ML032810312

Brief of Respondents Entergy Nuclear Indian Point 2, LLC, Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc., Dated September 26, 2003

ML032810312
Person / Time
Site:	Indian Point
Issue date:	09/26/2003
From:	Silberg J Entergy Nuclear Indian Point 2, Entergy Nuclear Indian Point 3, Entergy Nuclear Operations, Shaw, Pittman, Potts & Trowbridge
To:	Office of Nuclear Reactor Regulation, US Federal Judiciary, Court of Appeals, 2nd Circuit
References
03-4313, FOIA/PA-2004-0042
Download: ML032810312 (43)

Text

TABLE OF CONTENTS JURISDICTIONAL STATEMENT . ................................................ 1 STATEMENT OF THE ISSUES PRESENTED FOR REVIEW ............................ 2 STATEMENT OF THE FACTS ................................................. 3

SUMMARY

OF THE ARGUMENT ............... .................................. 4 ARGUMENT............................................................................................................5 I. THIS COURT HAS NO JURISDICTION TO REVIEW THE NRC'S PARTIAL DENIAL OF RIVERKEEPER'S 2.206 PETITION BECAUSE THE AEA PROVIDES NO GUIDELINES FOR THE NRC'S EXERCISE OF ITS ENFORCEMENT POWERS, AND THERE IS NO EXPRESS STATUTORY MANDATE FOR THE AGENCY TO TAKE ENFORCEMENT ACTION.............................................................5 ............. 5 A. The Standard Set by the Supreme Court in Heckler v.

Chaney Controls the Disposition of Riverkeeper's Petition..................................................................................................5 B. The AEA Provides No Enforcement Guidelines but Leaves Enforcement Decisions to the NRC's Discretion .................... 6 C. Courts Have Uniformly Concluded that Denials of Section 2.206 Enforcement Requests Are Not Reviewable.......................................................................................8 II. THE "ABDICATION" LANGUAGE IN CHANEY DOES NOT APPLY HERE BECAUSE THERE IS NEITHER AN EXPRESSLY ADOPTED AGENCY POLICY ABDICATING THE NRC'S STATUTORY RESPONSIBILITIES NOR AGENCY ACTIONS THAT EVIDENCE SUCH AN ABDICATION.............................................................................................. 10 A. The "Abdication" Language Is a Particular Application of the Chaney Analysis, not Relevant to the Instant Petition................................................................................................ 10

B. In Any Case, There Was No NRC "Abdication"................................. 11

1. There Is No Express NRC Policy that Reflects an Abdication of Its Statutory Responsibilities .11

2. There Are No NRC Actions that Evidence an Abdication by the Agency of Its Statutory Responsibilities........................................................................ 17

a. The alleged "gap" in protection of Indian Point is a misreading of the NRC's Proposed Decision......................................................................... 17

b. The claim that there is a high likelihood of an aerial attack against Indian Point is unsupported ...... 19 III. THE DENIAL OF PETITIONER'S REQUEST WAS NOT ARBITRARY, CAPRICIOUS, AN ABUSE OF DISCRETION OR OTHERWISE NOT IN ACCORDANCE WITH LAW .21 A. Standard of Review of Discretionary Agency Action ........................ 21 B. The NRC Actions with Respect to Security at Indian Point Are Not Arbitrary, Capricious or an Abuse of Discretion............................................................................................ 23

1. The NRC Has Aggressively Carried Out Its Mandate to Protect the Security of Nuclear Power Plants........................................................................................ 23

2. The NRC Properly Addressed Petitioner's Concerns................................................................................... 28 CONCLUSION ............................ 31 ii

TABLE OF AUTHORITIES CASES Adams v. Richardson,480 F.2d 1159 (D.C. Cir. 1973) ............................................... 10-11 Arnow v. NRC, 868 F.2d 223 (7dCir.), cert. denied, 493 U.S. 813 (1989) ................ 7,9,11 Bano v. Union Carbide Corp., 273 F.3d 120 (2d Cir. 2001) ....................................... 12 Blockv. SEC, 50 F.3d 1978 (D.C. Cir. 1995) ......................................................... 27 Bowman Transp., Inc. v. Arkansas-Best FreightSys., Inc., 419 U.S. 281 (1974) ....... 22 Christiansonv. Hauptman, 991 F.2d 59 (2d Cir. 1993) .............................................. 9 Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) ............................. 21,22,27 County of Rockland v. NRC, 709 F.2d 766 (2d Cir.), cert. denied, 464 U.S. 993 (1983) ......................................................... 7,21,31 Dina v. Attorney General, 793 F.2d 473 (2d Cir. 1986) .............................................. 9 Doherty v. Meese, 808 F.2d 938 (2d Cir. 1986) .......................................................... 9 Dominion Nuclear Conn. (Millstone Nuclear Power Station, Unit No. 3), CLI 27, 56 N.R.C. 367 (2002) ......................................................... 14 Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), CLI-02-24, 56 N.R.C. 335 (2002) ......................................................... 14 Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI-02-26, 56 NRC 358 (2002) ............................................... 13 East Oakland-FruitvalePlanningCouncil v. Rumsfeld, 471 F.2d 524 (96 Cir.

1972) ......................................................... 22 Entergy Nuclear Operations, Inc. (Indian Point, Units 1, 2, & 3), DD-02-06, 56 N.R.C. 296 (2002) ......................................................... 3-4 iii

v Ethyl Corp. v. EPA, 541 F.2d 1 (D.C. Cir.) (en banc), cert. denied, 426 U.S. 941 (1976) ................................................... 21 FloridaPower & Light Co. v. Lorion, 470 U.S. 729 (1985) ....................................... 6 Freeman Eng'gAssocs. v. FCC, 103 F.3d 169 (D.C. Cir. 1997) ................................ 17 Heckler v. Chaney, 470 U.S. 821 (1985) ..................................................... passim Hudson TransitLines, Inc. v. ICC, 765 F.2d 329 (1985) ............................................ 22 Lamprecht v. FCC, 958 F.2d 382 (D.C. Cir. 1992) ................................................... 12 Lunney v. United States, 319 F.3d 550 (2d Cir. 2003) ................................................. 9 Marlow v. Dep 't ofEduc., 820 F.2d 581 (2d Cir. 1987),

cert. denied, 484 U.S. 1044 (1988) .................................................... 9 Mass. Pub. Interest Research Group v. NRC, 852 F.2d 9 (l Cir. 1988) ................... 7,8,11 Motor Vehicle Mfrs. Ass 'n v. State FarmMut. Ins. Agency, 462 U.S. 29 (1983) ................................................... 31 N.C. v. FERC, 112 F.3d 1175 (D.C. Cir. 1997) ................................................... 17 N. Y. Pub. Interest Research Group v. Whitman, 321 F. 3d 316 (2d Cir. 2003) ................................................... 6,9 PrivateFuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-02-25, 56 N.R.C. 340 (2002) ................................................... 13-14 Pub. Serv. Co. ofN.H. v. NRC, 582 F.2d 77 (1 Cir.), cert. denied, 439 U.S. 1046 (1978) .................................................... 7 Safe Energy Coalitionof Mich. V. NRC, 866 F.2d 1473 (DC Cir. 1989) ................................................... 9,11 Schillingv. Rogers,363 U.S. 666 (1960) ................................................... 22 iv

I' Siegel v. AEC, 400 F.2d 778 (DC Cir. 1968) .............................. 7,22 STATUTES 5 U.S.C. § 701(a)(2) .............................. 1,6,10 5 U.S.C. § 706(2)(A) .............................. 21,22 28 U.S.C. § 2342(4) ............................... 1 42 U.S.C. § 1332 ............................... 14 42 U.S.C. § 2000d-1 .............................. 11 42 U.S.C. § 2011 et seq............................ passim 42 U.S.C. § 2201(c) ............................... 7 42 U.S.C. § 2201(p) ............................... 7 42 U.S.C. § 2236(a) ............................... 7 42 U.S.C. § 2280 ............................... 7 REGULATIONS 10 C.F.R. § 2.202 ............................... 8 10 C.F.R. § 2.206 et seq............................. passim 10 C.F.R § 73.21(b)(1)(viii) .............................. 23 10 C.F.R. § 73.55 ............................... 23 10 § 73, C.F.R.

