Academic journal article Energy Law Journal

Report of the Nuclear Regulation Subcommittee

Academic journal article Energy Law Journal

Report of the Nuclear Regulation Subcommittee

Article excerpt

The following is the report of the Energy Bar Association's Nuclear Regulation Subcommittee. In this report, the Committee summarizes significant court decisions and regulatory developments that have occurred in the area of nuclear energy regulation from January 1 to December 31, 2015.*

I. COURT DECISIONS

A. Brodsky v. NRC

On February 26, 2015, the U.S. District Court for the Southern District of New York granted the Nuclear Regulatory Commission (NRC) summary judgment on a claim brought by Richard Brodsky, a former New York State Assemblyman, challenging NRC-granted exemptions.1 The case stems from a longstanding dispute over exemptions the NRC had granted to Entergy relating to the Indian Point Nuclear Power Plant Unit 3 fire safety program. To comply with NRC fire-protection regulations, Entergy chose a fire barrier called Hemyc to enclose the cables of a safety shutdown system. In 2006, the NRC notified licensees that Hemyc could not withstand fire for the required one-hour burn time.2 As a result, Entergy sought exemptions to continue the use of Hemyc.3

After the NRC granted the exemptions, Mr. Brodsky challenged them before the Second Circuit.4 The Second Circuit originally dismissed Mr. Brodsky's challenge for lack of jurisdiction.5 Mr. Brodsky refiled his challenge in district court, but the court granted the NRC summary judgment.6 Mr. Brodsky appealed and the Second Circuit affirmed the district court's judgment in all respects but one. The Second Circuit found that the record was insufficient to determine whether the NRC violated National Environmental Policy Act (NEPA) regulations that allow for public involvement on environmental assessments (EAs) where appropriate and practicable.7 The Second Circuit remanded the case so the NRC could either "(1) supplement the administrative record to explain why allowing public input into the exemption request was inappropriate or impracticable, or (2) take such other action as it may deem appropriate to resolve this issue."8

On remand, the NRC chose the second option, re-noticed the original exemptions, and invited comment on the EA.9 After considering the comments, in 2013 NRC reissued the exemptions and found that NEPA did not require the EA to evaluate the impacts of a terrorist attack.10 After Mr. Brodsky returned to the district court to challenge the exemptions and EA, the court granted summary judgment for the NRC.11 The district court concluded that "the record demonstrates that the NRC has satisfied its public participation obligations as set out by the Court of Appeals" and "reveals no reason to disturb the prior rulings of this case."12 With regard to the risk of terrorism, the court found that "[n]othing in the recent public comments adds credibility to Plaintiffs' concern, and NEPA does not require further consideration of the environmental impacts of terrorism-related fires."13 Further, the court found that, even though the NRC was not required to do so, it "addressed commenters' concerns about a potential terrorist attack, noting that it 'has analyzed plausible threat scenarios' and concluded 'from its independent safety evaluation . . . that a severe fire is not plausible and the existing fire protection features are adequate.'"14

In April 2015, Mr. Brodsky filed notice of appeal from the district court decision. That appeal is pending before the Second Circuit.15

II. REGULATORY DEVELOPMENTS

A. Continued Storage Rule and Associated Litigation

In 2015, the NRC's rule addressing the environmental impacts of continued storage of spent nuclear fuel faced a number of challenges.16 This rule was a product of the D.C. Circuit's New York v. NRC I decision that vacated the agency's earlier "Waste Confidence Decision."17 Shortly after the issuance of the revamped Continued Storage Rule and associated generic environmental impact statement (GEIS), several environmental groups challenged the rule and requested that the Commission suspend final reactor licensing decisions, claiming that the Atomic Energy Act requires the NRC to address the safety of spent fuel disposal in a repository when it issues reactor licenses. …

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