ML14056A397

from Robert Brodsky to Nrc/Ogc Brodsky Remand Brief Full

ML14056A397
Person / Time
Site:	Indian Point
Issue date:	02/14/2014
From:	Brodsky R, Nelson R Columbia Law School, US Federal Judiciary, District Court for the Southern District of New York
To:	NRC/OGC
Robert Rader
References
09-CIV-10594(LAP)
Download: ML14056A397 (41)

Text

In the United States District Court for the Southern District of New York RICHARD L. BRODSKY, NEW YORK STATE ASSEMBLYMAN, FROM THE 92ND ASSEMBLY DISTRICT IN HIS OFFICIAL AND INDIVIDUAL CAPACITIES, WESTCHESTER CITIZENS AWARENESS NETWORK (WESTCAN), BRIEF ON REMAND ROCKLAND COUNTY CONSERVATION ASSOCIATION, INC. (RCCA), PUBLIC HEALTH AND SUSTAINABLE ENERGY (PHASE), AND SIERRA CLUB - ATLANTIC CHAPTER (SIERRA CLUB), Case No. 09-CIV-10594(LAP)

Petitioners,

-v.

U.S. NUCLEAR REGULATORY COMMISSION, Respondent, and ENTERGY NUCLEAR OPERATIONS, INC.,

Intervenor.

February 14, 2014

TABLE OF CONTENTS TABLE OF CONTENTS ........................................................................................................ I TABLE OF AUTHORITIES ................................................................................................. II PROCEDURAL HISTORY....................................................................................................1 PRELIMINARY STATEMENT ............................................................................................3 ARGUMENT ..........................................................................................................................5 I. The NRCs Failure to Consider the Impacts of Terrorism Under NEPA Was Arbitrary and Capricious.............................................................................................5 II. The NRCs Assessment of the Environmental Impacts Based on the Incomplete Record Submitted to the Court Was Arbitrary and Capricious. ...............................11 III. The NRCs Refusal to Provide the Court with the Complete Record Was Arbitrary and Capricious. .........................................................................................................13 IV. The NRCs Refusal to Consider Issues that It Deems Safety-Related Is Arbitrary and Capricious. .........................................................................................................17 V. The NRCs Denial of Petitioners Request for a Hearing Was Arbitrary and Capricious. ................................................................................................................18 VI. Petitioners Seek Court Permission to File Supplemental Fact and Argument. .........20 CONCLUSION .....................................................................................................................20 i

TABLE OF AUTHORITIES 72 Fed. Reg. 55,2544 (Sept. 28, 2007) .................................................................................. 1 Alaska Excursion Cruises v. United States, 603 F. Supp. 541 (D.D.C. 1984) ...................................................................................... 14 Alaska Wilderness Recreation & Tourism Ass'n, 67 F.3d 723 (9th Cir. 1995) ............................................................................................... 5 Am. Wild Horse Pres. Campaign v. Salazar, 859 F. Supp. 2d 33 (D.D.C. 2012) ............................................................................. 14, 15 Andrus v. Sierra Club, 442 U.S. 347 (1979) ......................................................................................................... 19 Asarco, Inc. v. EPA, 616 F.2d 1153 (9th Cir. 1980) ......................................................................................... 15 Brodsky v. NRC ("Brodsky I,")

578 F.3d 175 (2d Cir. 2009)............................................................................................... 1 Brodsky v. NRC, ("Brodsky II"),

783 F. Supp. 2d 448 (S.D.N.Y. 2011)................................................................................ 2 Brodsky v. NRC, ("Brodsky III"),

704 F.3d 113 (2d Cir. 2013)............................................................................... 2, 3, 11, 12 Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971), abrogated ....................................................................................... 13 ii

County of San Miguel v. Kempthorne, 587 F. Supp. 2d 64 (D.D.C. 2008) ............................................................................. 13, 14 Department of Transportation v. Public Citizen, 541 U.S. 752 (2004) ........................................................................................................... 9 Envtl. Def. Fund v. Blum, 458 F. Supp. 650 (D.D.C. 1978) ...................................................................................... 14 Hanly v. Kleindlenst, 471 F.2d 823 (2d Cir. 1972)............................................................................................. 17 Ka Makani'O Kohala Ohana, Inc. v. Water Supply, 295 F.3d 955 (9th Cir. 2002) ..................................................................................... 5, 6, 7 Kleppe v. Sierra Club, 427 U.S. 390 (1976) ......................................................................................................... 11 Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719 (3d Cir. 1989)....................................................................................... 17, 18 Metro. Edison Co. v. People Against Nuclear Energy, 460 U.S. 766 (1983) ......................................................................................................... 10 Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29 (1983) ..................................................................................................... 13, 19 Nat'l Audobon Soc'y v. Hoffman, 132 F.3d 7 (2d Cir. 1997)........................................................................................... 11, 12 New Jersey Department of Environmental Protection v. NRC, 561 F.3d 132 (3d Cir. 2009).......................................................................................... 8, 9 iii

Public Citizen v. Heckler, 653 F. Supp. 1229 (D.D.C. 1986) .................................................................................... 14 San Luis Obispo Mothers for Peace v. NRC ("San Luis Obispo"),,

449 F.3d 1016 (9th Cir. 2006) .................................................................................. passim Scientists' Inst. for Pub. Info., Inc. v. AEC, 481 F.2d 1079 (D.C. Cir. 1973) ....................................................................................... 17 Silvia v. Lynn, 482 F.2d 1282 (1st Cir. 1973) .......................................................................................... 13 Vermont Yankee, 435 U.S. at 558, 98 S.Ct. at 1219 ............................................................................... 17, 18 Statutes 42 U.S.C. § 2011 .................................................................................................................... 3 42 U.S.C. § 4321 et seq.,........................................................................................................ 3 42 U.S.C. § 4332 .................................................................................................................. 17 42 U.S.C. § 4332(C) ............................................................................................................ 17 5 U.S.C. § 551 et seq.............................................................................................................. 1 Regulations 10 C.F.R. § 51.33 ................................................................................................................... 2 10 C.F.R. Part 50, Appendix R .............................................................................................. 1 40 C.F.R. § 1506.6(c)........................................................................................................... 18 Id. § 1506.6(c)(1) ................................................................................................................. 19 iv

PROCEDURAL HISTORY On September 28, 2007, the United States Nuclear Regulatory Commissions (NRC or Respondent) granted to Entergythe owner, licensee, and operator of Indian Point Nuclear Generating Unit Number 3 (IP) in Buchanan, New Yorkan exemption to 10 C.F.R. Part 50, Appendix R, which requires that the physical insulation of electrical cables controlling emergency shutdown of the nuclear reactors last one hour in a fire. See 72 Fed. Reg. 55,254, 55,254 (Sept. 28, 2007).1 The exemption permitted the physical insulation to only last 24 minutes in a fire and made other changes to fire suppression protocols. See id. The NRC gave no opportunity for public comment or other form of public participation. This was the first time the public was notified of the existence of an exemption request or any NRC consideration of it. Petitioners timely brought an administrative petition challenging the decision and seeking a public hearing. The NRC denied the petition.