App. C .............................. 23 v

FEDERAL REGISTER NOTICES Entergy Nuclear Operations, Inc.: Receipt ofRequestfor Action Under 10 CFR 2.206,68 Fed. Reg. 41,187 (July 10, 2003) .......................................................... 12 FinalRule: PhysicalProtectionfor Spent NuclearFuel and High-Level Radioactive Waste, 63 Fed. Reg. 26,955 (May 15, 1998) ........................................... 13 NRC OrderModifying PowerReactor Licenses Effective Immediately, 67 Fed. Reg. 9,792 (Mar. 4,2002) .......................................................... 24 NRC OrderModifying PowerReactor Licenses Effective Immediately, 68 Fed. Reg. 24,510 (May 7, 2003) .......................................................... 25 NRC OrderModifying PowerReactor Licenses Effective Immediately, 68 Fed. Reg. 24,514 (May 7, 2003) .......................................................... 25 NRC OrderModifying PowerReactor Licenses Effective Immediately, 68 Fed. Reg. 24,517 (May 7,2003) .......................................................... 25 Safety and Security Zones; New York Marine Inspection Zone & Captain ofthe Port Zone: FinalRule, 68 Fed. Reg. 2,886 (Jan. 22, 2003) ......................................... 16 MISCELLANEOUS Calculationof ReactorAccident Consequences, Sandia National Laboratories (1982) .......................................................... 29 Close Indian Point, httR://riverkeeer.orn/camnaign.phpfmdian point ..................... 3 Comm. Discussion Draft, NuclearMatters - Price-AndersonAmendments, § 51(b)(2), H.R. 6, 108'" Cong. (Sept. 17. 2003), available online at http:llenergycommerce.house.gov/1 08/pubs/nuclear.pdf

....................................................................................................................................... 18 Letter from NRC Chairman Nils J. Diaz to the Honorable Charles Schumer dated August 7,2003, availableonline at http://www.nrc.gov/reading-rm/adams/web-based.html, Accession # ML032190686 .......................................................... 26 vi

I' Letter from NRC Chairman Diaz to the Honorable Thomas Ridge, dated Aug. 29, 2003, available online at http://www.nrc.gov/reading-rm/doc-collections/news/2003/03 -11 0.html ................ 16 Letter summaries available on line at http://www.nrc.gov/reading-rm/adams/web-based.html, Accession #1 ML030780382 and ML022340804 .......................................................... 16 Realistic Conservatism, Remarks of Chairman Nils J. Diaz, United States Nuclear Regulatory Commission, before the NRC Regulatory Information Conference, Washington, D.C. April 16,2003, NRC News Rel. No. S-03-009, available online at http://www.nrc.gov/reading-rm/doc-collections/commission/speeches/2003/s-03-009.pdf ..... 25 Remarks by NRC Commissioner Edward McGaffigan, Jr. before the NRC Regulatory Information Conference, Washington, D.C. April 17, 2003, NRC News Rel. No. S-03-012, available online at hbtp://www.nrc.gov/reading-rm/doc-collections/commission/speeches/2003/s-03-012.pdf ................................................. 25 Statement dated March 18, 2003 Concerning Nuclear Security Submitted by the United States Nuclear Regulatory Commission to the Subcommittee on Oversight and Investigations of the Committee On Energy And Commerce, United States House Of Representatives, available online at http://www.nrc.gov/reading-rm/doc-collections/congress-docs/congress-testimonv/2003/m l030770853.pdd.. .................................................. 14-16 Vii

r JURISDICTIONAL STATEMENT The Courts of Appeals have original jurisdiction to review final actions by the United States Nuclear Regulatory Commission ("NRC"). 28 U.S.C. §2342(4).

However, an agency's decision not to take enforcement action is presumed im-mune from judicial review where the enforcement decision is committed to agency discretion by law. Heckler v. Chaney, 470 U.S. 821, 832 (1985); 5 U.S.C.

§701(a)(2). Such a presumption can only be rebutted if"the substantive statute has provided guidelines for the agency to follow in exercising its enforcement pow-ers," id. at 833 (footnote omitted), or (arguably) where the agency has consciously and expressly adopted a general policy that is so extreme as to amount to an abdi-cation of its statutory responsibilities. Id. at 833, n.4.

The substantive statute here, the Atomic Energy Act of 1954, as amended

("AEA"), 42 U.S.C. §2011 et seq., provides no guidelines as to how the NRC should exercise its enforcement powers, and the NRC's response to Petitioner's en-forcement request cannot conceivably amount to an abdication of the NRC's statu-tory responsibilities. Accordingly, this Court lacks jurisdiction to review the NRC's partial denial of that request.

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW A. Whether a Court of Appeals has jurisdiction to review a decision by the NRC partially denying an enforcement request under 10 C.F.R. §2.206 where the AEA provides no guidelines for the agency to follow in the exer-cise of its enforcement powers, and where there is no express statutory man-date for the agency to take enforcement action.

B. Whether appellate jurisdiction to review an NRC decision not to take some of the requested enforcement actions can exist in the absence of an expressly adopted agency policy that abdicates its statutory responsibilities and in the face of agency actions that clearly evidence that no such abdication took place.

C. Whether, assuming this Court has jurisdiction to review the NRC's partial denial of Petitioner's enforcement request, such a denial - in light of the numerous actions taken by the NRC to enhance security at the Indian Point Unit 2 and Unit 3 nuclear power plants ("the Indian Point Units") - was arbitrary, capricious, abuse of discretion, or otherwise not in accordance with law.

STATEMENT OF THE FACTS Respondents Entergy Nuclear Indian Point 2, LLC and Entergy Nuclear In-dian Point 3, LLC are the NRC-licensed owners, respectively, of Indian Point Unit 2 and Indian Point Unit 3. Respondent Entergy Nuclear Operations, Inc. is the NRC-licensed operator of both units.' Riverkeeper, Inc. ("Riverkeeper") is an or-ganization that seeks "the immediate and permanent closure" of the Indian Point Units.2 On November 8, 2001, Riverkeeper filed with the NRC an enforcement re-quest under 10 C.F.R. §2.206 (the "2.206 Petition") asking for the immediate shut-down of the Indian Point Units, together with other relief. Joint Appendix ("JA")

52. The request was based on fear that terrorist attacks might be directed against the Indian Point Units causing "a catastrophic effect." 2.206 Petition at 2, JA 54.

The NRC gave careful consideration to Riverkeeper's enforcement request.

The agency accepted a December 20, 2001 supplement to the Petition, which set forth a declaration from a Riverkeeper consultant. On May 16, 2002, the NRC sent Riverkeeper a copy of its proposed decision on the 2.206 Petition and invited Riverkeeper to submit comments, which it did on August 9, 2002. The NRC is-sued its Director's Decision on November 18, 2002 (the "Director's Decision").

Entergy Nuclear Operations,Inc. (Indian Point Generating Unit Nos. 1, 2, and 3),

Hereinafter, these three Respondents will be jointly referred to as the "Utility Re-spondents."

2 See http://riverkeeper.orgcampaign.php/indian point.

DD-02-06, 56 N.R.C. 296 (2002), JA 24. The Director's Decision pointed out that the NRC had granted some of Riverkeeper's requests with the actions taken by the Commission in the immediate aftermath of the September 11, 2001 attacks, as well as by orders issued on February 25, 2002 to all nuclear power plants to implement interim compensatory security measures. The Director's Decision also found that the design features of nuclear power plants such as the Indian Point Units and the measures taken by the licensees and the federal government after September 11, 2001 to enhance the security of the plants are sufficient to adequately protect pub-lic health and safety. JA 32-33, 41-45, 48. Accordingly, the Director's Decision denied those aspects of the 2.206 Petition that had not already been imposed by the NRC. JA 48. The Director's Decision became final agency action upon expiration without Commission action of the period provided for Commission discretionary review, see 10 C.F.R. §2.206(c)(1) and JA 50. This Petition followed.

