Brodsky v. United States Nuclear Regulatory Comm'n

• Decision Date: 04 March 2011
• Docket Number: No. 09 Civ. 10594(LAP).,09 Civ. 10594(LAP).
• Citation: 783 F.Supp.2d 448
• Parties: Richard L. BRODSKY, et al., Plaintiffs,v.UNITED STATES NUCLEAR REGULATORY COMMISSION, Defendant.
• Court: U.S. District Court — Southern District of New York

783 F.Supp.2d 448

Richard L. BRODSKY, et al., Plaintiffs,

v.UNITED STATES NUCLEAR REGULATORY COMMISSION, Defendant.

No. 09 Civ. 10594(LAP).

United States District Court, S.D. New York.

March 4, 2011.

Richard L. Brodsky, Office of Assemblyman Richard Brodsky, White Plains, NY, Susan Hillary Shapiro, Law Firm of Milton B. Shapiro, Spring Valley, NY, for Plaintiffs.Benjamin H. Torrance, U.S. Attorney's Office, New York, NY, for Defendant.Tracey Ann Tiska, Eva Lenore Dietz, Hogan & Hartson L.L.P., New York, NY, for Intervenor Defendant.

OPINION AND ORDER

LORETTA A. PRESKA, Chief Judge.

Richard L. Brodsky, Westchester's Citizens' Awareness Network, Public Health and Sustainable Energy, and the Sierra Club–Atlantic Chapter (collectively “Plaintiffs”) allege that the United States Nuclear Regulatory Commission (“NRC” or “Commission”) acted unlawfully in granting an exemption to Entergy Nuclear Operations, Inc. (“Entergy”), the owner, operator, and licensee of Indian Point Energy Center ¹ (“IPEC” or “IP3”).

The NRC moves to dismiss the Complaint pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6), or, in the alternative, for summary judgment pursuant to Rule 56. At oral argument, all parties agreed that the case was appropriate for resolution on summary judgment. An administrative record has been submitted to the Court, and it is appropriate that the Court consider that record in reviewing the Commission's actions. Therefore, the Court treats the Commission's motion as one for summary judgment.

For the following reasons, the Commission's motion for summary judgment is granted.

I. BACKGROUND

In 1954, Congress passed the Atomic Energy Act, as amended, 42 U.S.C. § 2011 et seq., (the “AEA” or “Act”). The Act created the Atomic Energy Commission, later renamed the Nuclear Regulatory Commission, to regulate and develop nuclear energy, including all nuclear plant licensing. The AEA is “virtually unique in the degree to which broad responsibility is reposed in the administrative agency, free of close prescription in its charter as to how it shall proceed in achieving the statutory objectives.” Siegel v. Atomic Energy Comm'n, 400 F.2d 778, 783 (D.C.Cir.1968).

In accordance with the AEA, the Commission is charged with determining whether 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). Additionally, under the AEA, the NRC has the power to amend, revise, or modify all licenses, by reason of rules and regulations issued by the Commission, See id. § 2237.

A. The Commission's Fire Protection Program

In 1980, the NRC adopted fire safety rules in response to a nearly catastrophic fire at the Browns Ferry power plant. The fire prompted the NRC to adopt a comprehensive program to prevent, detect, control, and extinguish fires in operating nuclear power plants. In promulgating these rules, the Commission's goal was to design safe, alternative shutdown measures. A nuclear power plant must have duplicate systems for shutting down reactor units in the case of an emergency. The regulations, in part, set in place fire barriers to protect redundant systems that power the plant's shutdown systems. See Fire Protection Program for Operating Nuclear Power Plants, 45 Fed.Reg. 76,602 (Nov. 19, 1980). These rules (codified at 10 C.F.R. § 50.48 and 10 C.F.R. Pt. 50 App. R) are at issue here.²

The Commission's rules provide three fire-safety options that a licensee could adopt to protect duplicate shutdown capacity. Id. These three methods are: (1) separation of cables and equipment of a redundant system by a barrier capable of withstanding fire for three hours; (2) separation of the redundant system by a distance of more than twenty feet with no intervening combustible material or fire hazards, together with fire detectors and an automatic fire suppression system; and (3) enclosure of cable and equipment and associated non-safety circuits of one redundant system in a barrier able to withstand fire for at least one hour, along with fire detectors and an automatic fire suppression system. 10 C.F.R. Pt. 50, App. R, III.G.2 (1980). The final rules stipulated that “alternative shutdown capacity” must be protected by one of these three methods. Id. In this case, Plaintiffs challenge the NRC's decision to grant Entergy an exemption from the third method that requires electrical cables to withstand fire for at least one hour. (Compl. ¶ 15.)

