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RICHARD L. BRODSKY, New York State Assemblyman, From the 92nd Assembly District in His Offiicial and Individual Capacities, WESTCHESTER'S CITIZENS AWARENESS NETWORK (WESTCAN), SIERRA CLUB - ATLANTIC CHAPTER (SIERRA CLUB), Plaintiffs-Appellants, PUBLIC HEALTH AND SUSTAINABLE ENERGY (Phase), Plaintiff,
UNITED STATES NUCLEAR REGULATORY COMMISSION, Defendant-Appellee, ENTERGyNuCLEAR OPERATIONS, INC., Defendant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
BRIEF AND SPECIAL APPENDIX FOR PLAINTIFFS-APPELLANTS
RICHARD BRODSKY, ESQ. Attorney for Plaintiffs-Appellants 2121 Saw Mill River Road White Plains, New York 10607 (914) 720-8830
TABLE OF CONTENTS JURISDICTIONAL STATEMENT 1
ISSUES PRESENTED FOR REVIEW STATEMENT OF THE CASE
STATEMENT OF FACTS SUMMARY OF ARGUI\1ENT
ARGUMENT I. STANDARD OF REVIEW II. THE "EXEMPTION" IS INVALID BECAUSE THE NRC DID NOT HA VB THR LEGAL AUTHORITY TO ISSUE THE "EXElv1PTION" A. The ABA Did Not Authorize The NRC To Issue The "Exemption." B. The IP "Exemption" Violates The Language Of Appendix R. C. Any Equitable Or Concomitant Authority To Issue The "Exemption" Must Include The Rights And Interests Of The Plaintiffs And The Public. III. THE "EXElv1PTION" IS INVALID BECAUSE THE NRC IMPROPERL Y EXCLUDED FROM THE RECORD AND FAILED TO CONSIDER RELEV ANT AND PROBATIVE EVIDENCE IN ITS POSSESSION
18 18 19
19 24 25
IV. THE "EXEMPTION" IS INVALID BECAUSE THE NRC FAILED TO OBSERVE ITS OWN REGULATORY PROCEDURES PURSUANT TO 10 C.F.R. § 50.12 A. The NRC Has Not Met Its Obligation To Make A Reasoned And Supported Finding On Whether The "Exemption" Is "Authorized By Law." B. The NRC Has Not Met Its Obligation To Make A Reasoned And Supported Finding On Whether The "Exemption" Is "Consistent" With The Common Defense And Security." C. The NRC Has Not Met Its Obligation To Make A Reasoned And Supported Finding On Whether The "Exemption" Is Based On "Special Circumstances." D. Plaintiffs Concede A Minimal Facial Basis For The Required Finding On "Undue Risk." V. THE EXEIYfPTIONIS INVALID BECAUSE THE RECORD DOES NOT CONTAIN, NOR DOES THE NRC POSSESS, A DOCUMENT ON WHICH THE NRC EXPLICITL Y RELIED VI. THE EXEIYfPTIONIS INVALID BECAUSE THE NRC FAILED TO HOLD A PUBLIC HEARING OR PERMIT PUBLIC PARTICIPA nON, THEREBY VIOLATING THE ATOMIC ENERGY ACT AND THE ADMINISTRATIVE PROCEDURES ACT VII. THE "EXEIYfPTION"IS INVALID BECAUSE THE NRC VIOLATED NEPA BY FAILING TO HOLD A PUBLIC HEARING
VIII. THE "EXEMPTION" IS INVALID BECAUSE THE NRC VIOLATED NEPA BY FAILING TO PREP ARE AN ENVIROm.1ENT AL IMP ACT STATE~NT AND FAILING TO TAKE THE REQUISITE "HARD LOOK" AT THE ENVIROm.1ENTAL CONSEQUENCES OF ITS DECISION AND ALTERNATIVES TO THE "EXEMPTION" A. the NRC Violated NEP A By Refusing To Consider Serious Environmental Issues And Failing To Prepare An Environmental Impact Statement. B. The NRC Failed To Consider Reasonable And Serious Alternatives To The "Exemption."
CONCLUSION CERTIFICATE OF COMPLIANCE
TABLE OF AUTHORITIES
Statutes and Regulations
Fed. R. App. P. § 4 Fed. R. App. P. § 16 5 U~S.C. § 500, et seq 5 U.S.C. § 553 5 U.S.C. § 554 5 U.S.C § 706 10 C.R.F. § 2.804 10 C.R.F. § 2.805 10.C.R.F. Pt. 50 10 C.R.F. § 50.12 10 C.R. F. §50.48 28 U.S.C. § 1291 28 U.S.C. § 2112 40 C.R.F § 1502.14 40 C.R.F §1506.6 40 C.R.F §1508.9 42 U.S.C. § 2011, et seq
2 32 1 50 45 19 , 50 52 4· 1, 9, 14, 15,38,40,43 25 2 32 63 51,52 59 l
42 U.S.C. § 2021j 42 U.S.C. § 2074 42 U.S.C. § 2111 42. U.S.C. § 2112 42 U.S.C. §2153 42 U.S.C. §2237 42 U.S.C. §2239 42 U.S.C. §4321-4347, et seq .. " 42 U.S.C. §4332(2)(E)
8,21 8,21 8,21 8,21 8,21 7,19 .45, 46, 48, 51 .1 56
Cases Alabama Power Co. v. Costle, 636 F.2d 323 (D.C.Cir 1979) Baltimore Gas & Elec. Co. v. Natural Res. De! Counsel, Inc., 462 U.S. 87 (1983) Bethlehem Steel Corp. v. US.E.P.A., 638 F3d 994 (7th Cir. 1988) Botany Worsted Mills v. U'S; 278 U.S, 282 (1929) Boudette v. Barnette, 923 F.2d 754 (9th Cir. 1991) Brodsky v. Us. NRC, 578 F.3d 175 (2d Cir. 2009) Burlington Truck Lines, Inc. v. United States, 371 U.S. 156 (1962) Citizens Awareness Network, Inc. v. N.R. c., 59 F.3d 284 (1st Cir. 1998)
55,56 32,33 23 22 19,34 39,41
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971)
Citizens for Better Forestry v. Us. Department of Agriculture, 341 F 3d 961 (9th Cir. 2003) Columbia Broad. Sys. Inc. v. United States, 316 U.S. 407 (1942) Connecticut Light and Power v. NR.C, 673 F.2d 525 (D.C. Cir. 1982)
53, 54 .47 7 23 56 23 53
Continental Casualty Co. v. US., 314 U.S.527 (1942) Crounse Corp. v. ICC, 781 F; 2d 1176 (6th Cir. 1986)
Field v. Mans, 516 U.S. 59 (1995) Hanly v. Kleindienst, 471 F.2d 823 (2d Cir. 1972) Hanly v. Mitchell, 460 F. 2d 640 (2d Cir. 1972) ;
Isbrandtsen Co., Inc. v. US., et al., 96 F. Supp. 883 (S.D.N.Y. 1951) Islander E. Pipeline Co., LLC v. Conn. Dept of Envtl. Protection 467 F.3d 295 (2d Cir. 2006) Kelly v. Selin, 42 F.3d 1501 (6th Cir. 1995) Massachusetts v. NRC, 878 F. 2d 1516 (1st Cir. 1989) MCI Telecommunications Corp. v. American Telephone & Telegraph Company, etal., 512 U.S. 218 (1994) MD Pharm. Inc. v. Drug Enforcement Admin., 133 F.3d 8 (D.C. Cir 1998) Michigan Consolidated Gas Co. v. Federal Power Comm. 283 F.2d 204 (D.C. Cir. 1960) Motor Vehicles Mfrs. Ass 'n of us. v. State Farm Mutual, 463 U.S. 29 (1983)
60 .49 .47,49
National R.R. Passengers v. National Ass 'n 0/ R.R. Passengers, 414 U.S. 453 (1974) Nat 'I Courier Ass 'n v. Ed 0/ Governors 516 F.2d 1229, 1241 (D.C. Cir. 1975)
Reserve Sys, : 32, 34
Panhandle Eastern Pipe Line Co. v. Michigan Consolo Gas Co. 364 U.S. 913 (1960) Poglianiv. Army Corps of Engineer, 306 F.3d 1235(2d Cir. 2002) Russello v. United States, 464 U.S. 16 (1983) Scenic Hudson Preservation Con! v. Fed. Power Comm 'n 354 F.2d 608 (2d Cir. 1965) Sierra Club v. Watkins, 808 F. Supp. 852 (1991) Springer v. Gov't of Phil.Lslands, 277 U.S. 189 (1928) Suffolk Co.
, .. 33
56 55, 57 23 32 23 53 23 , 22 33
Sec. of Interior, 562, F.2d, 1368 (2d Cir. 1977)
Hill, 437 U.S. 153 (1978)
Town of Rye, New Yorkv. Skinner, 907 F.2d 23 (2d Cir. 1990) Trenkler
United States, 268 F.3d 16 (1st Cir. 2001)
v. Councilman, 418 F.3d 67 (1st Cir. 2005) v. Nova Scotia Food Products Corp, 568 F.2d 240 (2d Cir. 1977)
Other Sources 100 Con.g. Rec. 9,999 (July 14, 1954) (Statement of Senator Anderson) NRC Approach to Open Government; Public Participation http://www.nrc.gov/public-involve/openlpublic-participation.html.. S.D.N.Y. NRC Memo. of Law in Supp. Of Motion to Dismiss S.D.N.Y. Plaintiffs' Memo. Of Law Opposing NRC Motion to Dismiss
26 2l, 46, 54
JURISDICTIONAL STATEMENT Plaintiff-Appellants Richard L. Brodsky, Westchester's Citizens' Awareness Network, and the Sierra Club-Atlantic Chapter, et. al ("Plaintiffs"), seek review of a decision of the Hon. Judge Loretta Preska of the Southern District of New York ("District Court") granting Appellee United States Nuclear Regulatory
Commission's ("NRC") Motion to Dismiss a Complaint brought by Plaintiffs. That Complaint alleged that the NRC had illegally granted an "exemption" to its duly promulgated rules and requirements with respect to fire safety at the Indian Point nuclear complex ("IP") in violation of the Atomic Energy Act ("AEA"), the Administrative Procedures Act ("APA") and the National Environmental Policy Act ("NEP A"). The District Court had subject matter jurisdiction over Plaintiffs' claims
because the NRC's action in granting an "exemption" violated the AEA, 42 U.S.C. § 2011 et seq., the APA, 5 U.S.C. § 500 et seq., and NEPA, 42 U.S.C. § 4321-4347 et seq., and the rules and regulations duly promulgated by the NRC pursuant to its powers under the AEA including but not limited to 10 C.F.R. § 50.12, and regulations enforcing the NEP A.
