Judge Defuses Nuke Safety Suit Over Exemption Deal

MANHATTAN (CN) - Chief U.S. District Court Judge Loretta Preska dismissed a lawsuit by environmental groups and a former New York assemblyman against the U.S. Nuclear Regulatory Commission, which granted the Indian Point 3 nuclear power plant an exemption to its fire protection program.

In the original Dec. 30, 2009 complaint, the Atlantic Chapter of the Sierra Club, Westchester's Citizens' Awareness Network, Public Health and Sustainable Energy, and former New York Assemblyman Richard Brodsky wrote that the exemption endangered the public and violated the Atomic Energy Act, which created the NRC in 1954.

But Judge Preska wrote in her March 4 decision that the exemption the NRC granted was lawful, and the Commission had no obligation to hold a public hearing, prepare an environment impact statement or wait longer than 14 months to grant it, as the plaintiffs claimed.

In 1980, the NRC adopted a fire protection program to prevent, detect, control and extinguish fires in nuclear power plants. The program came into being about 5 years after a "nearly catastrophic fire" at Alabama's Browns Ferry power plant, the March 4 decision states.

(The NRC renewed the licenses for the Browns Ferry reactors in 2006.)

One fire protection regulation required that commercial reactor operators install insulation that can shield electric cables controlling reactor shutdown for one hour in the event of a fire, according to the original complaint.

The plaintiffs claimed that the NRC illegally and secretly relaxed the regulation for Entergy Nuclear, which operates the Indian Point reactors and is an intervenor defendant.

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

The complaint added that because it is close to New York City, Indian Point is considered "especially susceptible to a terrorist threat."

But in her March 4 decision, Preska wrote that the NRC had granted Entergy several exemptions over nearly 30 years, starting in 1984, when the reactor used a fire barrier called Hemyc.

In 2005, the NRC discovered that Hemyc could withstand a fire for only 27 to 49 minutes, and Entergy requested that the NRC provide another exemption lowering the bar to 24 minutes, the March 4 decision states.

The NRC issued an Environmental Assessment on Sept. 24, 2007 stating that a revised exemption would not significantly affect the environment.

The original complaint cited 21 causes of action seeking to void Entergy's exemption and provide unspecified relief to the plaintiffs.

In her March 4 decision, Judge Preska grouped the plaintiffs' charges into five categories, and dismissed each in turn.

The plaintiffs claimed that the NRC lacked authority to grant an exemption, violated the Administrative Procedure Act by failing to hold a public hearing on the issue, flouted the National Environmental Policy Act by not preparing an Environmental Impact Statement, failed to consider probative evidence, and awarded the exemption too quickly to evaluate the request.

But Preska deferred to the judgment of the NRC, which she said the courts should not second-guess.

"As many courts have emphasized, it is not the role of the courts to substitute their judgment for the substantive decisions of the Commission," Preska wrote.

She added that the NRC had engaged in "substantive analysis" of Indian Point 3's safety, for more than 20 years.

"This is a case where deference to the substantive decision of the Commission, as it relates to nuclear safety, is warranted," Preska wrote.

Entergy Nuclear made headlines recently for shutting down multiple reactors due to malfunctions. Entergy shut down Indian Point 3 on Feb. 22 to repair a non-radioactive leak, and restored service on Feb. 26, according to press reports.

Three days later, Indian Point 2 switched to backup power for about 2 hours after breakers on a switchyard sensed a fault, but Indian Point 3 was unaffected, according to the Associated Press.

(Entergy has been under fire in months for repeated leaks of radioactive tritium from its aging power plant in Vernon, Vermont, and for Entergy's relentlessly shifting explanations about it.)

The Manhattan U.S. Attorney's Office said it had no comment on the Indian Point decision.

The plaintiffs' attorneys did not immediately return requests for comment.

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