SUMMARY

OF THE ARGUMENT Under well-established and uniformly interpreted Supreme Court precedent, this Court has no jurisdiction to review the NRC's partial denial of Petitioner's en-forcement request because the AEA provides no guidelines for the NRC to follow in the exercise of its enforcement powers, and there is no express statutory man-date for the agency to take enforcement action. To the contrary, the AEA vests broad discretion in the NRC to take or refrain from taking enforcement action, as well as to take other actions to give effect to its statutory duties.

A potential exception to the non-reviewability of NRC's denials of requests to take enforcement action (i.e., whether the agency has "'consciously and ex-pressly adopted a general policy' that is so extreme as to amount to an abdication of its statutory responsibilities") does not apply to the instant case because (1) no expressly adopted NRC policy exists that could conceivably represent an abdica-tion of the agency's statutory responsibilities, and (2) the NRC has, in fact, not ab-dicated its responsibility to protect public health and safety.

On the merits, the actions taken by the NRC with respect to Indian Point are neither arbitrary nor capricious. To the contrary, the agency has acted responsibly and appropriately to ensure the security of the Indian Point Units.

ARGUMENT I. THIS COURT HAS NO JURISDICTION TO REVIEW THE NRC'S PARTIAL DENIAL OF RIVERKEEPER'S 2.206 PETI-TION BECAUSE THE AEA PROVIDES NO GUIDELINES FOR THE NRC'S EXERCISE OF ITS ENFORCEMENT POWERS, AND THERE IS NO EXPRESS STATUTORY MANDATE FOR THE AGENCY TO TAKE ENFORCEMENT ACTION A. The Standard Set by the Supreme Court in Heckler v.

Chaney Controls the Disposition of Riverkeeper's Petition In Chaney, the Supreme Court held that agency denials of requests for en-forcement may not be judicially reviewable and set forth a procedure for making a reviewability determination. The Chaney analysis requires establishing whether, under 5 U.S.C. § 701(a)(2), the agency's decision on whether to take enforcement action "is committed to agency discretion by law." Chaney, 470 U.S. at 828. If so, "an agency's decision not to take enforcement action should be presumed immune from judicial review under § 701(a)(2)." Id. at 832. This presumption in turn is rebuttable only if "the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers." Id. at 833 (footnote omitted). Peti-tioner does not challenge this analysis. 3 B. The AEA Provides No Enforcement Guidelines but Leaves Enforcement Decisions to the NRC's Discretion Application of the Chaney analysis to the NRC statutory framework demon-strates that there is "no law to apply" that would permit judicial review of an NRC decision not to take enforcement action, because the AEA "is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion." See id. at 830. The AEA contains no provisions that address enforcement actions against reactor licensees or dictate when such actions are to be Petitioner had argued earlier that Chaney only announced a standard of review of agency action and did not set jurisdictional standards, and that appellate court juris-diction to review NRC denials of enforcement requests under 10 C.F.R. §2.206 was confirmed by the Supreme Court in FloridaPower & Light v. Lorion, 470 U.S. 729, 741 (1985). See, e.g., Memorandum in Opposition to Federal Respondents' Motion to Dismiss, dated June 16, 2003 at 7. Such an argument is clearly erroneous, see Lorion, 470 U.S. at 735 n.8, and inconsistent with the holdings of this Court, see, e.g., N.Y.

Pub. InterestResearch Group v. Whitman, 321 F.3d 316, 331 (2d Cir. 2003). Peti-tioner does not raise this argument in its Brief.

taken. Instead, the AEA bestows discretionary enforcement powers on the NRC using the broadest terms: "In the performance of its functions the Commission is authorized to ... make such studies and investigations, obtain such information, and hold such meetings or hearings as the Commission may deem necessary or properto assist it in exercising any authority provided in this [Act], or in the ad-ministration or enforcement of this [Act], or any regulations or orders issued there-under." 42 U.S.C. § 2201(c), emphasis added.4 The wide latitude given by the AEA to the NRC in the enforcement arena is consistent with the broad discretion the statute gives the agency to set its own char-ter in the discharge of its statutory duties. County ofRockland v. NRC, 709 F.2d 766, 776 (2d Cir.), cert. denied, 464 U.S. 993 (1983); Arnow v. NRC, 868 F.2d 223, 234 (7th Cir.), cert. denied, 493 U.S. 813 (1989); Mass. Pub. InterestRe-search Group, Inc. v. NRC, 852 F.2d 9, 15 (st Cir. 1988); Pub. Serv. Co. ofN. H.

v. NRC, 582 F.2d 77, 82 (' Cir.), cert. denied, 439 U.S. 1046 (1978); Siegel v.

AEC, 400 F.2d 778, 783 (D.C. Cir. 1968).5 4 The discretion vested by the AEA in the NRC is exhibited in other provisions of the statute that may be relevant to enforcement actions by the NRC, including: discre-tionary authority to issue new rules and regulations (42 U.S.C. § 2201(p)); discretion-ary power to revoke licenses (42 U.S.C. § 2236(a)); and discretionary authority to seek injunctive relief against actual or potential violators of the AEA or the NRC regulations (42 U.S.C. § 2280).

5 The NRC's regulations also evidence the agency's understanding of the discretion it has regarding enforcement actions. The regulations give the NRC discretion to decide The absence of statutory guidelines for the NRC to apply in deciding whether to take enforcement action and the wide discretion vested in the NRC by the controlling statute and the agency's regulations, foreclose the possibility ofju-dicial review of its decisions not to take enforcement action and bring such deci-sions, including the one which is the subject of the instant Petition, squarely within the Chaney non-reviewability rule.

C. Courts Have Uniformly Concluded that Denials of Section 2.206 Enforcement Requests Are Not Reviewable Since the Supreme Court issued the Chaney decision, three Circuit Courts have examined the reviewability of NRC decisions not to institute enforcement ac-tions requested under 10 C.F.R. §2.206. In each case, the Court applied the Chaney analysis, concluded that the AEA and the NRC regulations provide "no law to apply" to evaluate an NRC decision not to take enforcement action, and thus found that it lacked jurisdiction to review such a decision. Mass. Pub. InterestRe-whether to institute requested enforcement actions. 10 C.F.R. §2.206(b) states that, upon receipt of an enforcement request under §2.206, the Director of the NRC office with responsibility for the subject matter of the request shall "either institute the re-quested proceeding ... or shall advise the person who made the request in writing that no proceeding will be instituted in whole or in part, with respect to the request, and the reasons for the decision." Wide discretion is also vested in the NRC whether to institute an enforcement action on its own: 10 C.F.R. §2.202, which addresses the sua sponte institution of enforcement actions by the NRC, states that the Commission "may institute a proceeding to modify, suspend, or revoke a license or to take such other action as may be properby serving on the licensee or other person subject to the jurisdiction of the Commission" an order to that effect. 10 C.F.R. §2.202(a) (empha-sis added).

search Group, supra, 852 F.2d at 13, 14, 19; Arnow v. NRC, supra, 868 F.2d at 233, 236; Safe Energy Coalition ofMich. v. NRC, 866 F.2d 1473, 1477-78 (D.C.

Cir. 1989).

While this Court has not previously had the occasion to apply the Chaney analysis to an NRC denial of a 2.206 enforcement request, the Court has, in a number of other contexts, followed Chaney and found that agency decisions not to take enforcement action were unreviewable because the applicable statute afforded the agency discretion whether to act. See, e.g., N. Y. Pub. InterestResearch Group

v. Whitman, supra;Dina v. Attorney General, 793 F.2d 473,474-76 (2d Cir. 1986);

Doherty v. Meese, 808 F.2d 938, 943-44 (2d Cir. 1986); Marlow v. Dep 't ofEduc.,

820 F.2d 581, 582-83 (2d Cir. 1987), cert. denied, 484 U.S. 1044 (1988);

Christiansonv. Hauptman, 991 F.2d 59, 62-63 (2d Cir. 1993); Lunney v. United States, 319 F.3d 550, 558 (2d Cir. 2003). These cases provide ample authority for the Court to find that the NRC's decision not to take enforcement action in re-sponse to a 2.206 petition is unreviewable, given the broad enforcement discretion that the AEA vests in the NRC. Petitioner does not argue to the contrary.