In a Memorandum and Order filed on March 4, 2011, the District Court granted NRC's Motion to Dismiss the Complaint. On March 11,2011 the Clerk of Court entered Judgment dismissing all claims, which constituted a final order. Plaintiffs timely filed their Notice of Appeal on May 2, 2011 pursuant to Fed. R. App. P. Rule 4. This Court's jurisdiction rests on 28 U.S.C. § 1291.
ISSUES PRESENTED FOR REVIEW 1. Does the ABA grant authority to the NRC to issue an "exemption" to Indian Point? 2. Can the NRC fail to include in the record and fail to consider relevant and probative material when determining whether to issue an "exemption"? 3. Was the record before the District Court sufficient to justify the granting of the "exemption" request? 4. Did the NRC violate its own regulatory requirements when it granted an "exemption" to Indian Point? 5. Can the NRC rely on a document not in its possession nor contained in the record as an explicit basis for the granting of the "exemption"? 6. Did the NRC's decision to receive, consider and issue the "exemption" without public notice, public comment or any opportunity to participate violate the AEA, NEP A and the AP A? 7. Did NRC's failure to hold a public hearing for an "exemption" violate NEPA?
STATEMENT OF THE CASE This is an appeal from the Judgment and Order of the Honorable Loretta Preska granting the NRC's Motion to Dismiss Plaintiffs Complaint, which alleged that the NRC had illegally granted to Entergy an "exemption" to the NRC's fire safety rules. JA-920. In 2007, the NRC granted to Entergy Nuclear Operations, Inc. ("Entergy"), the owner, operator, and licensee of Indian Point Energy Center ("IP"), an "exemption" from 10 C.F.R. Pt. 50, App. R, III. G.2 ("Appendix R"), which
requires that electric cables controlling reactor shutdown in an emergency have physical insulation able to withstand a fire for sixty minutes. The NRC issued the "exemption" without public notice or opportunity to participate. When Plaintiffs
learned of the "exemption" they filed an administrative appeal, which was denied by the NRC. Plaintiffs then filed an action against the NRC directly before this Court pursuant to the Hobbs Act, seeking a declaration that the "exemption" was invalid. After intervention by Entergy, the filing of an amicus brief by New York Attorney General Andrew Cuomo, and some motion practice, this Court found it had no jurisdiction under the Hobbs Act over "exemptions" and expressly declined to reach the merits of Plaintiffs' claims. Plaintiffs filed a Complaint in the District Court alleging that the NRC violated the AEA, the APA, NEP A and its own
regulations when it excused IP from compliance with parts of Appendix R. The District Court disposed of Plaintiffs' action by granting NRC's motion for
summary judgment. Plaintiffs appeal from that decision. Plaintiffs assert that the NRC was not authorized by law to issue the "exemption," and that the NRC was required to give both public notice and an opportunity for public comment and participation, but failed to do either. It is also alleged that the NRC violated its own procedural and substantive requirements, failed and refused to consider relevant and probative evidence regarding the "exemption," and failed to compile a full and fair administrative record. Due to NRC's failures, the public health and safety has been gravely endangered. The District Court's decision was in error and must be reversed because Plaintiffs' rights have been violated, and the NRC's actions were not authorized by law. It is respectfully submitted that NRC's "exemption" granted to IP was and is invalid.
STATEMENT OF FACTS
1. IP is a complex of nuclear reactors, steam turbines, spent fuel pools and
other facilities located in Buchanan, New York, along the Hudson River, about 35 miles from New York City. Over twenty million people live within a fifty mile radius of IP. It is owned by Entergy, a private corporation located in Louisiana, which operates pursuant to licenses granted by the NRC. 2. IP has long been regarded as the single most dangerous nuclear facility in
the United States due in part to its close proximity to New York City and its long history of unsafe operation, especially when it was designated by the NRC as the least safe facility in the nation. IP also sits on an earthquake fault line. 3. IP sits in one of the most densely populated areas of the country. It is
impossible to evacuate twenty million people living near IP in the event of. a radiation leak. Indeed, the NRC only requires a plan to evacuate those within a ten mile radius of IP, which is less than half a million of the over twenty million people in the NRC's own emergency evacuation planning zone. 4. As a condition of its license, IP must observe all NRC regulations. These
regulations include Appendix R, which governs issues related to fire safety and the consequences of a fire on the public health and safety. JA-61.
The NRC, pursuant to statute, adopted Appendix R on November 19, 1980.
Appendix R contains a list of specific operational requirements aimed at reducing the chances of a fire cutting electric power to the automatic shutdown systems of the reactor resulting in a catastrophic meltdown. Appendix R was the result of a
long and contentious rule-making that began when the Browns Ferry Alabama nuclear facility almost experienced a catastrophic meltdown, due in part to a fire affecting the electric cables that control the shutdown of the reactor in an emergency. (See Connecticut Light and Power Co. v. NR.C, 673 F.2d 525 (D.C.
Cir. 1982) for a full legal and factual history of Appendix R and its "exemption" language.) Appendix R contains numerous prescriptive requirements, one of which requires such electric cables to have physical insulation that can withstand a fire for at least sixty minutes. seek an "exemption" "exemption"
It also contains a one-time opportunity for a licensee to
from this and other requirements of Appendix R.
window closed 30 days after November
19, 1980, on or about
December 19, 1980. No such "exemption" was sought for or granted to IP. 6. The NRC is empowered by the AEA to take specific regulatory actions.
"The terms and conditions of all licenses shall be subject to amendment, revision, or modification, by reason of amendments of this Act or by reason of rules and regulations issued in accordance with the terms of this Act." 42 U.S.C. § 2237.
The ABA specifies five circumstances under which the NRC may issue an (1) Foreign Distribution of Special Nuclear Materials', (2)
Cooperation with Other N ations", (3) Export Licensing Procedures', (4) Regulation of Radioactive Waste4, and (5) Hazardous Materials Transportations. There is no
statutory provision of the AEA which authorizes the granting of an "exemption" to a health and safety rule. 8. On or about July 24, 2006, over 25 years since the original "exemption"
opportunity expired, Entergy asked the NRC for an "exemption" from the sixty minute insulation requirement, seeking permission to use insulation which lasts only thirty minutes ("Entergy 2006 request"). JA at 234. No notice of the
"exemption" request was placed in the Federal Register nor was any other notice given to the public. On August 16, 2007, approximately thirteen months later,
Entergy amended its "exemption" request seeking to reduce the requirement for the survival time for cable insulation to a mere 24 minutes. JA at 466. 9. The Entergy 2006 request was the consequence of belated testing of the fire known as "Hemyc" and installed at IP. Hemyc was previously
represented to meet the full sixty minute survival time and other requirements of
1 2 3 4 5 42 42 42 42 42
u.s.c. § 2153 u.s.c. § 2112 u.s.c. § 2021j(a) u.s.c. § 2111
Appendix R. In 2005, the NRC confirmed test data showing that Hemyc lasts only twenty-seven minutes in a fire. JA at 163. The Entergy 2006 request was simply an effort to evade the sensible requirements of Appendix R, rather than taking steps to upgrade the insulation to meet the sixty minute requirement. 10. The putative legal authority for the fire safety "exemption" is 10 C.F.R. §
50.12, which enumerates a process for granting "exemptions" to health and safety requirements. There is no statutory language authorizing exemptions at all. The
NRC does not dispute the lack of statutory language, arguing that it has an "inherent" power to issue an untold number and of health and safety requirement "exemptions" in any manner it chooses. 11. Given the lack of public notice, opportunity for public participation and
comment, a hearing and adequate environmental review, the deliberative process and relevant evidence available to NRC staff is unknown. No contemporaneous record of the proceedings or of the evidence considered was made or kept", Such closed door submission, consideration critical health and safety and granting of the "exemption" is dangerous, given from
consequences to as many as twenty million people in the immediate area. This is
6 After this litigation was commenced, the NRC tried to re-create such a record, eventually producing a list of thirty-one (31) documents it asserts was the only evidence "considered" by the NRC Staff.
repugnant and violates the constitutional and statutory rights of Plaintiffs and the public at large. 12. The public did not become aware of Entergy's 2006 request for an
"exemption" until September 28, 2007. JA at 492. On that date, a Federal Register notice was published concerning a NEP A Finding of No Significant Impact ("FONSI"). About one week later on October 4, 2007, the NRC published its final approval of the 24 minute "exemption" although the "exemption" was actually granted on September 28,2007. 13. JA at 500.
As a result of NRC's illegal "exemption," the insulation at IP protects key
electrical cables for only twenty-seven minutes rather than the required sixty minutes. JA at 163. Accordingly, fires in remote cable locations must be detected, located, fire personnel mobilized, and fully extinguished by the fire brigade in less than twenty-seven minutes. Such fire suppression is a physical impossibility in most IP electric control cable locations. Consequently IP is, now more than ever, vulnerable to catastrophic fire damage to the emergency reactor shutdown
capabilities. As a result, the danger to the public health and safety has never been greater.