Petitioners filed suit in the United States Court of Appeals for the Second Circuit seeking review of the Indian Point exemption as a violation of the Hobbes Act. The Second Circuit declined Hobbes Act jurisdiction but acknowledged that Petitioners are free to seek review in the district court of the NRC's actions pursuant to the [Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq.]. Brodsky v. NRC (Brodsky I), 578 F.3d 175, 184 n.6 (2d Cir. 2009) (citation omitted).

Petitioners then sought review of the exemption before this Court, which found in favor of the NRC and dismissed Petitioner's claims. See Brodsky v. NRC (Brodsky II),

1 Petitioners are unable to locate unified page numbers on the original Certified Record. Therefore, Petitioners cite directly to the individual documents contained therein. Petitioners cite to the Supplemental Certified Record because we located such unified page numbers.

1

783 F. Supp. 2d 448, 465-66 (S.D.N.Y. 2011). Petitioners appealed this decision to the Second Circuit. The Second Circuit dismissed in part and vacated in part, remanding to this Court with instructions for it in turn to remand to the NRC so that the agency may (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. Brodsky v. NRC (Brodsky III), 704 F.3d 113, 115 (2d Cir. 2013).

Upon remand, the NRC chose to take such other action as permitted by Brodsky III. On April 3, 2013, it published a Federal Register notice seeking public comment, pursuant to 10 C.F.R. § 51.33, on a draft Environmental Assessment (EA) and Finding of No Significant Impact (FONSI) for the identical exemption previously issued. See Certified Supplemental Record (CSR) at 15. Petitioners and many other concerned parties filed public comments and sought a public hearing pursuant to the notice. The NRC accepted these comments and issued responses to them. All of these documents are contained in the CSR filed with this Court.

On Tuesday, August 27, 2013, the NRC issued a notice in the Federal Register, announcing its ACTION: Environmental assessment and finding of no significant impact; issuance. See id. at 17. This newly issued exemption was identical to the 2007 exemption.

In this notice, the NRC denied Petitioners request for a public hearing, refused to consider the relevant documents that Petitioners discussed in their comments, and dismissed other legal and factual assertions made by Petitioners. Notably, the NRC denied Petitioners request that it consider terrorism on the grounds that issues relating to terrorism and other 2

low-probability, high-consequence events are beyond the scope of the EA and FONSI. Id.

at 19.

PRELIMINARY STATEMENT Petitioners appear before this Court pursuant to the instructions of the Second Circuit that the NRC explain why allowing public input into the exemption request was inappropriate or impracticable or take such other action as it may deem appropriate to resolve this issue. Brodsky III, 704 F.3d at 115. That review requires this Court to determine whether the NRC demonstrate[d] that it has in fact taken the kind of hard look at environmental consequences that it would have taken if the public were allowed to comment on the exemption request. Id. at 123 (citation omitted).

Petitioners assert herein that the August 27, 2013 issuance violated the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., and the Second Circuits language and law contained in Brodsky III. Petitioners also maintain that the issuance similarly violated the Atomic Energy Act (AEA), 42 U.S.C. § 2011, and the APA and that we are entitled to a new review, based on the new record, of the new issuance noticed on August 27, 2013. Petitioners seek a decision of this Court to that effect, an order reversing the issuance, and a remand to the NRC to take corrective action.

Petitioners are mindful of the previous decisions of the Second Circuit and this Court. Every remedy we seek is consistent with those decisions. We are not re-litigating those parts of Brodsky III which were unfavorable to our positions. Nevertheless, we respectfully point out that as a consequence of the NRC's decision to take such other action, the NRC did two things not previously reviewed by any court: 1) it created a new record upon which its exemption decision was based and 2) based on that record, it 3

issued an exemption to its fire safety regulations. Both are reviewable by this Court. To hold otherwise would be to insulate the NRC from judicial review of its most recent decision. We are entitled to make our full case regarding the exemption issued on August 27, 2013 before this Court. The only judicial alternative would have been the filing of a new complaint and new action challenging the August 27 issuance during the pendency of these remand proceedings. That would neither be fair nor an efficient use of judicial resources.

We respectfully bring an additional matter to the attention of the Court. The NRC's use of exemptions has been intentionally shrouded in secrecy for decades. The only reason Petitioners were aware of the Indian Point exemption was the publication of the EA and FONSI in August 2007 after the exemption had been issued without public participation.

Apparently, even that truncated and inadequate public process is too much for the NRC. In 2013, the NRC functionally eliminated public knowledge of exemptions by promulgating a new regulation categorically exclud[ing] exemptions from the requirement of NEPA.

CSR at 15. As a result of this action, the public will no longer even know when such an exemption is issued unless the NRC, in its sole discretion, chooses to make the exemption public. One unintended result of this litigation is, in the felicitous phrase chosen by the NRC, that exemptions no longer require preparation of an EA/FONSI, the NRC retains discretion to prepare an EA and FONSI, including an opportunity for public comment, where special circumstances exist. CSR at 16 (citation omitted). Whether such a veil of secrecy is consistent with NEPA may not be specifically at issue here, but it ought not to pass without comment.

4

ARGUMENT I. The NRCs Failure to Consider the Impacts of Terrorism Under NEPA Was Arbitrary and Capricious.

NEPA requires the NRC to consider the impact of terrorism as it decided on the issuance of the August 27, 2013 exemption. The NRC willfully refused to do so, erroneously declaring that terrorism is beyond the scope of the EA and FONSI and that NEPA 'imposes no legal duty on the NRC to consider intentional malevolent acts because those acts are too far removed from the natural or expected consequences of agency action. CSR at 19.

The NRC's decision renders the exemption in violation of federal laws including NEPA, the APA, and the AEA. The NRC's legal conclusions and refusal to consider terrorism are undisputed in the record and are clearly unreasonable.2 The NRC rests its refusal to consider terrorism on its unsubstantiated belief that terrorism is a low-probability event. See CSR at 19 (the probability of such an attack is believed to be low. (emphasis added)). First, an assertion of belief is grossly insufficient as a matter of law and, without any supporting evidence or documentation, cannot be the legal basis for agency action. The New York-New Jersey region has already suffered enormously from what the NRC believes to be a low-probability event. The planes that struck the World Trade Center flew over Indian Point.

2 Because this decision is legal, not factual, the deference often given to NRC decisions is inappropriate, and the correct legal standard against which to judge the NRC's action is whether or not it is reasonable. See Alaska Wilderness Recreation & Tourism Ass'n, 67 F.3d 723, 727 (9th Cir. 1995) (reviewing predominately legal issue for reasonableness because "it makes sense to distinguish the strong level of deference we accord an agency in deciding factual or technical matters from that to be accorded in disputes involving predominately legal questions"); Ka MakaniO Kohala Ohana, Inc. v. Water Supply, 295 F.3d 955, 959 n.3 (9th Cir. 2002) (Because this case involved primarily legal issues . . . based on undisputed historical facts, we conclude that the reasonableness standard should apply to this case. (citations omitted)).