II. THE "ABDICATION" LANGUAGE IN CHANEY DOES NOT APPLY HERE BECAUSE THERE IS NEITHER AN EX-PRESSLY ADOPTED AGENCY POLICY ABDICATING THE NRC'S STATUTORY RESPONSIBILITIES NOR AGENCY AC-TIONS THAT EVIDENCE SUCH AN ABDICATION A. The "Abdication" Language Is a Particular Application of the Chaney Analysis, not Relevant to the Instant Petition In a footnote, the Chaney Court suggested that there might be a situation warranting judicial review of an agency decision not to take enforcement action:

Nor do we have a situation [here] where it could justifiably be found that the agency has "consciously and expressly adopted a general pol-icy" that is so extreme as to amount to an abdication of its statutory responsibilities. See, e.g., Adams v. Richardson, 156 U.S. App. D.C.

267, 480 F.2d 1159 (1973) (en banc). Although we express no opinion on whether such decisions would be unreviewable under § 701 (a)(2),

we note that in those situations the statute conferring authority on the agency might indicate that such decisions were not "committed to agency discretion."

470 U.S. at 833 n.4. The situation alluded to in the footnote is one in which the underlying statute, expressly (as in Adams) or (perhaps) by strong implication, leaves no choice but for the agency to take enforcement action. 6 Thus, the inquiry into whether a denial of enforcement action is reviewable requires the Court to examine whether or not "the statute conferring authority on the agency ... indicate[s] that such decisions were not 'committed to agency dis-cretion."' Id. If Congress has specified that the agency action is not discretionary 6 We have found no case - nor has Petitioner identified one - in which a court has found "abdication" by an agency where there is no express statutory duty to act.

but statutorily required, agency inaction is reviewable. Here, the AEA contains no requirement (and Petitioner has pointed to none) that the NRC take any enforce-ment action. Thus the "abdication" branch of the Chaney analysis does not apply. 7 B. In any Case. There Was No NRC "Abdication"

1. There Is No Express NRC Policy that Reflects an Ab-dication of Its Statutory Responsibilities As discussed above, in order for a potential "abdication" exception to non-reviewability to apply, the agency would have to have "'consciously and expressly adopted a general policy' that is so extreme as to amount to an abdication of its statutory responsibilities." Chaney, 470 U.S. at 833 n.4 (citation omitted). Thus, in the Adams case cited in the Chaney footnote, the Secretary of Health, Education, and Welfare had declined to enforce Title VI of the Civil Rights Act of 1964. Ad-ams, 480 F.2d at 1161. The Secretary, in violation of a statutory directive that HEW "effectuate the provisions of... this title" (42 U.S.C. § 2000d-1), had failed to take appropriate action to terminate federal funding to segregated school sys-tems, a failure that the Adams court called "a dereliction of duty." Adams at 1163.

7 Petitioner claims that all cases that have found NRC denials of enforcement requests unreviewable have also "confirmed" that such denials are reviewable if they consti-tute "a complete abdication of the Agency's responsibility to protect public health and safety." Petitioner's Brief at 19. However, every case cited by Petitioner found the NRC denial to take enforcement action unreviewable. In no case did the court need to decide whether the result would have been different had there been evidence of NRC abdication of its statutory responsibilities. See Arnow v. NRC, 868 F.2d at 236; Safe Energy CoalitionofMich. v. NRC, 866 F.2d at 1477; Mass. Pub. InterestResearch Group, 852 F.2d at 19.

A4 The subject of Riverkeeper's Petition is the security of the Indian Point Units against terrorism, and specifically protection against airborne attacks. See, e.g., Petitioner's Brief at 7-16.' Nothing in the NRC efforts regulating the physical security of nuclear power reactors could be deemed an abdication of its statutory responsibilities. To the contrary, the NRC has aggressively acted to ensure a proper level of plant security in today's environment. See Section III infra.

8 Although in its 2.206 Petition Riverkeeper had raised issues and sought relief with re-spect to the offsite emergency response plans for Indian Point, in its Petition before this Court Riverkeeper limited the issues that it proposed to raise to those involving protection of the Indian Point Units against an airborne terrorist attack. See Amended Petition for Review, dated February 12, 2003 at 3-4. Likewise, Petitioner's Brief is exclusively addressed to the NRC's decision not to grant Riverkeeper's request to provide protection against the threat of an airborne terrorist attack. Therefore, emer-gency response issues are outside the scope of this Court's review.

Since emergency response issues are not at issue here, the amicus curiae brief filed by Connecticut's Attorney General Richard Blumenthal is largely irrelevant, since the arguments it raises relate almost exclusively to the adequacy of off-site emergency preparedness plans for the Indian Point Units. See "Brief of Amicus Curiae Richard Blumenthal Attorney General of Connecticut in Support of the Brief of Petitioner, Riverkeeper, Inc. with Appendix", dated June 23, 2003 ("Amicus Brief") at 3-4. (In addition, many of the emergency response claims made in the Amicus Brief (see id. at 5-7, 9-15) were not raised either in the 2.206 Petition or the Director's Decision. For all these reasons, the emergency response issues discussed in the Amicus Brief are not properly before this Court, for it is well established that an amicus cannot expand a proceeding or enlarge the issues therein. Bano v. Union Carbide Corp., 273 F.3d 120, 127 n.5 (2d Cir. 2001); Lamprecht v. FCC, 958 F.2d 382, 389 (D.C. Cir. 1992). It is also worth noting that the Connecticut Attorney General has filed a 10 C.F.R. § 2.206 petition that makes the same claims raised in the Amicus Brief. Entergy Nuclear Op-erations,Inc.; Receipt of RequestforAction Under 10 CFR 2.206, 68 Fed. Reg.

41,187 (July 10, 2003).

To the extent the Amicus Brief mentions terrorist threats, it makes essentially the same arguments as Petitioner and does not require a separate response. See Amicus Brief at 7-8.

Petitioner identifies one NRC "policy" that it alleges is an abdication of the agency's statutory responsibilities: a policy "not to consider potential terrorist at-tacks by airborne vehicles in licensing spent fuel storage facilities." Petitioner's Brief at 25. However, the NRC rule cited by Petitioner deals with physical protec-tion requirements for the licensing of facilities for the storage of spent fuel and high-level nuclear waste at independent spent fuel storage installations, monitored retrievable storage installations, and geological repository operations areas, not op-erating nuclear reactors such as the Indian Point Units, see FinalRule: Physical Protectionfor Spent Nuclear Fuel & High-Level Radioactive Waste, 63 Fed. Reg.

26,955 (May 15, 1998), JA 724. Security provisions for waste storage facilities need not be the same as for nuclear reactors; as the NRC noted: "the appropriate level of protection for spent fuel and high-level radioactive waste lies somewhere between industrial-grade security and the level that is required at operating reac-tors." Id., 63 Fed. Reg. at 26,956, JA 726.

Petitioner also asserts that the NRC has adopted a policy of not considering the possibility of airborne terrorist attacks "in plant-specific agency proceedings."

Petitioner's Brief at 25. Again, the Petitioner's argument is wrong. The NRC's decisions cited by Petitioner, PrivateFuel Storage, L.L. C. (Independent Fuel Stor-age Installation), CLI-02-25, 56 N.R.C. 340 (2002) and Duke Energy Corp.,

(McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2),

CLI-02-26, 56 N.R.C. 358 (2002), dealt with whether the National Environmental Policy Act (NEPA"), 42 U.S.C. § 1332, required an inquiry into the threat of ter-rorism at nuclear facilities as an environmental issue (as opposed to a safety issue under the AEA). The NRC, after analyzing the purposes of NEPA reviews, con-cluded that for legal, policy and practical reasons such an inquiry was neither re-quired by NEPA nor desirable. In declining to consider terrorism in its NEPA re-views, the NRC made it clear that its decision does not mean that we plan to rule out the possibility of a terrorist attack against NRC-regulated facilities. On the contrary, as we outlined above, the Commission and its staff have taken steps to strengthen security and are in the midst of an intense study of the effects of postulated terrorist attacks and of our relevant security and safeguards rules and policies.