IP today is operated in ways that immediately and significantly endanger the
public health and safety, violate the law, and violate the terms and conditions of its license. 15. Because of the process used by the NRC to grant the "exemption," the
constitutional and statutory rights of the Plaintiffs, as set forth in the AEA, NEP A, APA, and NRC's own regulations were violated.
SUMMARY OF ARGUMENT The NRC violated the law and the rights of the Plaintiffs and the public when it granted the "exemption" to IP. There was no public notice, no public hearing, no opportunity for public comment, and no record compiled when the "exemption" was granted. The NRC considered only a few documents examining the "exemption" request, excluded documents unfavorable to the "exemption" request, refused to consider other relevant and probative documents in its
possession, explicitly relied on a document that it does not possess, failed to consider alternatives to the "exemption", violated its own procedural requirements, and made the decision against the weight of the evidence. The NRC Did Not Have The Legal Authority To Issue The "Exemption" The NRC exercises its powers pursuant to the AEA. The AEA does not grant to the NRC the power to issue an "exemption" to health and safety regulations. The NRC argued it has an "equitable" power to do so, and the District Court agreed, stating with no explanation, "concomitant". that the "exemption" power was "broad" or
The AEA does grant the NRC the power to issue an "exemption"
in five specific areas, not including public health and safety. The unexplained assertion of an implied power to do so is inconsistent with the AEA and widely accepted canons of statutory construction which hold that when a statute explicitly
lists certain powers and omits others it cannot be construed to grant them by implication. Similarly, "exemption". Appendix R itself cannot be read as to permit such an
Appendix R contained a provision which authorized "exemptions"
from the one-hour rule, which expired late in 1980. The IP licensee did not request or receive an "exemption" under that provision. The NRC staff had no legal
authority to supersede the one-time "exemption" provision by issuing a permanent "exemption" thirty years later. Finally, even if a court may imply an "exemption" power it must consider and imply all the broad purposes of the AEA, including those that require public participation. The NRC and the District Court failed to consider these other statutory purposes. The lack of statutory language, the clear
intention of Congress to grant an "exemption" only in limited cases, the existence of a limited and expired "exemption" provision in Appendix R, and the failure to give weight to AEA purposes establishes the lack of legal authority to issue the "exemption. " The NRC Did Not Consider Relevant and Probative Evidence In Its Possession The NRC did not keep a record of the evidence it considered when it granted the "exemption". After litigation began, it produced a "record" containing 31 documents it "considered". Of these 31 documents only 11 contain evidence and
analysis of relevant issues. All these documents apparently submitted by Entergy tend to favor the granting of the "exemption". From the start of the administrative and judicial processes Plaintiffs presented the NRC with 23 of the NRC's own documents which are relevant and probative and tend to establish that the "exemption" should not be granted. The NRC has repeatedly refused to consider these documents. JA at 1009-1013. The NRC asserts that it is not required to do
any more than produce a list of the documents it actually considered and may exclude from consideration and the record any document, no matter how relevant and probative it may be. The NRC must review and consider such documents and evidence available to it, and to reasonably assign weight to each of them.
Specifically because the NRC did not consider relevant evidence, as may have been provided upon public notice, comment and a hearing, the record is wholly insufficient, and the "exemption" was granted without sufficient evidence to support it. The "Exemption" Is Invalid Because It Explicitly Relies On A Document Not In The Record And Not In The Possession Of The NRC The "exemption" procedures set forth in 10 C.F.R. § 50.12, require the NRC to make a formal Finding of "special circumstances". The "exemption" states that
such Finding is based on a document called "the fire hazards analysis." JA at 514. That document is not in the record and by all indications does not and has never
existed. The NRC does not possess and inherently could not claim to have based any finding on "the fire hazards analysis." At oral argument below the attorney for the NRC made an unsupported testimonial assertion that the matters within "the fire hazards analysis" were actually considered by the NRC in the form of other documents. No substantiation of that claim was or could be offered. It was error for the Court below to accept this speculative argument of counsel alone. The
absence of a document explicitly relied on by the NRC for its findings, renders the "exemption" invalid on its face. This defect may not be cured by the
unsubstantiated and self-serving statements of counsel after this litigation began. The NRC Failed To Follow Its Own Regulatory Requirements 10 C.F.R. §50.12 requires the NRC to make four formal Findings as a condition of any" exemption." It must find that the "exemption" is 1) authorized by law, (2) will not present an undue risk to the public health and safety, (3) consistent with the common defense and security, and (4) special circumstances are present. In making those determinations the NRC is required to analyze and weigh
probative evidence and to offer a reasoned connection between that evidence and its' decision. In three of the four Findings, the record is devoid of any evidence or analysis of the basis for the NRC decision. These are the Findings of "authorized by law", "consistent with the common defense and security" , and "special
argue that the three Findings for which there is no
evidence or analysis violate the requirements of 10 C.F.R. §50.12. The NRC Failed To Give Plaintiffs And The Public Any Notice Of The Requested "Exemption" Or Any Opportunity For Comment Or Participation, And Wrongly Denied Plaintiffs Request For A Public Hearing. The AEA and the AP A forbid the NRC from excusing Entergy from compliance with Appendix R in secret. Plaintiffs and the public are entitled to
notice and an opportunity to participate in the process. The NRC argues that since an "exemption" is not listed as one of the actions it may take with respect to a license to operate a nuclear reactor, the provisions of the AEA and APA, which require public participation, do not apply. The District Court agreed. Plaintiffs assert that the NRC may not avoid the fundamental public protections in the ABA by conjuring up a different label for its actions. It is the content of the NRC action, not the name attached to it, that governs the right of Plaintiffs and the public to public notice and participation in the decision making process. The NRC Failed To Conduct A Public Hearing As Required By NEPA The NRC failed to conduct a public hearing consideration of environmental and public health issues.
as part of its NEP A NEP A states that the
NRC "shall" conduct such a hearing if either a "[s]ubstantial environmental controversy concerning the proposed action or substantial interest in holding the hearing" exist. Plaintiffs have repeatedly demonstrated the existence of both
substantial interest and a substantial controversy with respect to the sixty minute insulation requirement. The NRC Violated NEP A By Failing To Consider Alternatives to the "Exemption" and Other Environmental Concerns. NEP A requires that the NRC take a "hard look" at all potentially significant environmental outcomes of its actions, including consideration of reasonable
alternatives to the proposed action.
In this case the NRC considered only two There are a
alternatives, granting the "exemption" and taking no action at all.
number of reasonable alternatives to these two stark choices including requiring an upgrade of the defective insulation to meet the sixty minute requirement. NRC was required to consider and decide on this alternative. The
It was similarly
required to consider the possibility of large fires, acknowledged design weaknesses at IP, the impact on the New York metropolitan environment of the loss of electrically powered safety systems, and terrorism. Plaintiffs do not argue that the NRC, after considering evidence, miscalculated or erroneously concluded that the "exemption" could and should be issued. Plaintiffs point out that the record and the NEP A documents are devoid of any evidence or analysis of these questions.
STANDARD OF REVIEW The standards a court must apply when considering whether to invalidate an
administrative action include whether the action was arbitrary, capricious, or an abuse of discretion, if the administrative action was otherwise not in accordance with law, contrary to constitutional rights, powers, privileges, or immunities, in excess of statutory jurisdiction, authority, or limitations, or without observance of procedure required by law. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 402 (1971); see also 5 U.S.C.A. § 706. Here, Plaintiffs assert that the granting of the "exemption" violated all of those standards insofar as the "exemption" was granted without legal authorization, was based on a record that intentionally and unfairly excluded relevant evidence, relied on "the fire hazards analysis", violated the NRC's own procedural
requirements, did not include any of the required opportunities for public notice, comment and participation, "exemption", failed to consider reasonable alternatives to the certain environmental consequences of the
failed to consider
"exemption" and was not supported by the evidence in the record.
THE "EXEMPTION" IS INVALID BECAUSE THE NRC DID NOT HAVE THE LEGAL AUTHORITY TO ISSUE THE "EXEMPTION" The IP fire safety "exemption" is invalid because its issuance was not
authorized by law. The powers and duties of the NRC are set forth in the ABA, and the NRC may only take those actions authorized therein. The ABA reads: "The terms and conditions of all licenses shall be subject to amendment, revision, or modification, by reason of amendments of this chapter or by reason of rules and regulations issued in accordance with the terms of this chapter." 42 U.S.C § 2237. The AEA contains no mention of and does not authorize the NRC to issue an "exemption" to health and safety standards. Similarly, the text and history of Appendix R did not permit the NRC to issue the "exemption." Finally, any implied or inherent power to issue the "exemption" must include public participation. A. The AEA Did Not Authorize The NRC To Issue The "Exemption."
It is not disputed by the NRC or the District Court that the AEA contains no
language granting the NRC the power to issue "exemptions" to health and safety requirements. Former New York State Attorney General, Andrew Cuomo, in his
amicus brief in Brodsky v. Us. NRC, 578 F.3d 175 (2d Cir. 2009), also pointed out that the AEA provided no authority for the issuance of an "exemption." "Indeed, exemptions from regulations are not even mentioned in the Act ... " JA at 987.