5

Second, the NRC's ongoing words and actions contradict its belief. The NRC repeatedly acknowledges the likelihood and serious consequences of terrorism on facility operations, the environment, and the public health and safety.3 The NRC cannot have it both ways. The NRC may not ignore terrorism when making a crucial fire safety decision at Indian Point while simultaneously admitting that terrorism can affect the likelihood of accidents, conducting studies concerning terrorism, and attempting to provide reasonable assurance that the public is protected.

This inconsistency has been noted by the Ninth Circuit: If the risk of a terrorist attack is not insignificant, then NEPA obligates the NRC to take a hard look at the environmental consequences of that risk. San Luis Obispo Mothers for Peace v. NRC (San Luis Obispo), 449 F.3d 1016, 1032 (9th Cir. 2006).

We find it difficult to reconcile the [NRCs] conclusion that, as a matter of law, the possibility of a terrorist attack on a nuclear facility is remote and speculative, with its stated efforts to undertake a top to bottom security review against this same threat. Under the NRC's own formulation of the rule of reasonableness, it is required to make determinations that are consistent with its policy statements and procedures. Here, it appears as though the NRC is attempting, as a matter of policy, to insist on its preparedness and the seriousness with which it is responding to the post-September 11th terrorist threat, while concluding, as a matter of law, that all terrorist threats are remote and highly speculative for NEPA purposes.

Id. at 1031.

3 The existence of terrorist threats may affect the likelihood of a reactor accident, although it is not currently possible to estimate the change in probabilities with great confidence. Emergency Preparedness in Response to Terrorism, NRC, http://www.nrc.gov/about-nrc/emerg-preparedness/respond-to-emerg/response-terrorism.html. NRC continues to conduct studies to determine the vulnerability of nuclear power plants and the adequacy of licensee programs to protect public health and safety in the post-9/11 threat environment.

Whether the initiating event is terrorist based or a nuclear accident, the EP planning basis provides reasonable assurance that the public health and safety will be protected. EP plans have always been based on a range of postulated events that would result in a radiological release, including the most severe. Id.

6

Third, the connections between terrorism and the Indian Point exemption are obvious. The NRC acknowledges that its definition of design basis threats at Indian Point and elsewhere specifies terrorism as something it must consider. Frequently Asked Questions About NRCs Design Basis Threat Final Rule, NRC, http://www.nrc.gov/security/faq-dbtfr.html.4 Having named the particular threats associated with terrorism, the NRCs failure to consider terrorism when it issued the fire safety exemption was unreasonable, arbitrary, and dangerous.

Terrorism will have a unique and predictable impact on the adequacy of the alternative fire-safety management modalities included in the exemption because most of the alternatives replace physical insulation with the actions of human beings. The NRC asserts that, even with the exemption, a fire will be detected, suppression efforts organized and the fire suppressed within a very limited time. The success of these alternative fire suppression modalities would be affected by a terrorist attack, either a plane being crashed into the facility, or armed attack from land or water. The risks to the environment and public health and safety are worse when a fire is caused by a terrorist attack because terrorism will affect the organization and deployment of human fire suppression resources.

These are the very kind of real world consequences that NEPA requires the NRC to consider.

4 The design basis threats include, an assessment of physical, cyber, biochemical, and other terrorist threats; The potential for attack on facilities by multiple coordinated teams of a large number of individuals; The potential for assistance in an attack from several persons employed at the facility; The potential for suicide attacks; The potential for water-based and air-based threats; The potential use of explosive devices of considerable size and other modern weaponry; The potential for attacks by persons with a sophisticated knowledge of facility operations; The potential for fires, especially fires of long duration; The potential for attacks on spent fuel shipments by multiple coordinated teams of a large number of individuals; The adequacy of planning to protect the public health and safety at and around nuclear facilities, as appropriate, in the event of a terrorist attack against a nuclear facility . . . . Id.

7

As the NRC acknowledges, the Ninth and Third Circuits have split on this issue.

See CSR at 19 (The NRC acknowledges that a split in the circuit courts exist on this point, see San Luis Obispo Mothers for Peace v. NRC, 449 F.3d 1016 (9th Cir. 2006), but adheres to its position, outside of the Ninth Circuit, that NEPA does not require consideration of terrorists attacks.).

The NRC mistakenly relies on New Jersey Department of Environmental Protection

v. NRC (NJDEP), 561 F.3d 132 (3d Cir. 2009). In NJDEP, the Third Circuit held that there had to be a reasonably close causal relationship between a nuclear plants relicensing and the environmental effects of a hypothetical aircraft attack in order for the NRC to be required to consider terrorism under NEPA. See id. at 136. Since the NRC ha[d] no authority over the airspace above its facilities, which is largely controlled by Congress and the Federal Aviation Administration, id. at 139, there was no such reasonably close causal relationship.

Even if, arguendo, the Third Circuit identified the correct NEPA standard, NJDEP is readily distinguishable from the facts of this case. The threats of terrorism at Indian Point include but are not limited to airborne attack. Land and water based attacks on Indian Point are a constant source of NRC activity including the training and arming of security forces and evaluation of the effects of such attacks on facility operations. At Indian Point the NRC has legal discretion and has taken direct action over terrorism issues, which it could not in New Jersey. Insofar as New Jersey relies on the NRC's limited functional power over airborne terrorism it is distinguishable.

The NJDEP court also found that NEPAs requirement of a causal relationship was lessened because the potential public harm was the risk of psychological harm. This 8

would cause agencies to expend considerable resources on issues not otherwise relevant to their congressionally assigned functions . . . . Id. at 141 (quotation marks omitted). The Indian Point exemption does not involve risk of psychological harm. The exemption involves the actual ability of the Indian Point reactors to shut down in an emergency involving fire, as well as the actual health and safety consequences to the surrounding population of a failure to shut down. These are actual and realized impacts, not risk-induced psychological harm The NJDEP court relied on Department of Transportation v. Public Citizen, 541 U.S. 752 (2004), another case that is easily distinguishable from this one. Public Citizen stands for the common-sense proposition that when an agency engages in a ministerial actionone in which the agency is not permitted any discretion or decision-making process of its ownit is not required to consider the effects of that action. Id. at 770. At Indian Point, the NRC had the clear discretion deny the exemption. The reasoning of Public Citizen cannot be applied to the NRCs failure to consider terrorism at Indian Point.

The NRC does not even discuss San Luis Obispo, the Ninth Circuit case holding that NEPA requires consideration of the impacts of terrorism. San Luis Obispo is more apposite in its facts and better reasoned.

In San Luis Obispo, the NRC sought to be excused from a NEPA analysis of terrorism for four reasons: (1) the possibility of a terrorist attack is far too removed from the natural or expected consequences of agency action; (2) because the risk of a terrorist attack cannot be determined, the analysis is likely to be meaningless; (3) NEPA does not require a worst-case analysis; and (4) NEPA's public process is not an appropriate forum for sensitive security issues. 449 F.3d at 1028.

9

Here, the NRC abandons three of these putative reasons and rests its decision solely on the grounds that terrorist attacks are too far removed from the natural or expected consequences of agency action because the probability of such an attack is believed to be low. CSR at 19 (quotation marks omitted). We again point out that the NRC's unsubstantiated belief in the low probability of terrorist attack is itself legally insufficient to justify no consideration of terrorism.