These activities are rooted in the NRC's ongoing responsibilities under the AEA to protect public health and safety and the common defense and security. But we see no practical benefit in conducting that review, case-by-case, under the rubric of NEPA, nor any legal duty to do so.

PrivateFuel Storage, 56 N.R.C. at 34748 (emphasis added). Thus, in neither case did the NRC state a policy of not considering the possibility of airborne terrorist attacks against nuclear facilities.' To the contrary, since September 11, 2001 the NRC has given thoughtful consideration to the possibility of such attacks and is in the midst of studying what additional protective measures should be instituted. In a recent statement on nuclear power plant security submitted to the U.S. House of 9 See also, Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), CLI-02-24, 56 N.R.C. 335 (2002); Dominion Nuclear Conn.,

(Millstone Nuclear Power Station, Unit No. 3), CLI-02-27, 56 N.R.C. 367 (2002).

Representatives Subcommittee on Oversight and Investigations, then NRC Chair-man Richard Meserve testified:

Many questions have been raised regarding power reactor vulnerabilities to intentional malevolent use of commercial aircraft in suicidal attacks and the potential effects on public health and safety. Although the design of many nuclear power plants considered the probability of accidental aircraft crashes that may pose undue risk to public health and safety, only a few plants were specifically designed to withstand an accidental impact.

Nonetheless, it should be recognized that nuclear facilities are among the most hardened industrial facilities in the United States and are massive structures with thick exterior walls and interior barriers of reinforced concrete which are designed to withstand tornadoes (and missiles gener-ated by tornadoes), hurricanes, fires, floods, and earthquakes. In addi-tion, the defense-in-depth philosophy used in nuclear facility design means that plants have redundant and diverse systems in order to ensure safety. This robust design philosophy provides the operators a capability to respond to events of all types, including aircraft attack. It is equally important to note that operators are trained to respond to emergencies of all types.

The Commission has directed licensees to develop specific plans and strategies to respond to an event that results in damage to large areas of their plants from explosions or fire. In addition, mitigative measures re-quired by the previously mentioned Orders include assuring the Emer-gency Plan staffing and associated resources are available to respond to such an event.

The NRC is also continuing a major classified research and engineering effort, in conjunction with national laboratories, to evaluate the vulner-abilities and potential effects of a large commercial aircraft impacting a nuclear power plant. This effort includes consideration of reasonable ad-ditional preventive or mitigative measures to enhance protection of pub-lic health and safety in the event of a deliberate aircraft crash into a nu-clear power plant or spent fuel storage facility.

Statement dated March 18, 2003 Concerning Nuclear Security Submitted by the United States Nuclear Regulatory Commission to the Subcommittee on Oversight and Investigations of the Committee On Energy And Commerce, United States House Of Representatives, available online at http://www.nrc.gov/reading-rm/doc-collections/congress-docs/congress-testimonv/2003/ml030770853.pdf at 4, 6. As the testimony indicates, the agency is in the midst of a "major classified research and engineering effort" to evaluate the risks and potential effects of an aerial terrorist attack against a nuclear power plant.'0 There has been no abdication of the NRC's statutory responsibilities, and the potential exception to the non-reviewability of NRC denials to take enforcement action is inapplicable.

'° A recent summary of the steps that the NRC has taken to provide enhanced security at nuclear power plants and further protection against terrorist acts against them is con-tained in an August 29, 2003 letter from NRC Chairman Nils J. Diaz to the Secretary of Homeland Security Tom Ridge, available online at http://www.nrc.gov/reading-rm/doc-collections/news/2003/03-1 10.html. For similar, earlier summaries, see htM://www.nrc.gov/reading-rm/adams/web-based.html. Accession ## ML030780382 and ML022340804. As the summaries make clear, in addition to implementing its own initiatives, the NRC is actively working in coordination with other agencies charged with homeland protection (including the Federal Bureau of Investigation, Central Intelligence Agency and Department of Defense) to better define terrorist threats, assess their potential consequences, and develop measures to deal with the threats. See also Director's Decision, JA 31, 48.

Other agencies are taking steps that complement those of the NRC. For example, the U.S. Coast Guard has established security zones around nuclear power plants, includ-ing the Indian Point Units. See, e.g., Safety andSecurity Zones; New YorkMarine In-spection Zone & Captainof the Port Zone: FinalRule, 68 Fed. Reg. 2,886, 2887 (January 22, 2003). See also Director's Decision, JA 41-42.

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2. There Are No NRC Actions that Evidence an Abdica-tion by the Agency of Its Statutory Responsibilities The absence of an express NRC policy amounting to an abdication of the agency's statutory duties forecloses judicial review of its partial denial of Peti-tioner's enforcement request. Assuming, theoretically, that abdication could be implied from the agency's actions, the result would be the same. The NRC has taken no actions that evidence an abdication of its responsibility to protect safety.

a. The alleged "gap" in protection of Indian Point is a misreading of the NRC's Proposed Decision Petitioner's claim that the NRC has abdicated its responsibility for public safety hinges on its often-repeated assertion that the NRC has "acknowledged" that there is a "gap between the licensee's capability to protect against air attacks and the protection afforded by the government." Petitioner's Brief at 4, 7-8, 18-19, cit-ing Proposed Director's Decision Under 10 CFR 2.206 at 19 (JA 944) ("Proposed Decision"). " Petitioner's allegation is both misleading and incorrect. The cited The Proposed Decision was not the final action of the agency, but only a draft that was provided to Riverkeeper and commented upon by Petitioner, see JA 12, 26, 951.

(Indeed, in its comments, Petitioner alleged the existence of a "gap" in security, citing the same language in the Proposed Decision. JA 953-54.) The Proposed Decision was superseded by the final Director's Decision, JA 24, which constitutes the final agency action under review by this Court. JA 14, 10 C.F.R §§2.206(b) and (c)(l).

Even if Petitioner's interpretation of the Proposed Decision were correct (which it is not), "[a] final agency order is not rendered arbitrary and capricious simply because preliminary agency decisions contained errors. 'Indeed, the very purpose of issuing tentative decisions is to afford the [agency] an opportunity to correct any errors."'

NC. v. FERC, 112 F.3d 1175, 1192 (D.C. Cir. 1997) (quotingFreemanEng'gAs-statement in the Proposed Decision merely pointed out that, in defending against potential terrorist threats against a nuclear power plant, there is a division of re-sponsibilities between the licensee and the government:

As a result, in developing policy, the NRC must differentiate between the licensee's defensive obligation and that which must be undertaken by the government. Any gap between licensee capability and the assumed threat must be assumed by the government, and the government must prepare for this.

Id. The Proposed Decision thus did not "acknowledge" a "gap" in the protection of nuclear facilities against terrorism, but merely asserted that if there are elements of an assumed threat to which the licensee should not be expected to respond, re-sponse to them is the duty of the government.'2 The Director's Decision omits the language miscited by Petitioner and makes clear that no "gap" in protection exists:

NRC licensees must defend nuclear power plants against the [Design Basis Threat]. September 11 showed that the NRC and its licensees must reevaluate the scope of potential assaults of all types. However, there are limits to what can be expected from a private guard force, even assisted by local law enforcement. Even if it is determined that nuclear power socs., Inc. v. FCC, 103 F.3d 169, 179 (D.C. Cir. 1997)). The "gap" language does not appear in the Director's Decision.

12 There is recognition in Congress, as well as within the NRC and other federal gov-ernment agencies, that the government is responsible for providing protection against terrorist attacks beyond that which nuclear power plant licensees are required to sup-ply. For example, a House-Senate Conference Committee is currently considering legislation that would require the President to study various threat scenarios against nuclear reactors and determine which are the responsibility of the licensee and which should be defended against by the federal government. Comm. Discussion Draft, Nu-clear Matters-Price-Anderson Amendments, §51(b)(2), H.R.6, 108 t Cong. (Sept. 17, 2003), availableonline at http://energvcommerce.house.gov/108/pubs/nuclear.pdf plants should be defended against aircraft attack, the NRC cannot expect licensees to acquire and operate antiaircraft weaponry. Protection against this type of threat may be provided by other means within the Federal government.