In Connecticut Light and Power Co. v. Nuclear Regulatory Commission, 673 F.2d 525 (D.C.Cir.1982), a licensee challenged the newly-adopted fire protection rules as unreasonable. The court upheld the fire protection program in its entirety and affirmed the Commission's authority to promulgate fire safety rules. Id. When the NRC passed the fire protection program in 1980, it allowed for a thirty-day window for licensees to apply for exemptions from the requirements. See id. at 530. The NRC granted exemptions upon a showing that the required plant modification “would not enhance fire protection safety in the facility or that such modifications may be detrimental to overall facility safety.” 10 C.F.R. 50.48(c)(6); see Conn. Light, 673 F.2d at 530. The Connecticut Light court found the exemption procedure to be “critical” to the new rules. 673 F.2d at 530. Because of different structural designs, not every nuclear power plant could comply with the new fire protection regulations. The court found the exemption process to be integral to the reasonableness of the new rules. The Connecticut Light court held that “[t]he practical effect of the exemption procedure is thus to give utilities a fourth alternative: if the company can prove that another method works as well as one of the three stipulated by the NRC, in light of the identified fire hazards at its plant, it may continue to employ that method.” Id. at 534.

According to the court, the exemption procedure indicated that the NRC did not intend “to limit protective measures to the three methods stipulated in the rule, 10 C.F.R. 50, App. R, III.G.2 (1980).” Id. at 536. Plaintiffs argue that the exemptions in Connecticut Light concerned only those filed within thirty days of the new rules taking effect. Here, neither the Commission nor Entergy discovered that certain electrical cables were non-conforming to the rules established in 1980 until twenty-five years later in 2005. Therefore, the NRC argues that the Connecticut Light rationale for granting exemptions exists under the present circumstances.

B. The Indian Point 3 Nuclear Power Plant

Over approximately the last thirty years, Entergy applied for and received specific exemptions from the fire protection requirements at IP3.³ The instant application to the Commission requested a revision to the earlier granted exemptions. First, in 1984, the NRC granted IP3 exemptions from the Appendix R features in designated areas, including Fire Area ETN–4 (Fire Zones 7A, 60A and 73A). (JA 44–55.) ⁴ At that time, IP3 was employing a fire barrier called Hemyc, which was believed to satisfy the one-hour fire requirement under Appendix R. Based on NRC's investigation, the agency granted IP3 an exemption. ( Id.) The exemption order discussed, among other things, the fire detection and suppression systems, the distance between shutdown systems, and the durability of the glass and asbestos braided cables in the areas based on a series of fire tests. (JA 50–51.) In the end, the Commission concluded that “the existing fire protection for the configuration inside the cable tunnels and electrical penetration area provides an acceptable level of fire protection equivalent to that provided by Section III.G.2.” (JA 51.) Second, in 1987, the NRC revisited the earlier-granted exemption for Fire Area ETN–4 and concluded that the exemption should still be considered valid. (JA 143–45.) Further, the Commission considered an additional exemption request for Fire Area PAB (Primary Auxiliary Building)–2 (Fire Zone 1). (JA 127, 138.) After analyzing the alternative fire protection measures, the NRC concluded that “if a fire occurs in this location, safe shutdown could still be achieved and maintained.” (JA 143.)

In 2005, the NRC discovered that Hemyc was actually nonconforming to its rules. Despite its one-hour fire barrier rating, it could only withstand a fire for 27 to 49 minutes. The NRC informed all licensees in the country of the deficiency with Hemyc cables. (NRC Information Notice 2005–07, JA 167.) The NRC directed licensees to confirm compliance with the existing regulations in light of this new information. (NRC Generic Letter 2006–03, JA 209.)

In June 2006, Entergy notified the NRC to potentially non-conforming Hemyc barriers at IP3. (JA 229.) Based on NRC tests, Entergy revealed that the Hemyc installations at IP3 were declared “inoperable.” (JA 230.) On July 24, 2006, Entergy requested the NRC provide it with revised exemptions from the Appendix R requirements for Fire Areas ETN–4 and PAB–2 which were granted in 1984 and 1987, respectively. (JA 234.) Entergy's position was that a “Hemyc ERFBS [electric raceway fire barrier system] fire resistance rating of 30 minutes will provide sufficient protection for the affected raceways, with adequate margin, to continue to meet the intent of the original request for exemption and conclusions presented in the January 7, 1987 SER [safety evaluation report].” (JA 235.) Entergy attached to its request a safety report to support its revision request. (JA 234–51.) In that evaluation, Entergy discussed, inter alia, the Hemyc fire barriers, structural features in the two fire zones, ignition sources, transient combustible and hot work controls, and fire detection and suppression systems. ( Id.)

In response, on February 2, 2007, the chief of the Commission's Fire Protection Branch requested, by letter, additional information on the requested revision of existing...