suspending, revoking, or amending of any license[,]... the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding.

Id. § 2239(a)(1)(A). Additionally, the NRC has promulgated regulations requiring a public notice-and-comment period to precede any amendments to a license. See 10 C.F.R. § 50.91(a).

NRC regulations also permit the agency to grant "exemptions from the requirements of the regulations," as long as (1) the exemptions are "[a]uthorized by law, will not present an undue risk to the public health and safety, and are consistent with the common defense and security," and (2) "special circumstances are present." 10 C.F.R. § 50.12(a). The regulations set out six potential "special circumstances," any of which can justify an exemption. See id. § 50.12(a)(2)(i)-(vi).*fn3 The regulations do not require the NRC to hold hearings for exemptions.

In 1980, the NRC adopted fire safety regulations in response to a nearly catastrophic fire five years earlier at the Browns Ferry power plant. The regulations, inter alia, required nuclear plants to use fire barriers to protect the electrical cables that power the plants' shutdown systems. See Fire Protection Program for Operating Nuclear Power Plants, 45 Fed. Reg. 76,602, 76,608 (Nov. 19, 1980). By shielding these electrical systems, the barriers would improve a plant's ability to shut down its reactors safely after a fire had started. The regulations mandated that ...


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