The NRC characterizes its "exemption" authority as "inherent authority" or a "general ability" to issue an "exemption" which it further characterizes as "equitable discretion." S.D.N.Y. NRC Memo. of Law in Supp. Of Motion to
Dismiss P 10. The District Court agreed in a conc1usory fashion and without providing an explanation for its decision that the NRC has "broad authority" and "concomitant authority" to issue an untold number and manner of "exemptions." JA at 933-936. The NRC and the District Court have taken the extraordinary step of
creating a broad and unlimited power allowing an administrative agency to secretly and permanently unravel any regulatory scheme. This is not some de minimis
relief from an inconsequential regulatory requirement, but a 60% reduction in the time electrical systems crucial to the emergency shutdown of the IP reactor are required to survive a fire. The NRC and the District Court have determined that this inherent or equitable power may be exercised in any way, and to any extent, the NRC chooses, unconstrained by the myriad purposes of the AEA itself and in derogation of the procedural and substantive rights of Plaintiffs and the public. A grant of power to an administrative agency this broad and sweeping must come from the Congress, not the judiciary. Justice Scalia warned, with respect to a similar unauthorized expansion of administrative authority, that the FCC wrongly
created "a fundamental revision of the statute ...it is effectively the introduction of a whole new regime of regulation (or of free-market competition), which may well be a better regime but is not the one that Congress established." MCI
Telecommunications Corp. v. American Telephone and Telegraph Company, et al., 512 U.S. 218, 234 (1994). The AEA's silence with respect to a generalized power of "exemption" is not the end of the inquiry. The AEA, read in its entirety with the conventional rules of statutory construction and analysis, provides that Congress never gave such power to the NRC. The Congress did write into the ABA specific grants of authority to issue "exemptions" but only in particularly enumerated circumstances. The Congress carefully considered when the AEA should empower the NRC to grant an "exemption" and granted such power in only five specific situations and no others: (1) Foreign Distribution of Special Nuclear Materials', (2) Cooperation with Other Nations", (3) Export Licensing Procedures", (4) Regulation of Radioactive WasteIO, and (5) Hazardous Materials Transportation!'. Aside from these specific areas,
Congress did not authorize any generalized "exemption" power, or any power to
7 8 9 10 II 42 u.s.c. § 2074(b) 42U.S.C.§2153 42 u.s.c. § 2112 42 u.s.c. § 202Ij(a) &(b) 42U.S.C. §2111
issue an "exemption" from health and safety requirements.
This failure to grant
the NRC a generalized power coupled with the grant of "exemption" powers in only five specific areas requires this Court to respect the Congressional
determination and refrain from a judicially created power not based in the ABA. Normal rules of statutory construction provide guidance as to what may be concluded from such selective grants of authority. "[W]here Congress includes
particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." Russello v. United States, 464 U.S. 16, 23 (1983); see also Trenkler v. United States, 268 F.3d 16,23 (1st Cir.2001) This is the doctrine of expressio unius est exclusio alterius and it
commonly applied by courts when interpreting the scope of a Congressional grant of authority to a federal agency. Cir. 1991) ("This doctrine See Boudette v. Barnette, 923 F.2d 754, 757 (9th interpretation creates a
as applied to statutory
presumption that when a statute designates certain persons, things, or manners of operation, all omissions should be understood as exclusions.") "Where Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of evidence of a contrary legislative intent." Us. v. Councilman, 418 F.3d 67, 75 (1st Cir.
2005); Springer v. Gov't of Phil. Islands,
277 U.S. 189, 206 (1928); See
Continental Casualty Co. v. tis, 314 U. S. 527, 533 (1942). The Councilman Court applied that principle when "Congress enacts a new, self-contained statute, and two provisions of that act, drafted with parallel language, differ in that one provision uses a term, but the other provision, where it would be equally sensible to use that term if Congress desired it to apply, conspicuously omits it. Under such conditions, the maxim's interpretive value is at its apex because the underlying inference of legislative intent is most plausible." Councilman, 418 F.3d at 73. See also Field v. Mans, 516 U.S. 59, 75-76 (1995), National R.R. Passenger Corp. v. National Ass 'n of R.R. Passengers, 414 U.S. 453, 458 (1974); Botany Worsted Mills v. Us., 278 U. S. 282, 289 (1929). ("when a statute limits a thing to be done in a particular mode, it includes the negative of any other mode." ) The Supreme Court has considered the precise question of whether
"exemption" powers could be read into a statute in the face of Congressional silence. Tennessee Valley v. Hill, 437 U.S. 153, 188 (1978), considered the "exemption" powers in the Endangered Species Act. The Court said, "Congress was also aware of certain instances in which exceptions to the statute's broad sweep would be necessary. [The Act] creates a number of limited "hardship exemptions," none of which would even remotely apply to the Tellico Project. In
fact, there are no exemptions in the Endangered Species Act for federal agencies, meaning that under the maxim expressio unius est exclusio alterius, we must presume that these were the only "hardship cases" Congress intended to exempt." Cf National R.R. Passenger Corp., 414 U. S. at 458. Here, the facts and law are equally clear and convmcmg. Congress
considered certain instances when the NRC should be empowered to grant an "exemption." It granted the NRC that power in five discrete cases, none of which "even remotely apply" to the Appendix R "exemption."
It did not grant such a
power when health and safety requirements such as Appendix R were involved. The District Court failed to offer any reasoned analysis of why this clear distinction within the statute should be ignored, offering only the bland assertion that the NRC's authority was "broad" or "concomitant." The District Court
committed reversible error in ignoring the Congressional decision and intent when it found an inherent, inchoate and implied power that is not contained in the AEA. B. The IP "Exemption" Violates The Language Of Appendix R. When the District Court found an inchoate "broad" or "concomitant" "exemption" power, it also violated the particular terms and requirements of
Appendix R. In 1980, when the NRC adopted Appendix R, it included in the text a
specific "exemption" procedure'f.
The NRC specified that any such "exemption"
must be sought within 30 days of the adoption of Appendix R, after which the opportunity for an "exemption" would expire. receive such an "exemption". The IP licensee did not seek or
In spite of the decision by the NRC itself, 30 years
later the NRC staff granted Entergy its own "exemption" to Appendix R. Even if an "exemption" procedure is somehow required, the NRC created it, and let it expire. It is not permissible for NRC staff and the courts to now create a new and unlimited "exemption" power.13 C. Any Equitable Or Concomitant Authority To Issue The Exemption Must Include The Rights And Interests Of The Plaintiffs And The Public. In the absence of statutory language, the District Court concluded that the IP "exemption" was properly granted because an "inherent" or "equitable" or "broad" or "concomitant" authority is somehow to be read into the AEA. Court offered no explanation for its decision. Perhaps the District Court believed that in order to fulfill the broad purposes of the AEA, the NRC requires such "exemption" authority. Congress did not set The District
forth authority without limit and the District Court did not set forth what those
10 C.F.R. § 50.48(c)(6) 13 The District Court conceded the existence of this expired "exemption" procedure but failed to address it in its decision "When the NRC passed the fire protection program 1980, it allowed for a thirty-day window for licensees to apply for exemptions from the requirements." JA at 923.
broad purposes are, nor why the "exemption" authority is an essential element of them. The absence of such reasoned explanation puts Plaintiffs at a severe disadvantage. Assuming that administrative efficiency was the broad purpose the
District Court found implicit in the ABA, it simply failed to mention, much less consider, other important and broad purposes of the AEA including the public's right to know of and participate in NRC decisions. The AEA itself requires broad public knowledge and participation
important NRC decisions, and this idea was woven into the fabric of the statute from its creation. Senator Clinton Anderson of New Mexico, the sponsor of much of the original legislation creating the licensing system for nuclear plants, was adamant about the need for public knowledge of, and participation in, these decisions. "But because I feel so strongly that nuclear energy is probably the most important thing we are dealing with in our industrial life today, I wish to be sure the Commission has to do its business out of doors, so to speak, where everyone can see it ... the people who are interested will not be reached unless they are given notice." 100 Congo Rec. 9,999 (July 14, 1954) There has been widespread
acceptance of Senator Anderson's intentions by the Congress, the public and even the NRC, at least in theory. "The U.S. Nuclear Regulatory Commission (NRC)
considers public involvement in, and information about, our activities to be a
cornerstone of strong, fair regulation of the nuclear industry." The NRC Approach to Open Government; Public Participation, http://www.nrc.gov/publicthe NRC
In spite of such rhetoric,
violated the public's right to participate in the "exemption" process. While there is room for discussion and disagreement pathways for such participation, the District Court, before on the specific it created an
administrative procedure, was required to at least consider those purposes, along with the rights of Plaintiffs and the public, and the limits of the "exemption" power. It did not do that. At a minimum, the decision of the District Court illuminates the problematic consequences of judicially created powers not contained in the statute. Did
Congress really intend to exclude the public from "exemption" decisions on health and safety issues generally? Can the NRC insulate "exemption" decisions from
examination and review by creating its own administrative procedures with no public participation? Should the Court below have at least considered and opined
on the limits of the power which it granted to the NRC? These questions merely highlight the practical consequences of judicially created procedures that serve the interest of the regulator, but not of the public.
