Court Calls for Public Input on Nuke Exemptions


Federal regulators must hear from the public before granting safety exemptions to nuclear power plants, unless the hearings would be “inappropriate or impracticable,” an appeals court says.

The 2nd U.S. Circuit Court of Appeals on Monday vacated part of a district court ruling involving an exemption to fire safety rules at the Indian Point 3 plant in the New York City suburbs.

The ruling, although narrow, was hailed by environmentalists. Robert F. Kennedy, Jr., chief prosecuting attorney for Riverkeeper, called it “a turning point” that would “… protect and involve the public in key NRC … decisions.”

The 2007 exemption from the Nuclear Regulatory Commission allowed the plant to use insulation that would protect cables from fire for 24 minutes. The existing rule called for a 1-hour protection.

Plaintiffs led by then-Assemblyman Richard Brodsky argued that the NRC never notified the public that it was considering such an exemption. They claimed that violated the National Environmental Policy Act.

That claim and others were denied by a district court, but the appeals court said NEPA regulations “identify public scrutiny as … ‘essential’” to the process.

It said that before decisions were made environmental information had to be made available to public officials and citizens.

The court said the NRC can avoid public hearings only by showing they would be “inappropriate or impracticable,” but the agency had failed to show that was the case on fire safety exemption.

“The record before us fails to provide any agency explanation for why no public participation was deemed practicable or appropriate,” the court said.

But it gave the NRC another chance to explain and sent the issue back to the district court.

NRC spokesman Neil Sheehan said, “Our legal staff will review the court decision and respond within any deadline set by the court.”

He noted that the NRC has denied many exemptions. A year ago the NRC turned down 42 of the 50 exemptions requested by Entergy Nuclear, owner of the Indian Point plants in Buchanan, 35 miles north of Manhattan.

Brodsky, who argued the case himself, said the ruling “is the first big crack in the secret façade the NRC has placed over its decisions.”