JA 42. Accordingly, Petitioner's alleged "gap" finds no support in the record.

b. The claim that there is a high likelihood of an ae-rial attack against Indian Point is unsupported Petitioner alleges that the likelihood of an airborne attack against nuclear re-actors is "high." Petitioner's Brief at 17. Petitioner bases this claim on its misquo-tation of a statement in a National Research Council report, Making the Nation Safer. Role of Science and Technology in CounteringTerrorism at 50 (2002), JA 989.'3 The Report, however, does not mention Indian Point, nor does it intimate that the threat of an airborne attack against Indian Point is high.

In addition, the Report calls for none of the enforcement actions demanded by Petitioners. It does not call for the shutdown of operating reactors or the de-ployment of anti-aircraft protection, nor does it suggest that nuclear power plants 1 Petitioner refers to the National Research Council's report as "the conclusion of an-other branch of the same government." Petitioner's Brief at 19. The National Re-search Council is not "a branch of the government" but a private, nonprofit institution that provides scientific advice to the government. See htt:I/www.nationalacademies.or /nrc/. In addition, the Report does not say that the possibility of an aerial attack against a nuclear power plant is "high." The Report ac-tually states: "the potential for a September 1 -type surprise attack in the near term using U.S. assets such as airplanes appears to be high." JA 989.

are more vulnerable than other facilities.' 4 The Report only recommends that the NRC complete its analyses of reactor vulnerability to airborne attacks, and

[i]f the USNRC discovers significant vulnerabilities at its licensees' re-actors as a result of these analyses, it could mandate a number of physi-cal and operational changes to reduce vulnerabilities to and the conse-quences of attacks. Some possible changes are listed in the classified an-nex. This list is by no means exhaustive, and an effective remedy can be applied at a particular reactor only after a careful analysis of risks and benefits, taking into account the comparative risk reduction that could be achieved by devoting resources to hardening nuclear plants versus other large industrial facilities.

JA 999-1000. As the Report notes, the NRC is reviewing the threat environment and will take such further actions as warranted at the conclusion of its review. JA

48. Thus, there is no abdication of NRC's responsibilities. At most, Petitioner is 4 The Report compares the terrorist threats to nuclear power plants and other facilities:

The potential vulnerabilities of NPPs [nuclear power plants] to terrorist at-tack seem to have captured the imagination of the public and the media, perhaps because of a perception that a successful attack could harm large populations and have severe economic and environmental consequences.

There are, however, many other types of large industrial facilities that are potentially vulnerable to attack, for example, petroleum refineries, chemical plants, and oil and liquefied natural gas supertankers. These facilities do not have the robust construction and security features characteristic of NPPs, and many are located near highly populated urban areas. The committee has not performed a detailed examination of the vulnerabilities of these other types of industrial facilities and does not know how they compare to the vulnerabilities of NPPs. It is not clear whether the vulnerabilities of NPPs constitute a higher risk to society than the vulnerabilities of other industrial facilities.

JA 982-83. Because other industrial installations are exposed to comparable risks, the Report goes on to recommend that the allocation of resources to protect nuclear power plants must consider "both costs and achieved risk reductions, especially in view of the potential vulnerabilities of other types of industrial facilities ... ." JA 990, em-phasis in original.

quarreling with the agency's "analysis of risks and benefits, taking into account the comparative risk reduction that could be achieved... ." Id. at 999-1000.

III. THE DENIAL OF PETITIONER'S REQUEST WAS NOT ARBI-TRARY, CAPRICIOUS, AN ABUSE OF DISCRETION OR OTHERWISE NOT IN ACCORDANCE WITH LAW A. Standard of Review of Discretionary Agencv Action Were the Court to ignore Chaney and its progeny and undertake a substan-tive review of the merits of the Petition, it would have to conclude that the NRC's action was a rational exercise of the agency's regulatory powers. In reviewing the NRC's decision to take no enforcement action, the Court would apply the "arbi-trary and capricious" standard in section 10(e) of the Administrative Procedure Act, 5 U.S.C. §706(2)(A). Review under section 10(e) standard is "narrow" and "highly deferential." Rockland, 709 F.2d at 776 (citing Citizens to PreserveOver-ton Park, Inc. v. Volpe, 401 U.S. 402 (1971) and Ethyl Corp. v. EPA, 541 F.2d 1, 34 (D.C. Cir.) (en banc), cert. denied, 426 U.S. 941 (1976))."5 In reviewing an NRC refusal to take enforcement action, this Court has held that "[i]f the Commis-sion based its order on substantial relevant evidence, fairly ascertained, and if it has made no clear error ofjudgment, this court is not authorized to overturn that or-der." Rockland at 776. The review is "deferential because the Commission and its 5 In Rockland, a pre-Chaney case, the Court reviewed an NRC decision not to take en-forcement action under the "arbitrary and capricious" standard.

staff have special expertise and a wide range of experience in nuclear power plant operation and safety." Id.'6 Petitioner has failed to identify what aspects of the Director's Decision are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law ... ." as required under 5 U.S.C. § 706(2)(A). Not having made - let alone demonstrated - specific charges against the Director's Decision, Petitioner has failed to raise a reviewable issue, for a general allegation that agency action was arbitrary, capricious or contrary to law has no weight. See, e.g., East Oakland-FruivalePlanningCouncil v. Rumisfeld, 471 F.2d 524, 535 (9th Cir. 1972) (citing Schilling v. Rogers, 363 U.S. 666,676 (1960)). An administrative action will be set aside as arbitrary and capricious "only where there has been a clear error of judgment, Bowman Transportation [, Inc. v. Arkansas Best Freight System, Inc.],

419 U.S. [281] at 285 [(1974)), and [a court] may not substitute its judgment for that of the administrative agency. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416,28 L. Ed. 2d 136, 91 S. Ct. 814 (1971)." Hudson TransitLines, Inc.

16 The Court thus recognized, as have other courts, the very high degree ofjudicial def-erence to which NRC actions are entitled, given that that the regulatory scheme estab-lished in the AEA "is virtually unique in the degree to which broad responsibility is reposed in the administrative agency, free of close prescription in its charter as to how it shall proceed in achieving the statutory objectives." Siegel v. AEC, supra, 400 F.2d at 783 (citation omitted).

v. ICC, 765 F.2d 329, 336 (2d Cir. 1985). Petitioner has clearly not met its burden under these standards.

B. The NRC Actions with Respect to Security at Indian Point Are Not Arbitrary Capricious or an Abuse of Discretion

1. The NRC Has Aggressively Carried Out Its Mandate to Protect the Security of Nuclear Power Plants The NRC has had in place since 1973 regulations requiring that nuclear power plants be protected against malevolent acts by outsiders. Pursuant to 10 C.F.R. §73.55, every nuclear power plant licensee must have in place a security organization and a variety of plant physical protection systems capable of defend-ing against attacks from external groups. See JA 29-30.

A Safeguards Contingency Plan must be established by nuclear plants in ac-cordance with 10 C.F.R. Part 73, Appendix C, identifying a predetermined set of threat response actions, the means for their implementation, and the personnel re-sponsible for responding to the threats.' 7 Threats at nuclear plants are to be coun-tered by an armed tactical force, permanently stationed at the plant, whose mission is to quickly assess the threat and interpose itself between the threat and specific key plant areas, with the assistance, if required, of outside authorities. (Nuclear plants are required to establish a working liaison with local law enforcement au-7 The contents of the Safeguards Contingency Plan are confidential information pro-tected from public disclosure. 10 C.F.R. §73.21(b)(1)(viii). Likewise, the security measures at particular facilities, such as Indian Point, may not be publicly disclosed.

thorities that they can summon for assistance in the event of an attack.) The capa-bility of security forces and systems to defend against threats is tested in live exer-cises using mock attack forces and monitored by the NRC. See NRC Inspection Manual, Inspection Procedure 81 110, Operational Safeguards Response Evaluation

("OSRE") (July 8, 2000), JA 613. In short, the NRC's regulations and inspection and enforcement activities in the area of security are comprehensive and continual, demonstrating that the NRC has not "abdicated" its statutory responsibilities.

