Feds Must Shine Light on Indian Point Decision

MANHATTAN (CN) - Federal regulators must explain why they secretly exempted the Indian Point nuclear reactor from fire-safety rules, the 2nd Circuit ruled Monday.

The decision partly reverses a ruling that said the Southern District of New York lacked jurisdiction to question the U.S. Nuclear Regulatory Commission.

Former New York Assemblyman Richard Brodsky and three environmental groups complained in 2009 that the NRC's exemption created a dangerous situation at a nuclear plant close to New York City, in defiance the Atomic Energy Act of 1954.

The NRC also flouted the National Environmental Policy Act by closing off public debate before granting the exemption, the lawsuit claimed.

"On September 28, 2007, the NRC, illegally and in complete secrecy, permitted IPEC to permanently operate with physical insulation that lasts only 24 minutes," according to the complaint, abbreviating Indian Point Energy Center. "That permission took the form of an 'exemption' from the one hour requirement."

Because of its NYC proximity, Indian Point is considered "especially susceptible to a terrorist threat," the complaint added.

Chief U.S. District Judge Loretta Preska tossed all of these challenges on jurisdictional grounds in March 2011.

Though a three-judge panel mostly affirmed Monday, it revived the public-participation claims.

The nuclear agency never explained its decision to choke off dialogue, according to the 24-page decision.

"The very day the NRC's grant of an exemption to Indian Point 3 was published in the Federal Register, the State of New York lodged objections," Judge Reena Raggi wrote for the court. "Two months later, plaintiffs filed their own petition to reopen for reconsideration and public input. Contrary to the NRC's urging, plaintiffs' lengthy submission does not assert simple 'opposition to a use.' ... Rather, it reveals a specific controversy regarding the NRC's conclusion that a 24-minute fire barrier is sufficient to protect Indian Point 3 from a catastrophic fire.

"The NRC submits that even if these circumstances show that a public hearing might have been 'beneficial,' ... that is not enough to conclude that a hearing was legally required. We do not suggest otherwise. But the record in this case - devoid of any evidence of public input on Entergy's exemption request, and with no explanation by the NRC of its decision not to afford public participation of any kind - does not permit us to decide whether the agency nevertheless was capable of 'weighing all the factors essential to exercising its judgment in a reasonable manner.'"

In Citizens for Better Forestry v. U.S. Department of Agriculture, the 9th Circuit found that a "complete failure to involve or even inform the public of an agency's preparation of an EA [environmental assessment] or FONSI [finding of no significant impact]" violates the National Environmental Policy Act, Raggi warned.

Still, the panel did not yet rule that the NRC broke the law.

"Our decision today is narrow," Raggi wrote. "We pronounce no rule as to the degree or form of public participation required before the NRC can grant exemptions from its protocols. Nor do we hold that agencies always need to explain their decisions as to how much public participation to afford pursuant to NEPA. We conclude only that, on the record presented in this case, we cannot conduct even deferential judicial review of plaintiffs' claim that the NRC granted the challenged exemption in violation of NEPA's public participation provisions."

Within the next 120 days, the NRC must produce a supplement to its ruling foreclosing a public hearing. Judge Preska must then determine justification.

If the plaintiffs appeal that ruling, the same appellate panel will retain jurisdiction to hear that case on an expedited basis.

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