There have been searching judicial analyses of when an implied power of "exemption" can be created. In Alabama Power Co. v. Castle, 636 F.2d 323 (D.C. Cir. 1979) the Court, in a compelling examination of how and when an found that the EPA had
administrative agency may fashion an "exemption,"
illegally granted an "exemption" to requirements of the Clean Air Act when it decided that "the Act does not give the agency a free hand authority to grant broad exemptions." Id. at 354. "EPA's "expansion" of the section 165(b) exemption falls well beyond the agency's exemption authority." Id. at 356. The Alabama Power Court said that "certain limited grounds for the creation of exemptions are inherent in the administrative process ....But there exists no general administrative power to create exemptions to statutory requirements based upon the agency's perceptions of costs and benefits." Id. at 357. The Court found only two bases for such non-statutory "exemptions", where "th[e] exemption ...
situation is genuinely de minimis or one of administrative necessity." Id. at 361. The Alabama Power court particularly noted: "Considerations of administrative
necessity may be a basis for finding implied authority for an administrative approach not explicitly provided in the statute ...." Id at 358. "Unless Congress has been extraordinarily rigid, there is likely a basis for an implication of de minimis authority to provide exemption when the burdens of
regulation yield a gain of trivial or no value. That implied authority is not available for a situation where the regulatory function does provide benefits, in the sense of furthering the regulatory objectives, but the agency concludes that the
acknowledged benefits are exceeded by the costs." Alabama Power, 636 F .2d at 360-361. The principles of "administrative necessity" and "de minimis" impact ought to govern a reasoned analysis of any "implied" or "inherent" or broad" or "concomitant" authority to issue the IP "exemption." Instead, the District Court
refused to offer any other analyses of when and why an inherent administrative remedy may be created by a court. It distinguished Alabama Power on the sole ground that it concerned a general "exemption", while the IP "exemption" is site specific. "Here, the NRC has not created any blanket or categorical exemption
from any explicit rule set forth in the ABA. In fact this case concerns a casespecific exemption." JA at 938. The reasoning in Alabama Power applies to any judicially created implied administrative remedy. The District Court, when rejecting the analytic framework of the Alabama Power Court, offered no reasoned substitute. It did not analyze the purposes or limitations of an equitable "exemption", nor the process that the NRC should use, nor of the conflicting interests of the NRC, the public and the
Plaintiffs. Instead, its findings are conclusory and circular. The result is a rule of law that, if sustained by this Court, will permit any federal agency to issue secret, unlimited exemptions to any and all license conditions, with no legal or practical restrictions. The NRC, through the District Court's decision, could exempt an entire nuclear facility from the requirements of Appendix R. Plaintiffs submit that the Court's analysis in Alabama Power should be used here to determine if an implied exemption power does exist. If this Court chooses to apply some other analysis of the legal basis of the implied "exemption" power, it should explain that analysis clearly. The "exemption" at issue here is inconsistent with the black letter law of the statute, and its judicial creation is inconsistent with accepted rules of statutory construction, thereby violating the explicit terms of the very regulation to which it is applied, and is offered with little or no explanation of the important legal principles involved. III. THE "EXEMPTION" IS INVALID BECAUSE THE NRC IMPROPERLY EXCLUDED FROM THE RECORD AND FAILED TO CONSIDER RELEVANT AND PROBATIVE EVIDENCE IN ITS POSSESSION The record on which the NRC based its "exemption" decision is remarkably truncated, biased and incomplete, and intentionally so. The record herein contains
only 31 documents, only 11 of which contain facts or analysis of issues considered by the NRCI4. Those 11 documents tend to favor the grant of the "exemption."
The NRC deliberately excluded from the record and failed to consider dozens of other documents in its possession which tend to establish the "exemption" ought not to have been granted. The process by which the record was compiled and submitted is unusual. No contemporaneous record was kept by the NRC, because it takes the position that the "exemption" process is not a "proceeding", and only a "proceeding"
requires a record'<. This matter was fully briefed and argued in front of the Second Circuit (See generally JA at 995 and JA at 1006). The submitted record was
reconstructed only after the commencement of litigation. In re-creating the record, the NRC limited it to only those documents staff members secretly chose to consider. Plaintiffs argue that the NRC was required to consider and include in the record other relevant and probative documents in its possession and which "might have influenced" the administrative decision, if considered. The NRC's failure to consider such evidence and compile such record
The remainder are copies of administrative notices, letters or docume~ts part of the "exemption" itself. 31
15 The NRC argues that the requirement for production of such evidence "obviously refers to an adjudicatory hearing, which did not occur in this case." JA at 1012.
violated due process rights, the Fed.R.App.P, and the APA16, leaving a record legally and factually insufficient to justify the grant of the "exemption." This
Court is called upon to determine what legal standard applies to the creation and submission of the record, and whether the NRC abided by that standard. The case law uniformly rejects the NRC position and instead requires a broad and complete inclusion of relevant evidence. A necessary part of the record on appeal of agency action includes any document that "might have influenced the agency's decision" Nat 'I Courier Ass'n v. Bd. Of Governors of Fed. Reserve Sys., 516 F.2d 1229, 1241 (D.C. Cir. 1975). See Bethlehem Steel Corp. v. Us. E.P.A., 638 F .2d 994, 1000 (7th Cir. 1988).
It is "arbitrary or capricious" for an agency
not to take into account all relevant factors in making its determination. Volpe, 401 U.S. at 413-15. Hanly v. Mitchell, 460 F.2d 640, 648 (2nd Cir., 1972). "Where evidence presented to the preparing agency is ignored or otherwise inadequately dealt with, serious questions may arise about the adequacy of the authors' efforts to compile a complete statement. Suffolk Co. v. Sec.
F.2d 1368, 1383 (2nd Cir. 1977). "[W]here, as here, an agency justifies its actions by reference only to information in the public file while failing to disclose the substance of other relevant information that has been presented to it, a reviewing
See particularly Fed.R.App.P § 16 and 28 U.S.C. § 2112 (b)
court cannot presume that the agency has acted properly." Bethlehem Steel Corp., supra 1009; see also, MD Pharm., Inc. v. Drug Enforcement Admin., 133 F.3d 8, 14-16 (D.C. Cir. 1998). This Court has adopted this standard repeatedly. Us. v. Nova Scotia Food
Products Corp., 568 F.2d 240, 251 (2nd Cir. 1977) ("it is arbitrary or capricious for an agency not to take into account all relevant factors in making its determination."). Other Courts have similarly established that if an administrative agency is to properly discharge its duty, then the record on which it bases its determination must be complete. See Michigan Consolidated Gas Co. v. Federal Power Comm., 283 F .2d 204, 226 (D.C. Cir. 1960), cert. denied, Panhandle Eastern Pipe Line Co. v. Michigan Consolo Gas Co., 364 U.S. 913 (1960). "The agency must always act upon the record made, and if that is not sufficient, it should see the record is supplemented before it acts. It must always preserve the elements of fair play, but it is not fair play for it to create an injustice, instead of remedying one, by omitting to inform itself and by acting ignorantly when intelligent action is possible.t''" Isbrandtsen Co., Inc. v. U'S; et al, 96 F. Supp. 883, 892 (S.D.N.Y 1951).
17 The Isbrandtsen Court took this language from the following document: Senate Subcommittee Hearings on S. 674, S. 675 and S. 918, April 29, 1941, pp. 465-466.The Supreme Court has admonished that, in court review of orders of Boards and Commissions, the public interest looms large. (citations omitted)
"Private parties and reviewing courts alike have a strong interest in fully knowing the basis and circumstances of an agency's decision. The process by which the decision has been reached is often mysterious enough without the agency's maintaining unnecessary secrecy. To be sure, the agency may have a strong interest of its own in keeping internal documents from public view, but it will normally be far easier for the agency to establish its interest in suppressing such documents than for the private litigants to establish their interest in exposing them to judicial scrutiny." Nat'l Courier, 516 F.2d at 1241. The existence of relevant and probative material not considered by the NRC has been raised by Plaintiffs at every stage of the administrative and judicial process'". In those efforts Plaintiffs have specified 23 NRC documents, which are, in fact, relevant and probative, but which were ignored by the NRC. JA at 10011003. Consideration of the evidence contained in these documents would have made it impossible for the NRC to approve the "exemption" request. Plaintiffs call this Court's attention to just two of these named documents to explain their relevance and significance. These are the Safety Shutdown Analysis,
18 JA at 518. In Brodsky v. u.s. NRC, 578 F.3d 175 (2d Cir. 2009), Plaintiffs' filed a Motion to Supplement The Record which set forth the specific evidence in the possession of the NRC which it failed to consider and make part of the administrative record. The Court deferred the Motion and eventually did not decide it. See also Cause of Action 18 in the Complaint.
"(3)" in Plaintiffs'
denominated "( 17)". "(3) Current Safe Shutdown Analysis; a. Purpose of request: The requested documents will establish the acceptable NRC procedure for safe shut down in case of fire, the amount of time electric cables need to survive in a fire, the consequences of failure, and whether or not the NRC has reviewed, evaluated, tested, and/or approved the safe shutdown analysis for prior or current licensee prior to granting the exemption. (17) All Licensee Event Reports associated with Fire Protection Systems, fire related events, or changes to operational modes made as a result of a potential non-operational system related to fire protection;
a. Purpose of request: The requested documents will provide accurate information about fires that occurred at Indian Point Unit facilities to establish whether the inspection was considered, relied on, submitted to the NRC for consideration, and/or confirmed by physical inspection by NRC staff in reviewing and granting the exemption." (JA at 513 et. seq.) Each of the other documents named by Plaintiffs has similar relevant and probative content. The NRC may not, as it did here, ignore such evidence by arbitrarily limiting the administrative record 19 to documents and evidence that tend
From the onset of the "exemption" controversy, the NRC has taken the position that there was no "administrative record" because there was no "proceeding." "In a telephone pre-argument conference among all the parties on April 25, 2008, the NRC's attorney stated that there was no proceeding and no record." In the absence ofa record made at the time of NRC consideration, after litigation commenced ... it was necessary for the NRC to go back and assemble a record from the materials it actually considered." JA at 1013.
to support the decision and to exclude these and other documents that tend to contradict it. Plaintiffs have not and do not argue that they should decide which documents are relevant and probative. That determination is initially to be made
by the NRC, which can then be corrected by administrative or judicial appeal if necessary. That is not what happened here. In this case, the NRC arbitrarily
limited the reconstructed record, excluded documents from the record, which tend to disfavor the "exemption", refused to consider the relevance and value of the proffered documents, and assert only that the record should consist of those documents "actually considered". of documents that they The NRC stated that the record would be "a list in considering the "exemption"
applications ...meaning any document they looked at ... " JA at 1060. (Emphasis in original). Having excluded relevant and probative material from consideration, having refused to consider evidence that contradicts their conclusion, the NRC created a post-process record that was legally and evidentiarily insufficient. It is forced into this legally untenable position because it cannot represent that the 23 documents are irrelevant or do not contain probative material. The District Court, in considering Plaintiffs arguments, inexplicably
mischaracterized their position, their written submissions and the oral argument.