Beyond these ongoing requirements, the NRC took action following the Sep-tember 11, 2001 attacks to further bolster security at nuclear power plants. Shortly after the attacks, it advised all nuclear plants to impose a heightened state of alert, and required them to augment security forces and patrols, increase coordination with law enforcement and military authorities, implement additional site access limitations for personnel and vehicles, and take other actions to strengthen each plant's capability to respond to terrorist attacks."

In February 2002, the NRC imposed further security requirements on all nu-clear power plants, further increasing again the level of protection that licensees are required to provide against terrorist acts. Order Modifying Licenses to All Op-eratingPowerReactorLicensees, 67 Fed. Reg. 9,792 (Mar. 4, 2002).

s See Director's Decision at 8-9, JA 31-32; see also, NRC Press Release No.01-112 (September 21, 2001), JA 112-14.

The NRC issued additional security directives in April 2003. Order[s]

Modifying Licenses ofAll OperatingReactorLicensees, 68 Fed. Reg. 24,510, 24,514, and 24,517 (May 7, 2003). The new changes include a re-definition of the threat against which nuclear power plants must be protected. Moreover, the NRC has committed to continue reviewing security requirements for nuclear power plants and to modify them as more relevant information becomes available.' 9

'9 The NRC Chairman stated recently as follows:

At each step over the past 17 months, we have done what needed to be done to secure these facilities, but as we learn more, I am confident that the NRC, the Department of Homeland Security and other agencies will do whatever it takes to protect the people of this country.

Realistic Conservatism, Remarks of Chairman Nils J. Diaz, United States Nuclear Regulatory Commission, before the NRC Regulatory Information Conference, Wash-ington, D.C. April 16, 2003, NRC News Rel. No. S-03-009, available online at http://www.nrc.gov/reading-rm/doc-collections/commission/speeches/2003/s 009.pdf at 6.

At the same conference, NRC Commissioner McGaffigan emphasized that the Com-mission's review of security requirements for nuclear power plants will continue in the future:

We intend to continue to work with the Department of Homeland Security and other Federal agencies, as well as State and local law enforcement and emergency planning officials, to insure an overall integrated approach to the security of these critical facilities. You saw the early fruits of that effort on March 17 as part of Operation Liberty Shield, in which DHS took the lead in talking to Governors about possible augmentation of security at power reactor facilities. And we will continue to try to identify possible cost-effective mitigating strategies against beyond-DBT [design basis threat] threats.

Remarks by NRC Commissioner Edward McGaffigan, Jr. before the NRC Regulatory Information Conference, Washington, D.C. April 17,2003, NRC News Rel. No. S-03-012, available online at http://www.nrc.gov/reading-rm/doc-collections/commission/speeches/2003/s-03-012.pdf at 4.

The NRC has been actively involved in overseeing specific security provi-sions at the Indian Point facility and ensuring their adequacy. The Indian Point Units have in place formal, documented Physical Security Protection Programs and Safeguards Contingency Plans. These documents have been reviewed and ap-proved by the NRC and have been upgraded to meet post-September 11, 2001 re-quirements. The existence and implementation of these plans and their approval by the NRC assure that appropriate levels of security exist at Indian Point, in ac-cordance with current regulatory requirements. In addition to documentary com-pliance, the NRC has repeatedly confirmed through inspections and exercises that the security provisions at Indian Point adequately implement the Indian Point Units' security plans and comply with NRC requirements.2 Thus, far from abdicating its statutory obligation to protect public safety, the NRC has continuously upgraded and enforced its regulations regarding nuclear re-The NRC recently witnessed a "force-on-force" exercise at Indian Point that con-firmed the capability of the licensee's security organization to repel an armed attack.

Through its review of the exercise and other security enhancements, the NRC verified that implementation of NRC security requirements at Indian Point is satisfactory. See letter from NRC Chairman Nils J. Diaz to the Honorable Charles Schumer dated Au-gust 7, 2003, availableonline at http://www.nrc.gov/reading-rm/adams/web-based.html. Accession # ML032190686. The NRC Chairman indicated: "We re-viewed many of the safety and security enhancements made to the plant and its pro-grams since September 11, 2001. The range of enhancements reflects the NRC's 'de-fense-in-depth' safety philosophy, in which requirements for plant safety features and mitigation strategies, security measures, and emergency preparedness are addressed in an integrated manner. Our observations and ongoing oversight support the NRC's judgment that public health and safety continues to be adequately protected at Indian Point in each of these areas." Id.

-s actor security, nationwide and at the Indian Point facility. In light of those efforts, the Commission's decision to deny part of Petitioner's Section 2.206 request was neither arbitrary nor capricious. The record shows that the agency based its deci-sion on the consideration of numerous factors relevant to its goal to protect the public health and safety, and was not a "clear error ofjudgment." See Citizens to PreserveOverton Park,401 U.S. at 416 (in reviewing an agency's action, "the court must consider whether the decision was based on a consideration of the rele-vant factors and whether there has been a clear error ofjudgment").

In reality, Petitioner is not alleging that the NRC has failed to give attention to security issues at Indian Point, but that the steps taken by the agency to ensure security are not those that Petitioner would take. Petitioner would have the NRC require institution of a "no-fly zone" around the Indian Point site, deployment of "air defenses" to protect the facility, and conversion to dry-cask storage of the spent fuel storage systems for the Indian Point Units. Petitioner's Brief at 4-5, 6-7,

25. Petitioner's demand that the NRC implement Petitioner's choice of measures to enhance plant security may not be raised with the courts. Block v. SEC, 50 F.3d 1078, 1084 (D.C. Cir. 1995). As the Supreme Court noted, "[t]he danger that agencies may not carry out their delegated powers with sufficient vigor does not necessarily lead to the conclusion that courts are the most appropriate body to po-lice this aspect of their performance." Chaney, 470 U.S. at 834.

2. The NRC Properly Addressed Petitioner's Concerns Petitioner's challenge to the Commission's decision is based on four prem-ises: (1) an airborne terrorist attack against Indian Point is highly probable;' (2) such an attack would cause significant damage to the Indian Point facilities,= caus-ing "a massive release of radioactive materials into the surrounding towns and counties, quite possibly reaching into and contaminating New York City" (Peti-21 See Section II, supra, for a discussion of the claim that an airborne attack against In-dian Point is highly probable.

2 Petitioner cites a study, Evaluation ofAircraft-Crash-HazardsAnalyses for Nuclear PowerPlants, NUREG/CR-2859 (June 1982) ("ANL Study") for the proposition that an airliner crashing into a reactor containment building could penetrate the contain-ment walls and cause a violent explosion due to jet fuel ignition. Petitioner's Brief at 9-10. However, the ANL Study only estimated the speed at which an airliner would have to impact the outer containment wall of a boiling water reactor ("BWR") in or-der to penetrate it, and discussed the potential for fuel explosions in the context of fuel vapor being trapped between the inner and outer containment of a BWR after the air-craft had penetrated the outer containment. The Indian Point Units are pressurized water reactors ("PWRs") with a very thick reinforced concrete containment wall and no inner containment wall. Thus, the sequence of events described in the ANL Study cannot happen at Indian Point. See JA 470-72.