We draw the attention of this Court San Luis Obispos differentiation of two kinds of NEPA analyses. When an agency is asked to consider the psychological effects caused by the risk of accident, NEPA imposes less of an obligation on the NRC to consider such impacts. See San Luis Obispo, 449 F.3d at 1029 (citation and quotation marks omitted). On the other hand, [t]he situation where an agency is asked to consider effects that will occur if a risk is realized, for example, if an accident occurs . . . is an entirely different case and NEPA analysis is required. Id. (quoting Metro. Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 775 n.9 (1983)). Accordingly, the Third Circuit conclude[d] that it was unreasonable for the NRC to categorically dismiss the possibility of terrorist attack on

[the nuclear storage] facility as too remote and highly speculative to warrant consideration under NEPA. Id. at 1030.

The NRCs reasons for refusing to consider terrorism at IP are similarly as dismissive, conclusory, and unavailing as were its reasons in San Luis Obispo. The NRC rests entirely on an unsubstantiated belie[f] about the probability of terrorism. The people of the New York metropolitan area have lived through too much horror and tragedy to permit the NRC to dismiss terrorism in such an off-handed manner. We ask this Court to recognize that in New York as well as in the geographical reach of the Ninth Circuit, the 10

possibility of terrorist attack is not so remote and highly speculative as to be beyond NEPA's requirements. Id. at 1031.

We draw this Court's attention to a danger of ruling that NEPA does not require an analysis of terrorism at Indian Point.5 In the complicated world of terrorists, it is difficult to know what factors influence the choice of targets. Given their real life experiences, the twenty million people living near Indian Point have a reasonable expectation that the level of legal protection extended to them will be at least as thorough as that which has been extended to the people of California. It is simple prudence to choose the most protective of the available legal protections.

II. The NRCs Assessment of the Environmental Impacts Based on the Incomplete Record Submitted to the Court Was Arbitrary and Capricious.

This Court must ensure that the agency has taken a hard look at environmental consequences . . . . Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976); see also Brodsky III, 704 F.3d at 123. This requires a two-step analysis. First, we must consider whether the agency took a hard look at the possible effects of the proposed action . . . .

Second, if the agency has taken a hard look, we must ask whether the agency's decision was arbitrary or capricious. Natl Audobon Socy v. Hoffman, 132 F.3d 7, 14 (2d Cir.

1997).

The NRC has not taken its requisite hard look at the environmental consequences of the issuance of the new exemption, and its decision to forego the preparation of an EIS was arbitrary and capricious.

5 We also note that due to NRCs decision to categorically exclude certain exemptions from NEPA requirements, this may be the last time that a court will know of and be able to consider whether terrorism is a NEPA-required issue.

11

First, the incomplete record that the NRC submitted to the court is entirely inadequate to constitute the hard look required by NEPA. The original Certified Record contains only 31 documents, 23 of which are non-substantive administrative documents or were created after issuance of the exemption; three of which are substantive, but discuss generic issues as they relate to all nuclear power plants, not to IP. Only five documents are substantive and discuss IP. See Brodsky Declaration ¶ 9. The Certified Supplemental Record is limited to the public comments that NRC received in response to the Draft FONSI, the NRCs responses to those comments, and NRCs federal register notices. See id.

Of the five IP-related substantive documents, three are documents produced as advocacy by and for Entergy. While it is difficult to set a bright-line minimum number of documents that an agency must make part of the record, several factors in this case make clear that two NRC documents cannot possibly constitute a hard look. The effectiveness of manual suppression as an alternative to physical protection, the disruptive impact of terrorism on the ability of the exemption to provide adequate protection for the environment and public health and safety, and the exemption's effect on the possible duration of fires affecting the cables cannot possibly be given such a cursory examination.

See Brodsky Declaration ¶ 10-23. This makes even more disturbing the NRC's refusal to accept and consider the contents of the documents proffered by Petitioners that illuminate these and other issues.

For the same reasons the NRCs decision to forego an EIS based on the incomplete record it submitted was arbitrary and capricious because the NRC entirely failed to 12

consider an important aspect of the environmental impacts. See Motor Vehicle Mfrs. Assn of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).

Therefore, because NRC failed to take the requisite hard look at the environmental impacts and failed to consider various import impacts, this Court should remand to the agency so that it may adequately assess those impacts.

III. The NRCs Refusal to Provide the Court with the Complete Record Was Arbitrary and Capricious.

In ruling on the validity of agency action, a courts review is to be based on the full administrative record that was before the Secretary at the time he made his decision.

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 105 (1977). The record supplied by the NRC for these proceedings on remand excludes relevant documents proffered by petitioners and evaluated by the NRC.

In order for a court to properly review an agency action the law requires production of the entire administrative record. Silvia v. Lynn, 482 F.2d 1282, 1283 (1st Cir. 1973) (citations omitted). The NRC has made a mockery of the judicial review process by submitting an incomplete record to this court for its review. Accordingly, petitioners request that this court set aside the NRCs action as arbitrary and capricious, or in the alternative, remand to the agency to compile the complete administrative record so that this court may proceed with its review.

The whole record includes all materials that might have influenced the agency's decision, and not merely those on which the agency relied in its final decision. County of San Miguel v. Kempthorne, 587 F. Supp. 2d 64, 71 (D.D.C. 2008) (citations, quotation 13

marks, and brackets omitted). The record also includes all documents that the agency directly or indirectly considered in reaching its decision on the action being challenged.

County of San Miguel, 587 F. Supp. 2d at 72 (citing Alaska Excursion Cruises v. United States, 603 F. Supp. 541, 550 (D.D.C. 1984)). An agency has indirectly considered documents when plaintiffs show[] that they specifically directed the agency to the

[documents] in their timely-filed comments and later, less than two hours after the comment period ended, attempted to submit the [documents] to the agency. Am. Wild Horse Pres. Campaign v. Salazar, 859 F. Supp. 2d 33, 45 (D.D.C. 2012). The NRC does not dispute that it was aware of, in possession of, and reviewed and analyzed the excluded documents during the comment period. See CSR at 32-33.

Supplementation of the record might be required if petitioners ma[k]e a prima facie showing that the agency excluded from the record evidence adverse to its position

. . . . Public Citizen v. Heckler, 653 F. Supp. 1229, 1237 (D.D.C. 1986) (citations and brackets omitted). The agency may not . . . skew the record . . . by excluding from that record information . . . which has great pertinence to the proceeding . . . even when these highly relevant submissions in the agency's files [were] not considered by [the agency] to be part of the record as not relied upon in reaching its final order. Envtl. Def. Fund v.

Blum, 458 F. Supp. 650, 661 (D.D.C. 1978).

Petitioners point this Court to the documents discussed in public comments, CSR 228-31, and in the declaration of Petitioner Richard Brodsky, see Brodsky Declaration at

¶ 10-22. In its responses to Petitioners comments, the NRC indicated that it has read these documents and determined that they are not relevant. See CSR at 32-33. These documents were contained in the agencys own files, see id., and thus the agency was aware of them at 14

the time it made its decision. They are a part of the complete administrative record because the agency indirectly considered them, see Am. Wild Horse Pres. Campaign, 859 F. Supp.

