Brodsky v. U.S. Nuclear Regulatory Commission

Energy and Natural Resources

New York Law Journal

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Judge Reena Raggi

Entergy Nuclear Operations operates the Indian Point 3 nuclear power plant. Since 1987 Indian Point 3 has relied on a "Hemyc" fire barrier—originally rated for one hour of fire protection—to satisfy the third objective of Nuclear Regulatory Commission fire safety regulations set out at 10 CFR pat. 50, App. II. A. In 2005, the NRC informed its licensees that Hemyc did not perform for one hour as designed. Plaintiffs had sought to modify or suspend Indian Point 3's operating license. District court awarded the NRC summary judgment in plaintiffs' challenge to the NRC's 2007 grant of an exemption to the Indian Point plant from its compliance with certain fire safety regulations. Deeming plaintiffs' challenges meritless, the Second Circuit affirmed the bulk of the district court's judgment. However, it vacated judgment to the extent that the NRC granted the exemption contrary to the National Environmental Policy Act's public participation regulations. The circuit remanded with instruction that the case be remanded to the NRC so it could supplement the record to explain why public input into the exemption request was inappropriate or impractical, or to take actions deemed appropriate to resolve the issue.

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