Likewise, in support of the alleged vulnerability of a spent fuel pool to impact by a crashing aircraft, Petitioner cites an NRC Report, Technical Study of Spent Fuel Pool Accident Risk at Decommissioning NuclearPowerPlants (Oct. 2000) for the proposi-tion that such an impact would cause catastrophic damage to the pools and result in a spent fuel rod assembly fire. Petitioner's Brief at 10-11. However, the cited Techni-cal Study evaluates the risks from attacks on spent fuel pools at plants undergoingde-commissioningand are not applicable to the operating Indian Point Units because the spent fuel pool cooling systems of facilities in decommissioning do not have the ca-pabilities of those at operating plants. JA 131. The Technical Study concludes that, even for facilities in decommissioning, the risks (including a fuel fire) posed by a po-tential aircraft impact on a spent fuel pool are low and within NRC criteria. JA 195, 197. In reality, the design of the spent fuel pools minimizes the likelihood that a ter-rorist attack would result in offsite radiation releases. JA 43-44.

tow > b tioner's Brief at 14); (3) such a release would have a catastrophic effect on the people, environment, and economy surrounding Indian Point (Id. at 14-15)2; and (4) the only way to prevent such effects would be to install an air defense system around Indian Point, establish a no-fly-zone around the facility, and change its means of storing spent nuclear fuel. The same arguments were made in the 2.206 Petition and were carefully considered, although not adopted by the agency.

With respect to the request that the Indian Point licensee be required to pro-vide anti-aircraft protection, the NRC found that "there are limits to what can be expected from a private guard force, even assisted by local law enforcement. Even if it is determined that nuclear power plants should be defended against aircraft at-tack, the NRC cannot expect licensees to acquire and operate antiaircraft weap-onry. Protection against this type of threat may be provided by other means within 23 For its dire predictions of deaths, injuries and property damage, Petitioner cites a 1982 report by Sandia National Laboratories, Calculationof ReactorAccident Conse-quences ("CRAC-2 Report"). Petitioner's Brief at 14-15. However, as the NRC noted, the "reactor siting studies in the CRAC-2 Report were performed as part of re-search on the sensitivity of various plant siting parameters. The studies used generic postulated releases of radioactivity from a spectrum of severe (core melt) accidents, independent of the probabilities of the event occurring or the impact of mitigation mechanisms. The studies were never intended to be realistic assessments of accident consequences. The estimated deaths and injuries resulted from assuming the most ad-verse condition for each parameter in the analytical code. In the cited studies, the number of resulting deaths and injuries also reflected the assumption that no protec-tive actions were taken for the first 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />. The studies did not, and were never in-tended to, reflect reality." Director's Decision at 14, JA 37.

the Federal government." Director's Decision, JA 42. Petitioner has provided no facts or arguments to controvert this finding.

The Director denied the Petitioners' request to mandate the establishment and defense of a no-fly zone, citing the increased efforts by the U.S. intelligence community and various Federal law enforcement agencies to identify potential ter-rorists and prevent potential attacks before they occur. "For example, the FAA and Department of Defense have acted more than once to protect airspace above nu-clear power plants from what were thought to be credible threats against certain specific sites." d.24 In addition, the Director's Decision noted that the NRC has directed nuclear power plant licensees to address the need to maintain or restore cooling to the reactor core, the containment, and the spent fuel pool in the event those portions of the plants are damaged. Id., JA 32, 46.

In denying Petitioner's request that the Indian Point licensee be required to immediately convert the current spent fuel storage system from spent fuel pools

("SFPs") to a "dry-cask storage system in a bunkered structure," the Director's De-cision found that the design features of the spent fuel pools minimize the likelihood that a terrorist attack on the pools would result in offsite radiation releases, thus 24 While not disputing this finding, Petitioner posits the potential use by terrorists of small private aircraft and questions security at the small airports from which they fly.

Petitioner's Brief at 20-22. No support is given for these speculations or for the vul-nerability of Indian Point to such a threat.

- e. %,

"spent fuel can be safely stored at the [Indian Point] reactor site in the current sys-tem of SFPs."2 Again, Petitioner has provided no facts that dispute this finding.

In the Director's Decision, the NRC articulated "a rational connection be-tween the facts found and the choice made," Motor Vehicle Mfrs. Ass 'n v. State FarmMutual Ins. Agency, 463 U.S. 29, 43 (1983) (citation omitted), i.e., that the measures sought by Petitioner are not necessary to protect the Indian Point facility.

The NRC's determination of the adequacy of the measures it and other agencies have taken to protect Indian Point from terrorism is entitled to deference by this Court. Since the NRC's decision not to take all the enforcement actions sought by Petitioner was not "irrational" and there is substantial evidence in the record to support it, the decision must be upheld. Rockland, 709 F.2d at 776-77.

CONCLUSION The Supreme Court has listed several policy reasons why agency decisions not to take enforcement action are unreviewable. Chaney, 470 U.S. at 831-32.

2 Director's Decision at 20, JA 43. The Director's Decision notes that "[a]lthough the spent fuel storage buildings at [Indian Point] are not as hardened as the reactor con-tainment structures, the SFPs themselves are robust, and relatively small structures, that are partially below ground level. The spent fuel is stored in racks resting on the floor of the pools and is covered by more than 20 feet of water. The pools are de-signed to prevent a rapid loss of water with the structure intact, and the pool water level and cooling system are monitored and alarmed in the control rooms. Thus, the response time for events involving the SFP is significantly longer than for other event scenarios. It is also easier to add water to the SFP from various sources because it is an open pool. The robust design and small size of the pools minimize the likelihood that a terrorist attack would cause damage of a magnitude sufficient to result in an offsite release of radioactive material." Id. at 20-21, JA 43-44.

These reasons, and the holding in Chaney, fully apply to NRC decisions not to in-stitute enforcement proceedings and dictate that such decisions are not reviewable.

Moreover, the NRC has devoted a substantial portion of its attention to secu-rity issues and has taken repeated and significant actions to enhance the protection afforded to nuclear power plants. There has been no abdication of NRC's statutory duties warranting judicial review.

It is also clear that the NRC's decision to partially deny Riverkeeper's en-forcement request was not arbitrary or capricious nor an abuse of the agency's con-siderable discretion on matters of public safety.

For the above reasons, the Court should dismiss the Petition.

Respectfully submitted, Of Counsel: Jay E. Silberg John M. Fulton Matias F. Travieso-Diaz Assistant General Counsel Blake J. Nelson Entergy Nuclear Operations, Inc. SHAW PITTMAN LLP 440 Hamilton Avenue 2300 N Street, N.W.

White Plains, NY 10601 Washington, D.C. 20037 (914) 272-3502 (202) 663-8000 Counsel for Utility Respondents Dated: September 26, 2003

..- v-CERTIFICATE OF COMPLIANCE Pursuant to Rule 32(a)(7)(C), Federal Rules of Appellate Procedure, I hereby certify that the foregoing "Brief of Respondents Entergy Nuclear Indian Point 2, LLC, Entergy Nuclear Indian Point 3, LLC and Entergy Nuclear Opera-tions, Inc." complies with the Rule in that it contains 9,229 words, including head-ings, footnotes, this certificate and the certificate of service, but excluding the title page, table of contents, and table of authorities. In making this certification, I have relied on the word count function of Microsoft Word, the word-processing system used to prepare this brief.

Jay E. Silber CERTIFICATE OF SERVICE I hereby certify that on September 26, 2003, copies of the foregoing "Brief of Respondents Entergy Nuclear Indian Point 2, LLC, Entergy Nuclear Indian Point 3, LLC and Entergy Nuclear Operations, Inc." were served as follows:

By Federal Express:

Frank Scardilli Senior Staff Counsel United States Court of Appeals for the Second Circuit United States Court House 40 Foley Square New York, NY 10007 (Original and nine copies)

By First Class Mail. postage prepaid:

John Cordes, Solicitor U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop 0-1 5D21 Washington, D.C. 20555 Jared K. Heck, Esq.

U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop 0-1 5D21 Washington, D.C. 20555 Karl Coplan Pace Environmental Litigation Clinic, Inc.

78 North Broadway White Plains, NY 10603 tv -

Richard Blumenthal Attorney General State of Connecticut 55 Elm Street, P.O. Box 120 Hartford, CT 06141-0120 John Ashcroft United States Attorney General United States Department of Justice 950 Pennsylvania Avenue, N.W.

Washington, D.C. 20530-0001 Jay E.

Document#: 1352011 v.1