2d at 45, and it was arbitrary and capricious for the NRC to refuse to file them with this court.

The explanations contained in the public comments before the court, see CSR 228-31, and the analysis contained in the declaration of Petitioner Brodsky, see Brodsky Declaration ¶ 10-22, establish that the documents that the NRC excluded from the record were relevant and adverse to its positions. The NRC is not entitled to deference in its determination that these documents are not relevant. See Asarco, Inc. v. EPA, 616 F.2d 1153, 1160 (9th Cir. 1980). This is a matter for resolution by the courts. Although Petitioner Brodskys declaration contains a complete analysis of all of the improperly excluded documents, see Brodsky Declaration ¶ 10-22, two illustrative examples are provided here to demonstrate the relevancy and significance of the excluded documents.

The NRC refused to consider the Current Electrical Separation Analysis, see CSR at 33, a document to which Petitioners and others referred the agency in timely-filed public comments, see CSR at 230. The NRC requires the electrical cables controlling a reactor shutdown in an emergency to be sufficiently far apart so that a fire that damages one set of cables will be unlikely to damage the backup. If the two sets of cables are too close together, then a fire is more likely to be catastrophic because facility personnel will be unable to use the backup cables to shut down the reactor and prevent terrible results. First, the Current Fire Hazards Analysis is relevant because it shows that IPs cables are close together and out of compliance with the NRCs requirements. Second, the document is adverse to the agencys decision that environmental impacts were insignificant because the 15

close proximity of the cables makes a catastrophic fire and its significant environmental impacts more likely to occur. Its consideration might have influenced the NRCs assessment of the environmental impacts resulting from the grant of the exemption to the fire safety standard of these cables. See Brodsky Declaration ¶ 14.

The NRC also apparently refused to consider Design Basis Threat Documents (DBTs) applicable to Indian Point, see CSR at 33 (Other documents to which the commenter referred were not relevant . . . .), a document to which Petitioners and others referred the agency in timely-filed public comments, see CSR at 229. First, the this document is relevant because it demonstrates the centrality of terrorism as an issue that Indian Point must address in its operations and plant facilities. IPs policies and practices for responding to terrorism are an important element of NRCs obligation to take a hard look at the environmental and public health and safety impacts of terrorism. First, the terrorism-related issues discussed in the DBTs demonstrates that emergency response and fire safety personnel would be stretched thin in the event of a terrorist attack. An actual attack would disrupt organization and deployment of that personnel. Second, the DBTs are adverse to the documents in the record, none of which analyze the consequences of the exemption on the duration of a fire involving the emergency cables. Both these factors impact the environmental, public health, and safety consequences of granting the exemption and exacerbate the dangers to the public health and safety caused by a catastrophic fire.

The NRCs refusal to submit the full administrative record to this court for review was arbitrary and capricious. Petitioners ask this court to set aside the NRCs grant of the exemption, or in the alternative, remand to the agency to order it to compile the complete 16

record. Once the full record is in front of the NRC, it will be unable to reasonably conclude that the environmental impacts of issuing the exemption are insignificant.

IV. The NRCs Refusal to Consider Issues that It Deems Safety-Related Is Arbitrary and Capricious.

The NRC has refused to consider comments and evidence it deems to involve public health and safety because they were considered in the 2007 exemption process. See CSR at 18-19. This is inconsistent with the requirements of NEPA. NEPA requires federal agencies to decide whether a major federal action will significantly affect the quality of the human environment . . . . Hanly v. Kleindlenst, 471 F.2d 823, 830 (2d Cir. 1972)

(emphasis added) (quotation marks omitted); see also 42 U.S.C. § 4332(C). The statutory phrase actions significantly affecting the quality of the environment is intentionally broad, reflecting the Act's attempt to promote an across-the-board adjustment in federal agency decision making so as to make the quality of the environment a concern of every federal agency. Scientists Inst. for Pub. Info., Inc. v. AEC, 481 F.2d 1079, 1088 (D.C. Cir. 1973)

(quotation marks omitted). Health and safety issues at Indian Point affect the quality of the human environment for over 20 million people in the New York metropolitan area and must be considered.

This issue was addressed in Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719 (3d Cir. 1989). The NRC had asserted that a finding of adequate protection of public health and safety under section 182(a) of the AEA precludes the need for further consideration under NEPA. See id. at 729. The Third Circuit rejected that contention:

The language of NEPA indicates that Congress did not intend that it be precluded by the AEA. Section 102 of NEPA requires agencies to comply to the fullest extent possible. 42 U.S.C. § 4332. Although NEPA imposes responsibilities that are purely procedural, see Vermont Yankee, 435 U.S. at 558, 98 S.Ct. at 1219, there 17

is no language in NEPA itself that would permit its procedural requirements to be limited by the AEA. Moreover, there is no language in AEA that would indicate AEA precludes NEPA.

Id. The court further opined that the legislative history of the phrase to the fullest extent possible indicates that Congress intended that NEPA not be limited by other statutes by implication. Id. In sum, by whatever route the NRC claims to have determined the environmental impact of [the plant], it has not succeeded, or attempted to succeed, in convincing this Court that the procedural requirements of NEPA have been met. Id. at 731.

The NRC may not assert that an AEA review forecloses a NEPA review of public health and safety issues at Indian Point insofar as these issues impact the environment. Its attempt to do so is a violation of NEPA and is arbitrary and capricious.

Moreover, Petitioners respectfully remind this Court that the August 27, 2013 ACTION: Environmental assessment and finding of no significant impact; issuance, see CSR at 17, was a new exemption based on a new record. As such, the exemption is entitled to a new review by this Court.

V. The NRCs Denial of Petitioners Request for a Hearing Was Arbitrary and Capricious.

NEPA requires federal agencies, including the NRC, to [h]old or sponsor public hearings or public meetings whenever appropriate or in accordance with statutory requirements applicable to the agency. 40 C.F.R. § 1506.6(c). CEQs regulations set forth what factors the NRC must consider when deciding whether a hearing is appropriate.

These factors shall include whether there is . . . [s]ubstantial environmental controversy 18

concerning the proposed action or substantial interest in holding the hearing. Id.

§ 1506.6(c)(1).6 The NRC has ignored these legal requirements. Its stated reason for refusing to hold a hearing is that that the AEA and the NRC regulations do not guarantee or require a hearing. CSR at 18. The NRC is completely silent on the CEQ substantial interest or substantial environmental controversy tests.

Petitioners do not argue that the NRC must conduct a hearing. It has discretion. In exercising that discretion, it may not ignore the CEQ regulations or fail to offer reasons for its denial of the hearing request. According to the CEQ regulation, the NRC was required to at least assess and consider the level of environmental controversy and public interest. It did not. By entirely fail[ing] to consider an important aspect of its regulatory mandate, the NRC has behaved arbitrarily and capriciously. See Motor Vehicle Mfrs. Assn, 463 U.S.

at 43.

