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Richard L. Brodsky, New York State Assemblyman, From the 92nd Assembly District, In His Official and Individual Capacities v. United States Nuclear Regulatory Commission

January 7, 2013

RICHARD L. BRODSKY, NEW YORK STATE ASSEMBLYMAN, FROM THE 92ND ASSEMBLY DISTRICT, IN HIS OFFICIAL AND INDIVIDUAL CAPACITIES, WESTCHESTER'S CITIZENS AWARENESS NETWORK (WESTCAN), SIERRA CLUB-ATLANTIC CHAPTER (SIERRA CLUB), PLAINTIFFS-APPELLANTS, PUBLIC HEALTH AND SUSTAINABLE ENERGY (PHASE), PLAINTIFF,
v.
UNITED STATES NUCLEAR REGULATORY COMMISSION, DEFENDANT-APPELLEE, ENTERGY NUCLEAR OPERATIONS, INC., DEFENDANT.



Appeal from an award of summary judgment by the United States District Court for the Southern District of New York (Loretta A. Preska, Chief Judge), in favor of the United States Nuclear Regulatory Commission ("NRC") on plaintiffs' challenge to the NRC's grant of an exemption to the Indian Point nuclear power plant from compliance with certain fire safety regulations.

The opinion of the court was delivered by: Reena Raggi, Circuit Judge:

11-2016-cv

Brodsky v. U.S. Nuclear Regulatory Comm'n

Argued: May 3, 2012

Before: SACK and RAGGI, Circuit Judges, and SWAIN, District Judge.*fn1

A summary order filed today affirms the judgment in part as to those of plaintiffs' challenges that we hold to be without merit. This opinion vacates the judgment in part, insofar as the district court rejected plaintiffs' argument that the exemption was granted in violation of the National Environmental Policy Act's public participation regulations, and remands the matter for further proceedings.

AFFIRMED IN PART, VACATED IN PART, and REMANDED.

On September 28, 2007, defendant United States Nuclear Regulatory Commission ("NRC") granted defendant Entergy Nuclear Operations, Inc. ("Entergy"), an exemption from compliance with certain fire safety regulations at its Indian Point nuclear power plant operating unit No. 3 ("Indian Point 3"), located in Westchester County, New York. In December 2007, plaintiffs Richard Brodsky, a former member of the New York State Assembly; the Westchester's Citizens Awareness Network; and the Sierra Club-Atlantic Chapter, unsuccessfully petitioned the NRC to reopen the exemption proceeding and to hold a public hearing on the merits of Entergy's request. This court dismissed plaintiffs' direct appeal from the NRC's denial of that petition for lack of jurisdiction. See Brodsky v. U.S. Nuclear Regulatory Comm'n, 578 F.3d 175, 180 (2d Cir. 2009). Plaintiffs thereafter commenced the instant action in the United States District Court for the Southern District of New York (Loretta A. Preska, Chief Judge), alleging that the NRC's award of the exemption to Entergy violated the Administrative Procedure Act ("APA"), the Atomic Energy Act ("AEA"), and the National Environmental Policy Act ("NEPA"). On this appeal, plaintiffs challenge the district court's award of summary judgment in favor of Entergy on these claims. See Brodsky v. U.S. Nuclear Regulatory Comm'n, 783 F. Supp. 2d 448, 450 (S.D.N.Y. 2011).

By summary order filed today, we affirm the challenged judgment in all respects but one, which is the subject of this opinion. Specifically, insofar as plaintiffs contend that the NRC granted the challenged exemption in violation of NEPA's regulations, which allow for public involvement where appropriate and practicable, see 40 C.F.R. §§ 1501.4(b), 1506.6(c), we conclude that the agency record does not permit a reviewing court to determine whether a reasoned basis exists for the NRC's decision not to afford any such public involvement in the exemption decision. We therefore vacate the judgment of the district court, which implicitly rejected this argument, with respect to plaintiffs' NEPA challenge only, and we remand this case to the district court with instructions for it in turn to remand to the NRC so that the agency may (1) supplement the administrative record to explain why allowing public input into the exemption request was inappropriate or impracticable, or (2) take such other action as it may deem appropriate to resolve this issue. See Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985) ("[I]f the reviewing court simply cannot evaluate the challenged agency action on the basis of the record before it, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation."). This panel will retain jurisdiction for the purpose of ruling, if necessary, on any appeal from a further district court judgment addressing the agency's action on remand. See United States v. Jacobson, 15 F.3d 19 (2d Cir. 1994).

I. Factual Background

The Atomic Energy Act of 1954 "establishes a comprehensive regulatory framework for the ongoing review of nuclear power plants located in the United States" and vests the Atomic Energy Commission, and its successor agency, the NRC, with broad regulatory power to ensure "that the generation and transmission of nuclear power does not unreasonably threaten the public welfare." County of Rockland v. U.S. Nuclear Regulatory Comm'n, 709 F.2d 766, 769 (2d Cir. 1983); accord Riverkeeper, Inc. v. Collins, 359 F.3d 156, 168 (2d Cir. 2004) (noting NRC's mission to "insure adequate protection of public health and safety from risks associated with nuclear plants"). Pursuant to that authority, in 1980, the NRC upgraded its fire safety rules in response to a catastrophic fire at the Browns Ferry power plant near Decatur, Alabama. See Fire Protection Program for Operating Nuclear Power Plants, 45 Fed. Reg. 76,602 (Nov. 19, 1980); 10 C.F.R. pt. 50, App. R. Regulations authorize the NRC to grant exemptions from specific fire safety protocols, provided the applied-for exemption does "not present an undue risk to the public health and safety," 10 C.F.R. § 50.12(a)(1), and "special circumstances" warrant the exemption, id. § 50.12(a)(2). The exemption process has been recognized to afford a "critical element of flexibility" in potentially cumbersome fire safety compliance by allowing power plants "to show that alternative fire protection systems protect the public safety at the same high level as the system chosen by the Commission." Connecticut Light & Power Co. v. Nuclear Regulatory Comm'n, 673 F.2d 525, 530, 537 (D.C. Cir. 1982).

In both 1984 and 1987, Indian Point 3 secured exemptions from fire safety regulations not relevant here. The grant of these exemptions was by no means pro forma.

As the district court observed, the NRC has had "a long history of reviewing the [fire safety] regulations at [Indian Point 3] and in most cases has denied requests for exemptions." Brodsky v. U.S. Nuclear Regulatory Comm'n, 783 F. Supp. 2d at 452 n.3 (noting that NRC staff recommended granting only eight of twenty-six exemptions requested after regulations took effect).

Existing rules contemplate a "defense-in-depth" approach to fire protection with three objectives: (1) "[t]o prevent fires from starting"; (2) "[t]o detect rapidly, control, and extinguish promptly those fires that do occur"; and (3) "[t]o provide protection for structures, systems, and components important to safety so that a fire that is not promptly extinguished by the fire suppression activities will not prevent the safe shutdown of the plant." 10 C.F.R. pt. 50, App. R, II.A. A plant may satisfy the third objective by enclosing a redundant safety shutdown system in a ...


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