Riverkeeper, Inc. v. Collins

• Decision Date: 24 February 2004
• Docket Number: Docket No. 03-4313.
• Citation: 359 F.3d 156
• Parties: RIVERKEEPER, INC., Petitioner, v. Samuel J. COLLINS, Director, Office of Nuclear Reactor Regulation, Dr. William Travers, United States Nuclear Regulatory Commission, Entergy Nuclear Indian Point 2, LLC, Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc., Respondents.
• Court: U.S. Court of Appeals — Second Circuit

359 F.3d 156

RIVERKEEPER, INC., Petitioner, v. Samuel J. COLLINS, Director, Office of Nuclear Reactor Regulation, Dr. William Travers, United States Nuclear Regulatory Commission, Entergy Nuclear Indian Point 2, LLC, Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc., Respondents.

Docket No. 03-4313.

United States Court of Appeals, Second Circuit.

Argued: January 9, 2004.

Decided: February 24, 2004.

Karl S. Coplan, Pace Environmental Litigation Clinic, Inc. (Nicolette Witcher,

Paula Butler, and Jason C. D'Ambrosio, on the brief), White Plains, NY, for Petitioner.

Jared K. Heck, Attorney, U.S. Nuclear Regulatory Commission (Karen D. Cyr, General Counsel, John F. Cordes, Jr., Solicitor, E. Leo Slaggie, Deputy Solicitor, Thomas L. Sansonetti, Assistant Attorney General, U.S. Department of Justice, and John T. Stahr, Attorney, U.S. Department of Justice, on the brief), Washington, DC, for Respondents Samuel J. Collins, Dr. William Travers, and United States Nuclear Regulatory Commission.

Jay E. Silberg, Shaw Pittman LLP (Matias F. Travieso-Diaz, Blake J. Nelson, and John M. Fulton, on the brief), Washington, DC, for Respondents Entergy Nuclear Indian Point 2, LLC, Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc.

Robert D. Snook, Assistant Attorney General of Connecticut (Richard Blumenthal, Attorney General of Connecticut, on the brief), Hartford, CT, for Amicus Curiae Richard Blumenthal.

Before: VAN GRAAFEILAND, SACK, and RAGGI, Circuit Judges.

SACK, Circuit Judge.

In the wake of the September 11, 2001, terrorist attacks on New York City and Arlington, Virginia, the petitioner, Riverkeeper, Inc., ("Riverkeeper") requested that the respondent United States Nuclear Regulatory Commission (the "NRC" or the "Commission") condition the license of the respondent Entergy Nuclear Operations, Inc., ("Entergy") to operate, through respondents Entergy Nuclear Indian Point 2, LLC, and Entergy Nuclear Indian Point 3, LLC, two nuclear power plants in Westchester County, New York (collectively, "Indian Point"), on several safety-related changes pertaining to their operation. Riverkeeper's principal concern was the potential for terrorist use of an airplane in a September-11-type attack on these plants. Riverkeeper's request included implementation of a permanent no-fly zone over Indian Point, a defense system to protect this no-fly zone, and conversion of the spent-fuel storage at Indian Point to a dry-cask system. The NRC issued a decision on November 18, 2002, denying Riverkeeper's request in relevant part, from which Riverkeeper appeals.

Riverkeeper raises grave concerns about the safety of Indian Point in the face of the risk of airborne terror attacks. We nonetheless conclude that we have no subject matter jurisdiction to entertain this appeal. The Administrative Procedure Act, as interpreted by the Supreme Court, creates a heavy presumption against our jurisdiction over an appeal from the NRC's denial of Riverkeeper's request for an enforcement action. Riverkeeper fails utterly to overcome that presumption. The appeal is therefore dismissed.

BACKGROUND

Riverkeeper is a nonprofit organization whose mission is to protect the Hudson River and the supply of drinking water for New York City and Westchester County. Less than two months after the September 11, 2001, terrorist attacks, Riverkeeper filed a request with the NRC pursuant to 10 C.F.R. § 2.206 seeking to condition Entergy's license to operate Indian Point on particular safety measures that Riverkeeper was convinced were necessary to safeguard the nuclear plants from similar attacks. Riverkeeper sought, in relevant part, the "obtainment of a permanent no-fly zone from the Federal Aviation Administration in the air space within 10 nautical miles of the Indian Point facility";¹ "a defense and security system sufficient to protect and defend the no-fly zone"; and "the immediate conversion of the current spent fuel storage technology from a water cooled system to a dry cask system in a bunkered structure."² Riverkeeper, Inc.'s Section 2.206 Request for Emergency Shutdown of Indian Point Units 2 and 3, at 2 (Nov. 8, 2001).³

Riverkeeper argued in its request that these and other protections were necessary because nuclear power plants in general and Indian Point in particular are plausible targets for terrorist attacks. Riverkeeper presented reports by the media and the International Atomic Energy Agency, a United Nations organization, of documented threats against nuclear facilities after September 11, 2001. Riverkeeper also posited that Indian Point is a uniquely likely target because (1) approximately twenty million people reside within fifty miles of the facility, (2) major financial centers in New York City are less than fifty miles away, (3) nearby reservoirs supply all of Westchester County's and much of New York City's drinking water, and (4) Indian Point is near major transportation systems vital to the regional and national economy.