The NRC did not assess or comment on the degree of public controversy and interest because it could not possibly have done so and declined to hold a hearing. The Indian Point exemption has caused sustained public interest and enormous environmental controversy over whether to lessen the survival time of physical insulation on Indian Point's emergency shutdown cables; whether this will lead to an increased risk of a catastrophic event that threatens the environment, health, and welfare of over 20 million people in the New York metropolitan area; and the survival of the water supply and biosphere. That controversy and interest is evidenced by the continuing media interest and 6

The CEQ was created by NEPA, and its regulations interpreting the statute are entitled to substantial deference. Andrus v. Sierra Club, 442 U.S. 347, 358 (1979).

19

the 135 comments submitted to the NRC, a number of which are from organizations and officialsincluding the Sierra Club Atlantic Chapter, Westchester Citizens Action Network, Riverkeeper, and Governor Cuomowhich themselves represent tens of thousands of affected citizens.

The NRC violated the law by refusing to assess and consider the level of public controversy and interest as required by CEQ regulations and by failing to hold a hearing.

VI. Petitioners Seek Court Permission to File Supplemental Fact and Argument.

Petitioners are entitled to judicial review of the August 27, 2013 exemption and the record upon which it was based. Normally that review would have occurred by a filing of a District Court action alleging violations of the AEA, and APA, and NEPA. Given the pendency of the remand proceeding, it would have been non-sensical to do so. Although we have raised AEA and APA claims in this brief consistent with Brodsky III, we ask for the opportunity to file before this Court supplemental fact and argument on these points. To hold otherwise, would be to read the Second Circuits decision in Brodsky III to foreclose judicial review of the substance and process of a newly-issued exemption based on a newly-created record.

CONCLUSION For the forgoing reasons, Petitioners respectfully ask this Court to 1) determine that the August 27, 2013 exemption was improperly granted and void; 2) remand the matter to the NRC; 3) permit Petitioners to submit supplemental material; and 4) grant such other relief as it may deem appropriate.

February 14, 2014 Respectfully submitted, 20

Richard Brodsky, Esq.

2121 Saw Mill River Rd.

White Plains, NY 10607 R. Benjamin Nelson Legal Intern Columbia Law School 21

In the United States District Court for the Southern District of New York RICHARD L. BRODSKY, NEW YORK STATE ASSEMBLYMAN, FROM THE 92ND ASSEMBLY DISTRICT IN HIS OFFICIAL AND INDIVIDUAL CAPACITIES, WESTCHESTER CITIZENS AWARENESS NETWORK (WESTCAN), ROCKLAND COUNTY CONSERVATION ASSOCIATION, INC. (RCCA), PUBLIC HEALTH AND BRIEF ON REMAND SUSTAINABLE ENERGY (PHASE), AND SIERRA CLUB -

ATLANTIC CHAPTER (SIERRA CLUB),

Petitioners, Case No. 09-CIV-10594(LAP)

-v.

U.S. NUCLEAR REGULATORY COMMISSION, Respondent, and ENTERGY NUCLEAR OPERATIONS, INC.,

Intervenor.

DECLARATION OF RICHARD BRODSKY, ESQ.

RICHARD BRODSKY, Esq., under penalties of perjury, hereby declares:

1) I am the Plaintiff in this case and am familiar with its facts, documents, events and history involved in this litigation. The August 27, 2013 issuance of the exemption was an act by the NRC that is within the jurisdiction of this court to review de novo, as violative of NEPA, the APA and the AEA . Furthermore, the remand to this court by the Second Circuit requires gives separate grounds for such judicial review, insofar as the Second Circuit required a District Court assessment of whether the NRC had established it took a hard look at all NEPA issues.

2) I served as a Member of the New York State Assembly from 1983 through 2010. Among other positions I held, I was Chairman of the Committee on Investigations, Chairman of the Committee on Environmental Conservation and Chairman of the Committee on Corporations, Commissions and Authorities.

3) Each of these Committees had jurisdiction over laws, polices, practices and events occurring at nuclear power facilities, including Indian Point, the facility granted the exemption at issue in this case. This was especially true during the time Indian Point was owned and operated by the Power Authority Of The State Of New York, a public benefit corporation under the specific jurisdiction of the Committee on Corporations, Commission and Authorities.

4) As Chairman of these Committees I conducted numerous public hearings and investigations of nuclear power facilities, their safety, management, efficiency, costs and dangers and issued numerous reports on these subjects. These activities have given me a deep familiarity with and knowledge of the operations of Indian Point and the Nuclear Regulatory Commission (NRC) as well as the law and policies which govern them. These issues include but are not limited to the impacts of terrorism and actions taken to prevent or minimize it, plans to protect the public health and safety by evacuation of the population after an accident or terrorist attack, the negligence and dangers which characterized the operation of Indian Point especially during the time it was rated the most dangerous facility in the nation by the NRC, the regulatory and operational practices dealing with fire safety and the secrecy and self-interest which continues to characterize Indian Point operations.

5) I also brought a number of successful lawsuits and administrative actions with respect to illegal and dangerous activities at Indian Point including its repeated failure to comply with state and federal laws. These included litigation on the lack of state authorization for Indian Point's daily use of billions of gallons of Hudson River water without payment and without remedial treatment in violation of federal and state law (Brodsky v. Crotty which required the New York State Department of Environmental Conservation to decide on a water quality permit for Indian Point. Hearings on the permit application are now taking place); the legal inadequacy of required evacuation plans; the dangers of fire and leakage at spent fuel pools and elsewhere; the negligent operation of Indian Point in the year 2000 which resulted in major release of

radioactive material and eventually resulted in the licensee repaying over $130 million in unjustified charges; and the failure of state and Federal agencies to perform as required by law and other issues.

6) Among the issues to be addressed by this Court are the failure of the NRC to consider the impact and consequences of terrorism on the exemption, the failure of the NRC to consider and make part of the record a series of relevant and probative documents which contradict documents in the record and the conclusions of the licensee and the NRC, the lack of sufficient evidence to justify the granting of the exemption and the failure of the NRC to conduct a public hearing as requested.

7) The NRC has argued that there is little it can do with respect to airborne terrorism and is therefore excused from considering any form of terrorism. That is both legally and factually wrong. The NRC has repeatedly addressed issues of the inadequacy of weaponry, training and effectiveness of site-based security against land and/or water based attacks. The adequacy of these actions is debatable. It is undisputed however that the NRC has jurisdiction, is legally required to and has in fact addressed the elements of plant security dealing with land and water based terrorist attacks.

8) It is also undisputed that land or water based terrorist attack will disrupt facility operations in unique and dangerous ways. To the extent that the Indian Point exemption de-emphasizes physical and passive fire safety methods and emphasizes alternatives that require human responses, it clearly increases the risk of actual environmental damage and public danger as a result of a terrorist attack. These matters must be reviewed and considered before an exemption is approved.