The Court said, "Plaintiffs here merely disagree with the Commission's decision to place emphasis on certain parts of the analysis rather than on others ..... Moreover, Plaintiffs do not identify which specific documents were not considered (or, alternatively, relied upon unlawfully) that would invalidate the Commission's decision." JA at 956. Plaintiffs respectfully point out that the District Court was repeatedly told that our position was that the NRC could put whatever reasonable emphasis and weight it wished on these documents, but that it could not exclude them from consideration and the record". Plaintiffs also made the Court below aware of the specific relevant and probative documents in written submissions and at oral argument, and the Court acknowledged as much": It is simply untrue that Plaintiffs did not identify the documents and explained their relevance.
It is equally untrue that Plaintiffs'
challenge the weight given to the documents; exclusion.
we challenge their complete
"Plaintiffs do not challenge the NRC's authority to determine that some documents may be relevant and some may not. The threshold question of relevance is for the NRC to make. Plaintiffs do challenge the NRC's admission that it is legally permitted to and in fact did ignore relevant evidence in its possession. The law requires that the NRC make a determination of relevance, to consider such relevant documents and to make them part of the Certified Record." S.D.N.Y. Plaintiffs' Memo. of Law Opposing NRC Motion to Dismiss P 21. 21 MR. BRODSKY: We have submitted to the Court in this case a list of a dozen documents which, if the NRC had considered them, would have changed the outcome. (JA at 1099). THE COURT: I understand your other argument that additional materials were there that were not considered, that should have been ... JA at 1100.
It is the NRC's contention that, in the bizarre and circular world of
it can compile any record it wishes,· after commencement
litigation, and can ignore the requirement that all "evidence" within its possession be considered because it characterizes an "exemption" as a non-proceeding.
However, the law makes no such distinction. An agency determination, no matter what it is called, must be based on a record that is complete, fair and thorough. Accordingly, the question before this Court becomes which standard must govern the creation of the record upon which the NRC based its decision. The NRC asserts that the standard is only the evidence actually considered. Plaintiffs
assert that the standard is all evidence in the possession of the NRC that is relevant and probative. IV. THE "EXEMPTION" IS INVALID BECAUSE THE NRC FAILED TO OBSERVE ITS OWN REGULATORY PROCEDURES PURSUANT TO 10 C.F.R. § 50.12.
Even if, arguendo, the NRC had the legal authority to issue the IP "exemption," it failed to meet its own regulatory requirements. 10 C.F.R. § 50.12
requires the NRC to make four separate "Findings" as a condition of the granting of an "exemption".
It must find that the "exemption" is: 1) authorized by law, (2)
will not present an undue risk to the public health and safety, (3) consistent with
the common defense and security, and (4) special circumstances are present. 10
C.F.R. § 50.12.
It is well settled that the agency must "disclose the basis of its order and give
clear indication that it has exercised the discretion with which Congress has empowered it." Burlington Truck Lines, Inc. v. United States, 371 U. S. 156, 168 (1962). The agency must also "examine the relevant data and articulate a
satisfactory explanation for its action including a "rational connection between the facts found and the choice made." Id; Motor Vehicle Mfrs. Ass 'n of Farm Mutual, 463 U.S. 29,43 (1983). Here, the NRC failed to meet these requirements for three 'of the four required Findings for the IP "exemption." Neither the "exemption" itself nor the
record contains any evidence, facts, analysis or reasoning with respect to the required Findings that the "exemption" is "authorized by law," "consistent with the common defense and security," and that "special circumstances" are present. Plaintiffs emphasize that they do not argue that the NRC, after analysis or consideration, made an incorrect determination with respect to these conditions. Plaintiffs instead bring this Court's attention to the complete absence of evidence or analysis in support of the required Findings. What the NRC offers instead is a set of conclusory self-serving statements, absent evidence, analysis or argument.
The NRC Has Not Met Its Obligation To Make A Reasoned And Supported Finding On Whether The "Exemption" Is "Authorized By Law." With respect to the required Finding that the "exemption" is "authorized by
law" pursuant to 10 C.F.R. 50.12(a)(1), the "exemption" itself states that "The NRC staff has determined that granting of the licensee's proposed exemption will not result in a violation of the Atomic Energy Act of 1954, as amended, or the Commissions regulations. Therefore, the exemption is authorized by law." (JA at 514). That is the entirety of the analysis or argument in either the record or the "exemption." There is absolutely no discussion of the legal basis for the 10 C.F .R. § 50.12 "exemption" process, compliance with NEPA or the APA, or the legal basis to issue the "exemption" in complete secrecy and without any public notice or participation. The Finding is unsupported, circular, conclusory, arbitrary and without foundation. The required finding must be based on something more than the selfvalidating words of NRC staff reciting only the fact that the staff "has determined the exemption to be authorized by law." The NRC, based on nothing in the record concludes otherwise in the hope that this will satisfy the requirement that it must "offer a 'rational connection between the facts found and the choice made.'" Mfrs. Ass 'n afUS., 463 U.S. at 43.
The NRC Has Not Met Its Obligation To Make A Reasoned And Supported Finding On Whether The "Exemption" Is "Consistent With The Common Defense And Security."
With respect to the required Finding that the "exemption" is "consistent with the common defense and security," there is no document in the record that discusses or is in any way relevant to the common defense and security The "exemption" itself contains one sentence with respect to this
issue: "This change to the plant requirements ...has no relation to security issues." JA at 515. There is no other mention or discussion of defense or security. This is unacceptable, unfair to the public and dangerous. A change in the required
protections against fire in the case of an emergency shut-down of the reactor has enormous and obvious implications for the defense and security of the plant. There are numerous defense and security consequence of the "exemption" that the NRC refused to consider. For example, the "exemption" substitutes
reliance on personnel-based, manual fire suppression rather than Appendix R's requirement of physical insulation. The availability of such personnel, the actual
physical ability of fire personnel to get into the reactor buildings to suppress fire, the consequences of a delay caused by terrorism or other intentional interference with such efforts, all greatly enhance the danger of catastrophic accident.
face of such concerns, the NRC simply refused to address the issue, and instead provided an unsupported, circular, conclusory, arbitrary and baseless statement. The required Finding must be based on something more than the self-validating words of NRC staff reciting only the fact that the staff concludes there is "no relation" to the common defense and security. C. The NRC Has Not Met Its Obligation To Make A Reasoned And Supported Finding On Whether The "Exemption" Is Based On "Special Circumstances." With respect to the required Finding of "special circumstances" Plaintiffs again point out that this Finding is based on a document that the NRC neither possesses nor considered, as more fully argued in Argument V. This alone is evidence of NRC's failure to meet its own regulatory requirements. D. Plaintiffs Concede A Minimal Facial Basis For The Required Finding On "Undue Risk."
The NRC was also required to make a fourth Finding that the "exemption" presents no "undue risk to the public health and safety." Of the 31 documents in
the record, several deal with the techniques available to suppress fires. Plaintiffs assert that this evidence does not support the required Finding of no "undue risk". However, there is evidence in the record and an analysis of that evidence was undertaken by the NRC. Therefore, unlike the Findings with respect to 42
"authorized by law", "common defense and security", and "special circumstances" Plaintiffs concede a minimal facial basis for the "undue risk" Finding. V. THE EXEMPTION IS INVALID BECAUSE THE RECORD DOES NOT CONTAIN, NOR DOES THE NRC POSSESS, A DOCUMENT ON WHICH THE NRC EXPLICITY RELIED. The NRC violated the requirements of 10 C.F .R. § 50.12, because the "exemption" explicitly and by name relied on a document not in the possession of the NRC and not part of the record, and the NRC has conceded same. 10 C.F .R. § 50.12 requires a Finding of "special circumstances", absent which the "exemption" may not be granted. The text of that part of the "exemption" which contains the required "special circumstances" Finding cites a document entitled "the licensee's fire hazards
analysis." JA at 515. No such document appears in the record, which the NRC has repeatedly stated contains the entirety of the documents it considered in the "exemption" process. This document is also not available through the NRC's webbased document retrieval service. "exemption. " The NRC does not dispute that it relied on a document it does not possess. In explanation, at oral argument before the Court below, NRC counsel testified as follows:
This constitutes a fatal facial defect in the
MR. TORRANCE: It's true that the NRC does not have that document ....But the underlying documents that constituted that analysis were in the record and were considered. THE COURT: How do I know that? MR. TORRANCE: Well, it's true that I don't have anything in the record that points to that, that actually says that. I have been told by the NRC that that's the case. (JA at 1094). The Court below accepted the NRC's argument when it stated: "The
Commission argued that while there is no document titled "the fire hazards safety analysis" in the record, the information and documents comprising the analysis are in the record." JA at 957. NRC counsel did not cite what facts and analysis were contained in "the fire hazards safety analysis," nor where in the record these facts and analysis are contained. In fact, the documents in the record do not contain facts and analysis of the matters contained in "the fire hazards safety analysis." Instead, NRC offered a self-serving and baseless explanation which the Court below accepted without examination. Whether or not such data was actually considered is a factual matter
not contained in the record or demonstrated by independent evidence. An agency may not explicitly rely on a document not in the public record, and make an unsupported factual declaration at oral argument in hopes of being rescued from a fatal violation of administrative law and practice.
The Supreme Court has addressed attempts by an administrative agency to cure a fatal defect by the statements of appellate counsel. "The courts may not accept appellate counsel's post hoc rationalizations for agency action ... "
Burlington, 371 U. S. at 168. Thus, the NRC's reliance on a document not in the record is a fatal defect, and opposing counsel's testimony at oral argument cannot be allowed to cure this defect. VI. THE EXEMPTION IS INVALID BECAUSE THE NRC FAILED TO HOLD A PUBLIC HEARING OR PERMIT PUBLIC PARTICIPATION, THEREBY VIOLATING THE ATOMIC ENERGY ACT AND THE ADMINISTRATIVE PROCEDURES ACT. The AEA and the APA require the NRC to engage in a transparent, wellreasoned decision process that involves and informs the public, prior to making its ultimate decision. See 42 U.S.C. § 2239(a)(1)(A); 5 U.S.C. § 554. The public
plays an important role in contributing to agency decisions that significantly impact the population's health, safety and well-being, and agencies such as the See e.g., Citizens
NRC should not foist actions onto an unsuspecting public.