Riverkeeper argued, moreover, that Indian Point is vulnerable to a terrorist attack, especially an intentional crash of an airplane into the facility similar to those successfully carried out against the World Trade Center and the Pentagon on September 11, 2001. In particular, Riverkeeper asserted that there is a possibility of breach of, inter alia, the operating reactors or the spent-fuel storage facilities. In Riverkeeper's view and as the NRC has conceded, Indian Point was not designed to withstand an airborne terrorist attack comparable to the September 11 attacks. Riverkeeper cited a 1982 report by Argonne National Laboratory prepared for the Department of Energy estimating the serious damage that could result from the ignition of airline fuel upon impact with a nuclear reactor structure. According to Riverkeeper, the spent-fuel storage facility's design renders it particularly vulnerable. A successful attack on that facility could, according to Riverkeeper, lead to a loss of cooling water in the spent-fuel pools, which could ultimately cause an exothermic reaction followed by a dangerous fire and then release deadly amounts of radiological material into the environment.

Riverkeeper also contended, in reliance on NRC studies, that the impact of a terrorist attack on Indian Point could be devastating, causing hundreds of immediate fatalities nearby and at least 100,000 latent cancer deaths downwind. In Riverkeeper's view, a meltdown at even one of the Indian Point facilities would have extraordinary environmental consequences and result in at least $500 billion in property damage.

Riverkeeper therefore asked the NRC to exercise its "broad discretionary powers to grant [Riverkeeper's] requests" in the interest of "protect[ing] the public, environment, and property" beyond its statutory duty to provide adequate protection. Id. at 18-19.

On December 20, 2001, NRC Office of Nuclear Reactor Regulation Director Samuel Collins declined to order an immediate closure of Indian Point. On May 16, 2002, Director Collins issued a proposed decision that would deny the relevant relief that Riverkeeper requested. Riverkeeper commented on the proposed decision, requesting reconsideration. It argued that "the proposed decision would protect the operators' economic interests at the expense of the safety and security of the surrounding population." Comments on May 16, 2002 Proposed Director's Decision on Riverkeeper's November 8th Petition 2.206 Request for Emergency Shutdown of Indian Point Units 2 and 3, at 1 (Aug. 9, 2002).

On November 18, 2002, Director Collins issued a decision. In it, he denied the bulk of Riverkeeper's request, although he deemed granted that part of the request that sought an immediate security upgrade, which the NRC had already implemented, and he stated that the NRC was prepared to change security requirements as necessary to ensure what it thought to be adequate protection of the public. He also deemed granted, in part, Riverkeeper's request for a full review of the facility. With respect to the remaining part of Riverkeeper's request, the director determined that "Indian Point has sufficient security measures in place to defend itself from a broad spectrum of potential terrorist attacks." Entergy Nuclear Operations, Nos. 50-003, 50-247, and 50-286, at 5 (Nuclear Regulatory Comm'n Nov. 18, 2002). He elaborated:

[N]uclear power plants are among the most hardened and secure industrial facilities in our nation. The many layers of protection offered by robust plant design features, sophisticated surveillance equipment, physical security protective features, professional security forces, access authorization requirements, and NRC regulatory oversight provide an effective deterrence against potential terrorist activities that could target equipment vital to nuclear safety.

Id. at 6. The director conceded that the NRC's "design basis threat" (NRC requirements for the defense of nuclear power plants) did not consider airborne terrorist attacks like those which occurred on September 11, 2001. Id. at 9. But he asserted that since then the NRC had taken at least three specific actions to respond to the threat of such an attack. First, the NRC is in the process of reexamining the design basis threat for modification as appropriate. Id. Second, the NRC implemented interim security measures as "prudent to address the current threat environment in a consistent manner throughout the nuclear reactor industry," the full details of which would not be made public for security reasons. Id. at 8. The decision nonetheless generally described such measures as including:

increased patrols, augmented security forces and capabilities, additional security posts, installation of additional physical barriers, vehicle checks at greater stand-off distances, enhanced coordination with law enforcement and military authorities and more restrictive site access controls for all personnel....