9) The NRC has repeatedly refused to consider and include in the record documents that are relevant and probative to the Indian Point exemption. The original Certified Record contained only 31 documents: 23 of them are administrative or were created after the exemption was

issued, 3 of them are substantive, but discuss generic issues not the terms or specifics of the Indian Point exemption, 5 are substantive discussion of Indian Point exemption issues. The 5 (or 8) substantive documents are largely conclusory and do not contain consideration of evidence in the possession of the NRC which is unfavorable to the request. The Certified Supplemental Record now submitted is limited to public comments, NRC responses and administrative documents. The dangers that result from this inadequate and biased record are

1) dangers to the environment and 2) dangers to the public health and safety. The NRC's failure to consider and make part of the record the documents discussed below is unreasonable, arbitrary and capricious. The NRC was repeatedly requested to consider them by Petitioners and others. By refusing it has failed to meet NEPA requirements, and requirements of the AEA and the APA. These documents include those discussed in paragraphs 10 through 22 below. It is important to note that Entergy's request for the exemption was based on inaccurate and self-serving statements about the failure of the cable insulation to provide the required protection.

it is Entergy's conclusion that the revised fire resistance rating of the Hemyc ERFBS does not reflect a reduction in overall fire safety, and presents no added challenge to the credited post-fire safe-shutdown capability. The remainder of the credited fire protection features, the fire hazards and ignition sources, fire brigade and operator response to fire events, and the credited post-fire safe-shutdown capability remain materially unchanged Exhibit 1, attached. Entergy based its request on an unsubstantiated assertion that the deteriorated performance of the insulation had no impact on fire safety. Entergy further asserts that the other fire-safety measure including manual suppression are as adequate with inferior insulation as they may have been when the insulation met standards. The documents we offer each contain evidence the Entergy was wrong. The documents contradict the evidence included in the record by the NRC.

In order to meet the requirement that it take a hard look at the exemption issues, the NRC should have and now must be compelled to make these documents part of the record and to

consider their evidence. The law requires that they take a hard look at both sides of the argument.

10) The modifications to the operating license, Safety Analysis Reports (SARs), Plant Technical Specifications regarding fire protection program or hardware, or operational changes will disprove factual and scientific assertions made by Entergy as to the basis and need for the exemption, such as those set forth in paragraph 9 above. The SARs contain evidence that contradicts the documents included in the record by the NRC insofar as the operational changes and fire protection programs show weaknesses not discussed in the record. This includes but is not limited to the last-minute change from a request for a 30 minute exemption to the 24 minute exemption which was granted and probative. On information and belief, the motivating force beyond Entergy's decision to seek the exemption was cost, not safety or impact on the environment. Only a review of the SAR documents can clarify this and the refusal of the NRC to include these in the record is dangerous and illegal.

11) The fire protection elements of the Design Basis Threat Documents for Indian Point Unit 3 are required to be considered by statute (10 C.F.R. 73.1) when the NRC is weighing fire safety and protection matters. They are the NRC's list of credible threats to plant safety. They focus strongly on terrorism and its impacts on the plant and the environment. They include requirements for an assessment of significance and modalities of protection against and response to terrorist attacks. The DBT documents specifically mention an assessment of physical, cyber, biochemical, and other terrorist threats; The potential for attack on facilities by multiple coordinated teams of a large number of individuals; The potential for assistance in an attack from several persons employed at the facility; The potential for suicide attacks; The potential for water-based and air-based threats; The potential use of explosive devices of considerable size and other modern weaponry; The potential for attacks by persons with a sophisticated knowledge of facility operations; The potential for fires, especially fires of long

duration; The potential for attacks on spent fuel shipments by multiple coordinated teams of a large number of individuals; The adequacy of planning to protect the public health and safety at and around nuclear facilities, as appropriate, in the event of a terrorist attack against a nuclear facility; The DBT documents specifically reference the potential for fires especially fires of long duration It is facially obvious that replacement of physical fire barriers with others including personnel based protections run a real risk of prolonging the length and severity of fires. The DBT's contradict the record in at least the two areas of terrorism and the risk of fires of longer duration. The documents establish that the NRC knows and has responded to such threats and should have considered them before issuing the exemption.

12) The Current Safe Shutdown Analysis for Indian Point establishes 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 prior to granting the exemption. The document will disprove assertions by both Entergy and the NRC and contradicts documents in the record, insofar as the duration of functional survival in an electrical cable fire is relevant and important.

13) The Current Fire Hazards Analysis sets forth the kinds and causes of fires within Indian Point as well as the modalities of prevention and suppression. This information is crucial and relevant to a decision on whether non-insulation protections are equal or inferior to a 60-minute barrier. It is the primary document with respect to fire safety at Indian Point. The NRC previously cited to it as a document it considered in the 2007 issuance and subsequently admitted it had not considered the document.

14) The Current Electrical Separation Analysis is needed to determine whether the physical distance between the redundant electric cables controlling reactor shutdown in an emergency are so close as to make it impossible to identify, organize and implement fire suppression before loss

of shutdown capability occurs. The NRC usually requires the electrical cables controlling a reactor shutdown in an emergency to be sufficiently separated so that a fire that damages one cable will be unlikely to damage others. Cable proximity means that a fire is more likely to be catastrophic because redundant systems are more likely to fail, with corresponding catastrophic consequences to the environment and public health and safety. The Current Fire Hazards Analysis shows that IPs cables are close together and out of compliance with NRCs requirements. Consideration of the CESA would have influenced NRCs assessment of the environmental impacts resulting from the grant of the exemption. It also contradicts the documents in the record, to the extent they consider this issue at all. Such information is essential to determining whether lessening the passive protections is dangerous or safe.

15) Review of documents showing the types and installation dates of fire seals, fire wraps, barriers, insulation materials will establish that Entergy has not been in compliance with existing regulatory requirements, other than the 60 minute rule. The exemption should not be granted on the assumption that the various non-Heymc protections in place are currently in compliance with NRC requirements. A review of these documents would have changed or influenced the NRC decision to grant the exemption.

16) The Temporary and Permanent Modifications required to support implementation of the fire protection program at each of the three units at Indian Point will establish that Entergy has not complied with the terms of the 2007 exemption. The Indian Point facility has been repeatedly modified by both permanent and temporary physical and programmatic changes. Some of these are required by the NRC. On information and belief, they are insufficient to protect the plant against certain fires, and have not been put into place as required. A systematic failure to abide by existing rules is relevant to issuance of an exemption from them.

17) The Interim Compensatory Measures and/or Operator Manual Actions are temporary measures that units can take without prior approval to compensate for equipment that needs to be repaired

or replaced, including roving or continuously manned fire watches that occur while nuclear units take corrective actions. These will establish the Entergy has failed to meet existing Appendix R requirements and those set forth in the August 2007 exemption, thereby rendering a second approval of the same exemption dangerous and arbitrary. The content of these documents as well as those described in paragraph 16 above are particularly important as rebuttal evidence to the Entergy assertion that the inferior insulation has no impact on fire safety or alternative fire suppression modalities.

18) Proposed Modifications to any of the three units under the 50.59 process as related to fire protection and appendix R compliance, or changes to CLB (current licensing basis) with respect to fire protection will establish that the NRC failed to consider, obtain information, evaluate, and/or review the effects and impacts of the exemption on the environment and public health and safety.

19) The most Recent Triennial Inspections relating to fire safety will establish the objective dangers and conditions with respect to fire safety practices and polices affected by the exemption. They will also establish the scope of licensee non-compliance with fire safety regulations. It is impossible to conclude that the exemption will not cause unacceptable danger to the environment and the public health and safety without knowing what is in the fire inspection documents.

