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

• Decision Date: 07 January 2013
• Docket Number: Docket No. 11–2016–cv.
• Citation: 704 F.3d 113
• Parties: 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.
• Court: U.S. Court of Appeals — Second Circuit

704 F.3d 113

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.

Docket No. 11–2016–cv.

United States Court of Appeals,Second Circuit.

Argued: May 3, 2012.

Decided: Jan. 7, 2013.

Richard L. Brodsky, Esq., White Plains, NY, for Plaintiffs–Appellants.

Benjamin H. Torrance (Sarah S. Normand, on the brief), Assistant United States Attorneys, on behalf of Preet Bharara, United States Attorney for the SouthernDistrict of New York, New York, NY, for Defendant–Appellee.

Kelly A. Berkell, Office of Assemblywoman Amy R. Paulin, Scarsdale, NY, for Amicus Curiae New York Legislators.

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

REENA RAGGI, Circuit Judge:

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, see40 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, 105 S.Ct. 1598, 84 L.Ed.2d 643 (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. SeeFire 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 barrier that will withstand a fire for at least one hour, if accompanied by fire detectors and an automatic fire suppression system. See id. III.G.2.

Since at least 1987, Indian Point 3 has relied on a fire barrier called Hemyc, originally rated for one hour of fire protection, to satisfy the third objective of the NRC's fire safety regulations. The NRC first began to develop concerns about Hemyc's effectiveness in 1999, prompting renewed testing of that material. On April 1, 2005, the NRC informed its licensees that Hemyc and another fire barrier material, MT, did not perform for one hour as designed because of shrinkage of the material during testing. Later that month, NRC staff held a public meeting with licensees and interested members of the public to discuss these concerns.

In May 2005, a number of citizen groups petitioned the NRC pursuant to 10 C.F.R. § 2.206 to modify or suspend the operating licenses of various nuclear power plants, including Indian Point 3, that were using Hemyc or MT for fire safety, arguing that the plants were “operating in violation of NRC fire protection requirements ... resulting in a degradation of defense-in-depth fire protection and safe shut down in the event of a significant fire.” All Nuclear Power Plants That Use Hemyc/MT Fire Barriers, 71 Fed.Reg. 3,344–01, 3,345 (Jan. 20, 2006) (notice of decision under § 2.206). On January 20, 2006, the NRC granted the citizens groups' petition in part, publicly stating that it would “review all affected plants in detail” in an effort to “take appropriate actions to resolve the issues with the use of Hemyc [ ] material commensurate with the safety significance of the protected systems.” Id.; see also In re Carolina Power & Light Co. (Shearon Harris Nuclear Power Station, Unit 1; H.B. Robinson Plant, Unit 2), 63 N.R.C. 133, 140 (2006) (stating that NRC shared citizens groups' concerns and was addressing Hemyc “performance issues in an expeditious manner”). Pursuant thereto, on April 10, 2006, the NRC issued a generic letter entitled “Potentially Nonconforming Hemyc and MT Fire Barrier Configurations,” directing all its power plant licensees to evaluate their facilities to ensure compliance with applicable fire safety regulations and to furnish information confirming such compliance.

In its June 8, 2006 response to this NRC directive, Entergy reported that Indian Point 3 was not in compliance with agency fire safety protocols due to its use of Hemyc. Entergy stated that it had instituted compensatory measures, such as conducting hourly fire-watch tours and ensuring the operability of its fire detection systems. On July 24, 2006, Entergy applied to the NRC for an expansion of its existing exemptions to require only a 30–minute fire resistance rating in two areas of Indian Point 3 protected by Hemyc. By August 16, 2007, however, Entergy had concluded that it could not guarantee satisfaction of a 30–minute resistance rating in one of the areas and sought NRC allowance for a 24–minute rating at that site.

On August 27, 2007, the NRC's Fire Protection Branch recommended granting Entergy the requested exemption. On September...