Awareness Network, Inc. v. N.R.C, 59 F.3d 284, 295(1st Cir. 1995) (by failing to hold a public hearing under the AEA, NRC would "eviscerate the very procedural protections Congress envisioned in its enactment of section 189(a)"); See statement of Senator Anderson supra at 28.
The NRC violated both the letter and spirit of these laws by granting Entergy permission to operate with fire insulation lasting less than half of the regulatory requirement in a truncated process from which the public was excluded entirely. The AEA states: In any proceeding ... for the granting, suspending, revoking, or amending of any license ... and in any proceeding for the issuance or modification of rules and regulations dealing with the activities of licensees ... the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding .... (42 U.S.C. § 2239(a)(1)(A)) This section of the AEA required NRC to hold a hearing before granting a major fire safety "exemption" because: (1) as this Court previously determined the "exemption" proceeding was substantively interchangeable with the amendment of a license; and (2) the proceeding entailed the "modification of rules and regulations dealing with the activities of licensees." NRC contends that by designating its action as an "exemption" rather than an "amendment," it evaded the otherwise applicable public participation requirements for the "granting, suspending, revoking or amending of any license." The NRC
concedes that if such "exemption" power exists it is implicitly derived from the AEA. S.D.N.Y. NRC Memo. of Law in Supp. Of Motion to Dismiss P 10. If Congress intended to include an inherent "exemption" power in the AEA, then it is reasonable to assume that it also intended all the AEA's provisions to apply
including public participation. To alternately construe the ABA's language broadly and narrowly, as required to assert power but eschew the natural limits of that power, is an opportunistic method of statutory construction so self-serving that it cannot be permitted to survive. Moreover, proceedings, by mandating that hearings "shall" be held for designated
Congress made clear that the NRC may not evade the hearing
requirement merely by designating an equivalent proceeding by a different name. See Citizens Awareness, 59 F.3d at 295 (NRC's claimed right to deny a hearing "undermine [d] the integrity of the licensing process" because "it is the substance of the NRC action that determines entitlement to a section 189(a) hearing, not the particular label the NRC chooses to assign to its action) (citations omitted)); See also Columbia Broad. Sys., Inc. v. United States, 316 U.S. 407, 416 (1942); accord Massachusetts v. NRC, 878 F.2d 1516, 1522 (1st Cir. 1989) This Court, in performing its jurisdictional analysis under the Hobbs Act, observed that, "under the NRC regulations, exemption from an amendment." little appears to distinguish an
Indeed, the Court noted specifically with respect
to IP's fire safety compliance, that "NRC could have alternatively treated the order as an amendment to Indian Point's license." JA at 970. Although this Court
declined jurisdiction it specifically limited its finding to jurisdiction, and expressed "no opinion as to whether the NRC's hearing denial was proper." Despite that express language, the District Court ignored this Court's indication that a deeper analysis is required when determining the right to a hearing. The District Court instead confined its opinion to: (1) reliance on the
Second Circuit's purely jurisdictional decision, and (2) deference afforded to the NRC. Declining to perform a more substantive analysis, the District Court then concluded summarily that "because § 2239 does not refer to exemptions no hearing was required." JA at 942. The instant appeal now squarely presents the question of whether NRC may use its power to choose between substantially equivalent administrative actions to deprive the public of its rights to participate. Not only would such a result be
unjust and inequitable with respect to a matter that affects the health and safety of over 20 million residents, but Congress legislated against just such a result in the AEA. See 42 U.S.C. § 2239(a)(1)(A). The AEA also required the NRC to hold a hearing before relaxing the fire safety provisions because the proceeding effected a "modification of rules and regulations dealing with the activities of licensees." 42 U.S.C. § 2239(a)(1)(A).
The exemption modified the sixty minute rule by allowing Entergy to operate with
a twenty-four minute fire resistance standard.
As discussed above, courts have
looked to the substance rather than the label attached to NRC actions in determining the necessity for a hearing. See Kelley v. Selin, 42 F.3d 1501, 1505-06 (6th Cir. 1995); Massachusetts, 878 F.2d at 1522. In the brief submitted below for Amicus Curiae Attorney General of the State of New York in Opposition to the Motion to Dismiss, Andrew Cuomo aptly stated that "[t]he NRC cannot deny the public their right to participate in licensing and rulemaking proceedings by
manipulating the form of the proceeding." JA at 991. The courts have repeatedly come to the same conclusion and found that the NRC may not elevate form over substance. Specifically, in finding that the
plaintiff in that case was entitled to a hearing under section 189(a), the First Circuit stated: [The NRC] would have us determine that a "proceeding" specifically aimed at excusing a licensee from filing a petition to amend its license is not the functional equivalent of a proceeding to allow a de facto "amendment" to its license. As this construct would eviscerate the very procedural protections Congress envisioned in its enactment of section 189(a), we decline to permit the Commission to do by indirection what it is prohibited from doing directly. Citizens Awareness, 59 F.3d at 295 (citation omitted). Finally, the APA and the NRC's own regulations require the NRC to provide the public with notice of, and an opportunity to comment on, proposed rule
changes or modifications to regulations. 2.805.
5 U.S.C. § 553; 10 C.F.R. §§ 2.804,
The APA further provides that after the required notice, "the agency shall
give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation." Id. The "exemption" granted to Entergy relaxed the Appendix
R standards for fire safety at IP, and accordingly triggered the protections afforded by these provisions. In the wake of the Fukushima Daiichi nuclear disaster in Japan, the equity and foresight of our laws, emphasizing transparency and public engagement, is readily apparent. For the NRC to craft a power that circumvents the AEA and
AP A merely by appending the label "exemption" to an action that this Court has already recognized as substantively interchangeable with an amendment would flout Congressional intent. The result would be to deny meaningful public
participation in decisions that may profoundly impact the long-term health and safety of citizens in the most densely packed region of our country. This case should not tum on the NRC's choice of vocabulary. This Court should enforce the black letter law and the underlying purposes of the AEA and the APA. The rights of the Plaintiffs and the safety of the public truly require no less.
THE "EXEMPTION" IS INVALID BECAUSE THE NRC VIOLATED NEPA BY FAILING TO HOLD A PUBLIC HEARING. NEPA required the NRC, as part of its environmental review, to hold a
public hearing and proceed through a transparent decision process that engaged the public, prior to taking action. See 40 C.F.R. § 1506.6(c); Pogliani v. US Army Corps. of Engineers, 306 F.3d 1235, 1237 (2d Cir 2002) (Congress enacted NEPA "to ensure that federal agencies examine and disclose the potential environmental impacts of projects before allowing them to proceed") (emphasis added) The NRC failed to hold such a hearing or involve the public in any way. The Council on Environmental Quality ("CEQ") regulations state that
agencies "shall ... hold or sponsor public hearings or public meetings" (emphasis added) whenever it is "appropriate" to do so. In determining whether a hearing is appropriate, agencies must consider whether there is "[ s]ubstantial environmental controversy concerning the proposed action or substantial interest in holding the hearing." NEPA also requires agencies to hold public hearings when otherwise
required to do so by statute applicable to the agency. ld. The NRC's act of exempting Entergy from compliance with the relevant fire safety standards gave rise to both a "substantial environmental controversy" and a "substantial interest in holding the hearing," thus triggering NEP A's public hearing
See 40 C.F .R. § 1506.6( c). Plaintiffs submitted to the Court below
a list of examples of controversy and interest surrounding these matters at IP and elsewhere. These examples include: (1) the NRC "Severe Accidents " study
(NUREG-1150) which states that "a typical nuclear power station will have three to four significant fires" and that "fire is a significant risk contributor to core damage frequency. Fire can initiate a nuclear accident and compromise the ; (2) an article in The Journal
operator's ability to control the reactor shutdown."
News on April 29, 2005 entitled "Indian Point has Unsafe Fire Insulation, Fed Warn," wherein the author describes unsafe wiring at Indian Point 2 and 3; (3) an article in The Journal News on March 3, 2004 entitled "Nuke Plant Wiring Probed," wherein the author describes how electrical wiring for the critical safety and operating systems at the Indian Point 2 nuclear power plant violate federal regulations and could be inoperable following an accident or assault; (4) NRC Information Notice 2005-07, wherein it was stated that Hemyc fire barriers "do not provide the level of protection expected for a one-hour rated fire barrier; and (5) NRC Report on the Reassessment of the NRC Fire Protection Program (March 1993), wherein the U.S. House of Representatives conducted an oversight hearing concerning the deficiencies in Thermo-Lag fire barriers used at Indian Point.
In support of its Motion, the NRC failed to cite any comparable instance in which a court upheld an agency's failure to inform or solicit feedback from the public. To the contrary, "NEPA and the regulations promulgated under it
encourage public involvement in the preparation of environmental assessments." Town of Rye, New York v. Skinner, 907 F.2d 23, 24 (2d Cir. 1990) (per curiam) See also, Pogliani, 306 F.3d at 1238 (CEQ regulations "require agencies to
'involve the public' in the NEPA review process by noticing and, holding public hearings"); Hanly v. Kleindienst, 471 F.2d 823, 836 (2d Cir. 1972) ("before a preliminary or threshold determination of significance is made the responsible agency must give notice to the public of the proposed major federal action and an opportunity to submit relevant facts which might bear upon the agency's threshold decision"); Citizens for Better Forestry v. Us. Department of Agriculture, 341 F.3d 961, 970 (9th Cir. 2003) ("a complete failure to involve or even inform the public about an agency's preparation of an EA and a FONSI, as was the case here, violates [the regulations implementing NEP A]"). In dismissing Plaintiffs Complaint, the District Court did not address the NEP A issues. However, in support of its Motion, the NRC posited three theories as to why its exclusion of the public was appropriate. Each of the NRC's theories fails.
