Case on Nuclear-Terror Preparedness Fought

MANHATTAN (CN) — A Second Circuit judge sharply questioned an attorney Monday who argued that the threat of terrorists striking a nuclear plant outside New York City warrants more federal attention.

Nuclear plants are required by federal regulation to use insulation so that electrical-control cables can withstand blazes for one to three hours.

Though the Nuclear Regulatory Commission adopted the rule after a major fire in Brown's Ferry nuclear reactor in 1975, it created an exemption in 2007 for the Indian Point facility, just 38 miles outside New York City, relaxing the response time to 24 minutes.

Three environmentalists brought a lawsuit in 2009 along with Richard Brodsky, a New York state assemblyman at the time, saying the change could be a disaster in the making.

"You have to take a hard look at what this exemption is going to be like if there's a terrorism attack," Brodsky's attorney Daniel Kramer told the Second Circuit today.

One year into his lawsuit, Brodsky ended what had been 17-year political career, but the ex-legislator has remained a vocal advocate for shuttering the plant. His case turned a corner three years ago, when the Second Circuit ordered the commission to allow public comment.

A lawyer for the government told the appellate court Monday that the commission has taken those steps, but Brodsky's attorney said the lip service is insufficient.

"This court does not have to accept a conclusory statement at face value," attorney Kramer said at the Monday hearing before the three-judge panel.

The hearing comes just over a year after a transformer inside Indian Point's reactor caught fire. Though plant owner Entergy maintains that there was never any risk of a radioactive release, a fluid used as coolant spilled into the Hudson River, which flows south toward Manhattan.

New York Gov. Andrew Cuomo called to close the plant in the intervening months, and advocacy groups like Riverkeeper pointed to the incident as evidence that its slackened fire-protection standard is risky.

Assistant U.S. Attorney Benjamin Torrance argued that the court must focus on the narrow legal issues before it, rather than the plant's safety record.

"This isn't a vehicle for opening up everything that's happened at Indian Point in decades," Torrance said.

The argument appeared to resonate with U.S. Circuit Judge Reena Raggi, who pressed Brodsky's lawyer on whether the government did all that the law required.

"Your argument is that they didn't consider [terrorism concerns] adequately, not that they didn't consider it," Raggi said.

Judges Laura Taylor Swain and Robert Sack did not reveal their leanings in their questions to the parties.

Kramer countered that the court has broad discretion to intervene if it finds the issue to be important. He also noted that the commission's 2007 evaluation did not differentiate between a fire sparked by terrorism from one by a blown transformer.

"I think their argument is a fire is a fire is a fire," he said.

Indeed, Entergy's attorney Amy Roma from the Washington-based firm Hogan Lovells conceded the point in court today.

"It doesn't matter how a fire gets started," she said. "It's that a fire is going on."

She claimed that the commission and plant have prepared enough for a fire, whatever triggers one.

Cuomo's office has not returned an email seeking comment. A spokesman for Entergy meanwhile noted that the company has invested more than $100 million at Indian Point since the 9/11 attacks to strengthen and enhance all aspects of security.

"The facility has been judged a safe and secure plant by independent federal inspectors each time it's been evaluated," Entergy spokesman Jerry Nappi said in an email.

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