20) The Licensee Event Reports associated with fire protection systems, fire related events, or changes to operational modes related to fire protection will establish that repeated events have taken place at Indian Point which contradict assertions made by Entergy and the NRC about the competency of the Indian Point operators and the effectiveness of actual and proposed fire safety modalities. These have probative value at least as strong as the RTIs.

21) The docketed Commitments regarding fire protection for any of the three Indian Point plants

will establish that the NRC and Entergy have disregarded such commitments with respect to fire safety protection bat Indian Point thereby increasing the danger to the environment and public health and safety beyond what is admitted in the exemption documents in the record.

22) The record before this court is comprised of only those documents that provide evidence and argument that justify the issuance of the exemption. The documents described above provide evidence and argument in opposition to the issuance of the exemption. It is unreasonable and arbitrary for the NRC to consider only the fraction of evidence in their possession which supports the exemption.

23) The Certified Record ought to include the documents discussed above and does not. That Record is inadequate to justify the granting of the exemption. If the documents were added to the record the evidence would require a different decision then the one the NRC made on August 27, 2013.

24) The NRC's refusal to conduct a public hearing deprived Petitioners of their right and ability to persuade the NRC that the matters being litigated here should have been dealt with as part of the NEPA process, and the EA and APA processes as well. There was and is enormous public interest in the issue of fire safety at Indian Point as affected by the exemption. The number of comments by individuals and by public interest organizations, and by government officials such as Governor Cuomo are evidence that a hearing was important to the NEPA process and should have been held.

I declare under penalty of perjury that the foregoing is true and correct. Executed at New York, New York this 14th day of February 2014.

By: _________________________

Richard Brodsky

EXHIBIT 1

- Entergy Entergy Nuclear Northeast Indian Point Energy Center 450 Broadway, GSB P.O. Box 249 Buchanan, NY 10511-0249 Tel 914 734 6700 Fred Dacimo Site Vice President Administration July 24, 2006 Re: Indian Point Unit No. 3 Docket No. 50-286 NL-06-078 U.S. Nuclear Regulatory Commission ATTN: Document Control Desk Washington, DC 20555-0001

SUBJECT:

Request for Revision of Existing Exemptions from 10 CFR 50, Appendix R: One-Hour Hemyc Electrical Raceway Fire Barrier System, Fire Areas ETN-4 and PAB-2

References:

1) NRC Information Notice 2005-07, "Results of HEMYC Electrical Raceway Fire Barrier System Full Scale Fire Testing," April1, 2005

2) NYPA Letter, J. C. Brons to S. A. Varga (NRC), "Appendix R Fire Protection Program," August 16, 1984

3) NYPA Letter, J. C. Brons to S. A. Varga (NRC), "Information to Support the Evaluation of IP3 to 10 CFR 50.48 and Appendix R to 10 CFR 50," September 19, 1985

4) NRC Letter and SER, S. A. Varga to J. C. Brons (NYPA), "Indian Point 3 Nuclear Power Plant - Exemption From Certain Requirements of Section III.G and III.J of Appendix R to 10 CFR Part 50," January 7, 1987

5) IPEC Letter NL-06-060, F. Dacimo to Document Control Desk, "Response to Generic Letter 2006-03 (Potentially Nonconforming Hemyc and MT Fire Barrier Configurations)," June 8, 2006

Dear Sir or Madam:

NRC Information Notice (IN) 2005-07 (Reference 1) notified licensees of potential performance concerns associated with the one-hour rated Hemyc electrical raceway fire barrier system (ERFBS), indicating that the system may be incapable of fulfilling the stated one-hour fire resistance rating when tested in accordance with Generic Letter 86-10, Supplement 1 criteria. Indian Point Unit No. 3 (IP3) utilizes the one-hour rated Hemyc NL-06-078 Docket No. 50-286 Page 2 of 3 ERFBS that is the subject of IN 2005-07 in two areas of the plant. In a Safety Evaluation Report (SER) dated January 7, 1987 (Reference 4), the Staff granted a number of exemptions from specific requirements of 10 CFR 50, Appendix R, which included these two plant areas. Entergy has reviewed the Hemyc fire test results provided by the NRC in IN 2005-07 and has determined that it is necessary to revise the fire resistance rating of the Hemyc ERFBS configurations credited in two of the exemptions.

The two affected exemptions are those applicable to Fire Area PAB-2 in the Primary Auxiliary Building, and Fire Area ETN-4 in the Electrical Tunnels and Electrical Penetration Areas.

In accordance with 10 CFR 50.12, the purpose of this letter is to request revision of the January 7, 1987 SER to reflect that the installed Hemyc ERFBS configurations provide a 30-minute fire resistance rating, in lieu of the previously stated one-hour fire resistance rating. The requests for the exemptions granted by the January 7, 1987 SER were docketed in NYPA Letters dated August 16, 1984 (Reference 2) and September 19, 1985 (Reference 3). Based on a review of these letters and of the NRC test results, it is Entergy's position that a Hemyc ERFBS fire resistance rating of 30 minutes will provide sufficient protection for the affected raceways, with adequate margin, to continue to meet the intent of the original requests for exemption and the conclusions presented in the January 7, 1987 SER. This evaluation is summarized in Attachment 1.

As documented in Attachment 1, it is Entergy's conclusion that the revised fire resistance rating of the Hemyc ERFBS does not reflect a reduction in overall fire safety, and presents no added challenge to the credited post-fire safe-shutdown capability. The remainder of the credited fire protection features, the fire hazards and ignition sources, fire brigade and operator response to fire events, and the credited post-fire safe-shutdown capability remain materially unchanged from the configuration as originally described in the NYPA letters and as credited in the January 7, 1987 SER.

Entergy has reviewed the as-built configurations of the Hemyc ERFBS installed at IP3 against the results of the NRC Hemyc fire test program as referenced by IN 2005-07.

This review has determined that the installed ERFBS can be expected to afford a thermal protection rating of at least 30 minutes, contingent upon the installation of a modification to augment raceway support protection and to install over-banding of certain enclosures.

A commitment to install these modifications is contained in our response to Generic Letter 2006-03 {Reference 5). The conclusions from the engineering evaluation are also summarized in Attachment 1.

There are no new commitments contained in this letter. If you have any questions or require additional information, please contact Mr. Patrie W. Conroy at 914-734-6668.

NL-06-078

Docket No. 50-286 Page 3 of 3 ed R. Dacimo Site Vice President Indian Point Energy Center Attachment 1: Request for Revision of Existing Exemptions from 10 CFR 50, Appendix R: One-Hour Hemyc Electrical Raceway Fire Barrier System, Fire Areas ETN-4 and PAB-2 cc: Mr. Samuel J. Collins, Regional Administrator, NRC Region I Mr.

John P. Boska, Senior Project Manager, NRC NRR DORL NRC Resident Inspectors Office, Indian Point Energy Center Mr. Paul Eddy, New York State Department of Public Service Mr. Peter R. Smith, NYSERDA