First, the NRC argued that review of its failure to hold a hearing should be "doubly deferential." In support of this argument, the NRC incorrectly claims that the choice of whether to hold a hearing is purely discretionary, and ignores the specific guidelines on this issue provided by NEP A. Second, the NRC concluded that even when finding that a hearing would benefit the public interest, a court "cannot require" it. S.D.N.Y. NRC Memo. of Law in Supp. Of Motion to Dismiss P 10. However, the Ninth Circuit Court of Appeals has held that "wholesale neglect of the regulations' inclusion of the public in the process results in a
procedural injury" and "undermines the very purpose of NEPA .... " Citizens for Better Forestry, 341 F.3d at 970-971 (reversing and remanding to the district court to determine whether injunctive relief was appropriate). Third, the NRC argued that the public's concern and interest is not
sufficiently tied to fire safety, but rather, is too general to warrant a hearing. The basis for this assertion is unclear, and in any event, it is soundly refuted by Plaintiff s Exhibit A, submitted to the District Court. The NRC's compliance with NEPA's public participation provisions was doubly important in this case because the NRC failed to provide a public hearing
as required by the ABA and AP A. In other words, there was no other opportunity for public participation that might have mitigated the need for a NEP A hearing. The NRC violated NEP A by failing to hold a public hearing or otherwise comply with NEPA's public participation requirements. The United States District Court for the District of Columbia has aptly articulated the principle that, "[w]hile courts should often defer to agency decision-making, they must be vigilant to insure that agencies pushing the line of NEP A compliance do not overstep it, else the statute becomes of little meaning." 876 (1991). Sierra Club v. Watkins, 808.F. Supp. 852,
THE "EXEMPTION" IS INVALID BECAUSE THE NRC VIOLATED NEPA BY FAILING TO PREPARE AN ENVIRONMENTAL IMPACT STATEMENT AND FAILING TO TAKE THE REQUISITE "HARD LOOK" AT THE ENVIRONMENTAL CONSEQUENCES OF ITS DECISION AND ALTERNATIVES TO THE "EXEMPTION." NEP A required the NRC, as part of any EIS or EA or FONSI, to consider
alternatives to the proposed action. The NRC did neither. The NRC was required to take a ""hard look" at the environmental and public consequences of the "exemption".
Baltimore Gas & Elec. Co. v. Natural
Res. De! Counsel, Inc., 462 U.S. 87,97 (1983). NEPA "places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action," and "ensures that the agency will inform the public that it has indeed considered environmental concerns in its decision-making process." Id. The court will "determine whether the agency has, in fact, adequately studied the issue and taken a 'hard look' at the environmental consequences of its decision." Crounse Corp. v. l.CC,781 F.2d 1176, 1193 (6th Cir. 1986). The NRC
had an "affirmative duty to inquire into and consider" all facts relevant to its statutory obligation to protect the public and to "see to it that the record is complete." Scenic Hudson Preservation Conf. v. Fed. Power Comm 'n, 354 F.2d 608, 620 (2d Cir. 1965). Similarly, NEPA requires that federal agencies "study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources." 42 U.S.C. § 4332(2)(E). Implementing regulations promulgated by the CEQ
require the agency to prepare an EA to explain how the agency concluded an EIS was not necessary and set out sufficient evidence for the FONS!. 40 C.F .R.
§ 1508.9. Finally, the regulations include an independent requirement that agencies preparing an EA examine alternatives, as required by § 102(2)(E) ofNEPA.
generally, Sierra Club, 808 F.Supp at 858 (D.C. 1991). consideration to issuing the "exemption"
By limiting its
or taking no action at all the NRC
violated these requirements. There are many other reasonable alternatives ignored by the NRC, the most obvious being a requirement that the fire insulation be upgraded to meet the one-hour requirement. The NRC simply refused to consider this alternative. This failure is egregious and alone invalidates the NEP A process. Plaintiffs draw this Court's attention to the complete absence of any mention of his issue in the record, and the complete silence of the NEP A documents. The NRC simply failed to address numerous significant environmental concerns and arbitrarily limited its consideration of alternatives to two, whether to grant the "exemption" or whether to do nothing. Both these failures violate NEP A. A. The NRC Violated NEP A By Refusing To Consider Serious Environmental Issues and Failing To Prepare An Environmental Impact Statement. The NRC violated NEP A by failing to prepare an EIS or to include in the EA and FONSI many crucial environmental and public health consequences of the IP "exemption." These impacts include the possibility of large fires, acknowledged design weaknesses at IP, the impact on the New York metropolitan environment of the
loss of electrically
safety systems at IP, and alternatives
"exemption" including upgrading fire barriers to provide sixty minute protection. The NRC gave no consideration to the environmental impact of large fires. For the previous six years, NRC noted the possibility that reactors might face large explosions or fires that could disable large areas of such facilities. Indeed, just 10 weeks before the NRC signed off on the underlying "exemption" lowering the minimum fire protection requirement, the NRC approved a formal amendment to Indian Point Unit Ill's operating license to develop strategies to respond to "large fires and explosions" at the facility. Additionally, the NRC failed to mention or address the fact that a 1987 Safety Evaluation (JA at 141-162) indicated a major design flaw at IP namely that two redundant cables were only six inches apart at a location within the Primary Auxiliary Building and that a fire load of 80,000 BTU/ft2 representing a fire severity of approximately one hour existed within the tunnel area.22 (JA at 144, 146-147, 149). Likewise, the NRC did not address the fact that a previously-issued
exemption had relied on the licensee's commitment to protect certain areas "with a 1- hour fire-rated barrier". (JA at 150-151).
22 This may explain the NRC's strange language which characterizes its action as a revision of previously granted exemptions.
Nor did the NRC acknowledge that "electrical" systems fires had been the cause of 45% of "alert" category fires and 41% of all reported fires at u.s. reactors between January 1995 and December 2007. (JA at 19-20) (6 out of 13 alert fires, 51 out of all 125 reported fires). Also not referenced was a report by Sandia National Laboratories examining the cause of fires at various reactor sites around the world between 1968 and early 1996, including a number that involved SAND 2001- 1676-P, Risk Methods
electrical cables. See NUREG/CR-6738,
Insights Gained From Fire Incidents, Table 3-1 (Sept. 2001). NRC Staff also did not acknowledge or address that an earlier fire inspection revealed that Entergy had stored four drums of flammable material for over a year in the Primary Auxiliary Building, a violation that should have raised questions about the effectiveness of Entergy's proposed commitment to follow
"administrative controls" to eliminate combustible material within that building. These issues are so significant that they triggered the requirement that a full EIS be prepared. Even if an EIS was not prepared, the record, the EA and the FONSI are silent with respect to them. The NRC's failure to address the fact that electrical fires constitute a significant portion of reactor fires, that the facility could face large explosions and fires, and that a previous analysis and inspections identified weaknesses inthe placement of electrical cables and fire protection plan
renders the approval of the "exemption" arbitrary and capricious. Mfrs. Ass 'n of
U.S. at 43 (stating that an agency's rule is arbitrary and capricious if the
agency "entirely failed to consider an important aspect of the problem" or "offered an explanation for its decision that runs counter to the evidence before the agency"); Islander E. Pipeline Co., LLC v. Conn. Dep
of Envtl. Protection, 467
F.3d 295, 313 (2d Cir. 2006) (finding a denial of an application to be arbitrary and capricious where the agency failed to mention scientific studies in the record with findings contrary to those relied upon by the agency). Plaintiffs do not herein argue that the NRC miscalculated or erroneously concluded that the "exemption" could be legally issued on the basis of the
evironmental and public health evidence and analysis that actually took place. Plaintiffs point out that the record and the NEP A documents are devoid of any evidence or analysis of these questions, and therefore the NRC failed to satisfy the process-related provisions ofNEPA.
The NRC Failed To Consider Alternatives To The "Exemption."
If an agency does not prepare an environmental impact statement, CEQ regulations require it to examine alternatives to the proposed action. The agency is required to "rigorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from the detailed study, briefly discuss
the reasons for their having been eliminated" and "include the alternative of no action." 40 C.F.R. § 1502.14. In this case, the NRC unlawfully limited its analysis to only two alternatives: granting the "exemption" or doing nothing. In fact, these two "alternatives" are
really one and the same since under either alternative, the substandard Hemyc barriers stay in place around the critical electrical cables. The NRC simply refused to consider or even mention another realistic alternative: upgrading the existing fire protection barriers to the minimal sixty-minute standard required by Appendix R for an estimated cost of approximately $500,000.00. The failure to examine this
obvious alternative confirms that instead of taking the requisite "hard look," rigorously explaining and definitively evaluating reasonable alternatives, NRC staff swept the issue under the carpet. Accordingly, the District Court should have vacated and remanded NRC's determination and NEPA Finding of No Significant Impact.
It is respectfully submitted that for the above mentioned reasons, this Court
should determine that the "exemption" granted to Indian Point and the processes used to grant it were invalid, arbitrary and capricious, an abuse of discretion, in violation of constitutional rights, in excess of its statutory power, and inconsistent with required procedures. Accordingly, Plaintiffs seek a declaration of such
invalidity compared with such other remedies as may be required in the sound discretion of the Courts.
September 14, 2011 White Plains, New York
RICHARD L. BRODSKY
CERTIFICATE OF COMPLIANCE RICHARD L. BRODSKY, an attorney admitted to practice in this Court, certifies pursuant to Federal Rules of Appellate Procedure 32(a) (7) (B) that, according to the word processing system used to prepare this brief, the brief contains 13,377 words of a proportionally spaced 14-point font, excluding title page, table of contents, table of authorities, and this certificate of compliance.
September 14, 2011 White Plains, New York
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