ML13164A362

United States Court of Appeals for the Second Circuit - Summary Order

ML13164A362
Person / Time
Site:	Indian Point
Issue date:	01/07/2013
From:	US Federal Judiciary, Court of Appeals, 2nd Circuit
To:	Office of Nuclear Reactor Regulation
Pickett D V
References
TAC MF0840
Download: ML13164A362 (9)

Text

• Judge Laura Taylor Swain of the United States District Court for the Southern District of New York, sitting by designation.11-2016-cvBrodsky v. U.S. Nuclear Regulatory Comm'n UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY

ORDERRULINGS BY

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ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A

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ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A

SUMMARY

ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION

"

SUMMARY

ORDER"). A PARTY CITING A

SUMMARY

ORDER MUST SERVE A COPY OF IT ON ANY

PARTY NOT REPRESENTED BY COUNSEL.At a stated term of the United States Court of Appeals for the Second Circuit, held atthe Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 7 th day of January, two thousand thirteen,PRESENT:ROBERT D. SACK, REENA RAGGI, Circuit Judges

, LAURA TAYLOR SWAIN, District Judge

.*----------------------------------------------------------------------RICHARD L. BRODSKY, New York State Assemblyman, from the 92nd Assembly District, in his official and individual capacities, WESTCHESTER'S CITIZENS AWARENESS NETWORK (WESTCAN), SIERRA CLUB

- ATLANTIC CHAPTER (SIERRA CLUB), Plaintiffs-Appellants

,PUBLIC HEALTH AND SUSTAINABLE ENERGY (PHASE), Plaintiff ,v.No. 11-2016-cv UNITED STATES NUCLEAR REGULATORY

COMMISSION, Defendant-Appellee

, Case: 11-2016 Document: 116 Page: 1 01/07/2013 808818 9 2 ENTERGY NUCLEAR OPERATIONS, INC., Defendant.----------------------------------------------------------------------APPEARING FOR APPELLANTS:RICHARD L. BRODSKY, Esq., pro se , White Plains, New York.APPEARING FOR APPELLEE:BENJAMIN H. TORRANCE (Sarah S. Normand, on the brief), Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, New York, New

York.FOR AMICUS CURIAE:Kelly A. Berkell, Office of Assemblywoman AmyR. Paulin, for amicus curiae New York Legislators

.Appeal from a judgment of the United States District Court for the Southern District of New York (Loretta A. Preska, Judge).UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, ANDDECREED that the judgment entered on March 11, 2011, is AFFIRMED IN PART.Plaintiffs appeal from an award of summary judgment to defendants in this actionunder the Administrative Procedure Act ("APA"), see 5 U.S.C. § 701 et seq., challenging adecision of the United States Nuclear Regulatory Commission ("NRC") granting an exemption from fire safety regulations, see 10 C.F.R. § 50.48; id. pt. 50 App. R, to the IndianPoint 3 nuclear power plant operated by defendant Entergy in Westchester County, New York. This order addresses all of plaintiffs' claims except one charging the NRC withviolating public participation requirements under the National Environmental Policy Act

("NEPA"), see 42 U.S.C. §§ 4321-47, which is the subject of an opinion issued Case: 11-2016 Document: 116 Page: 2 01/07/2013 808818 9 3simultaneously with this order. We assume the parties' familiarity with the underlying factsand record of prior proceedings, which we reference only as necessary to explain our decision to affirm the judgment with respect to the claims addressed herein.

1.The NRC's Authority To Issue ExemptionsPlaintiffs challenge the NRC's authority to issue exemptions from its regulationspromulgated under the Atomic Energy Act ("AEA"), see 42 U.S.C. § 2011 et seq. Theargument is defeated by well-established precedent "that an agency's authority to proceedin a complex area . . . by means of rules of general application entails a concomitant authorityto provide exemption procedures in order to allow for special circumstances." United Statesv. Allegheny-Ludlum Steel Corp., 406 U.S. 742, 755 (1972); see also Alabama Power Co.

v. Costle, 636 F.2d 323, 357 (D.C. Cir. 1979) (recognizing power of agency to grantdispensation from general rule in particular cases).The AEA "establishes a comprehensive regulatory framework for the ongoing reviewof nuclear power plants located in the United States," pursuant to which "the NRC isempowered to promulgate rules and regulations governing the construction and operation of nuclear power plants." County of Rockland v. U.S. Nuclear Regulatory Comm'n , 709 F.2d766, 769 (2d Cir. 1983). In its regulations, the NRC has specifically provided for an exemption procedure, which it applied in this case. See 10 C.F.R. § 50.12. In so doing, theagency acted well within the scope of its regulatory discretion. Plaintiffs' argument that the AEA's scattered references to "exemptions" from certain statutory requirements signalscongressional intent to deprive the agency of power to exempt entities from its own Case: 11-2016 Document: 116 Page: 3 01/07/2013 808818 9 1 Brodsky similarly disposes of any request for a hearing under the APA, whichapplies only to "rule making." 5 U.S.C. § 553(c).

4 regulatory requirements is unpersuasive. The statutory language supports no such inference.Equally unavailing is plaintiffs' suggestion that even if the AEA authorized the NRC to grant exemptions, NRC regulations allowed only a "one-time" exemption in 1980. That contention finds no support in the current regulatory text. See id. 2.Hearing Rights Under the AEA and APA Plaintiffs' contention that the NRC was required to hold a hearing under the AEA andAPA before granting the exemption is foreclosed by our prior decision in this case, Brodskyv. U.S. Nuclear Regulatory Comm'n, 578 F.3d 175 (2d Cir. 2009) ("Brodsky"). In thereconcluding that we lacked subject matter jurisdiction, see id. at 179-84, we necessarilyconcluded that the proceeding granting the exemption in this case was not one for the "granting, suspending, revoking or amending of any license" or "for the issuance or modification of rules and regulations dealing with the activities of licensees," 42 U.S.C.

§ 2239(a); see 28 U.S.C. § 2342(4) (providing that courts of appeals have exclusive appellatejurisdiction over orders reviewable under 42 U.

S.C. § 2239). As such proceedings are theonly ones for which the AEA grants the right to a hearing, see 42 U.S.C. § 2239(a); Brodsky

,578 F.3d at 180 (recognizing that § 2239(a) both defines proceedings over which courts of appeals have direct jurisdiction and proceedings with hearing rights), plaintiffs' hearing challenge under the AEA is meritless.

1 Case: 11-2016 Document: 116 Page: 4 01/07/2013 808818 9 5Plaintiffs argue on appeal that Brodsky specifically reserved the question of a rightto a hearing, see 578 F.3d at 183-84, and that anything Brodsky said on the subject was tiedto its strict construction of jurisdictional provisions, see id. at 180, pursuant to a canon ofinterpretation not applicable here. The points merit little discussion. Even if this court would have lacked jurisdiction to answer a stand-alone question as to plaintiffs' right to a hearing,it certainly had jurisdiction to decide its jurisdiction, and the conclusion that plaintiffs have no right to a hearing remains a necessary consequence of that jurisdictional decision. Section 2239(a) does not envision the possibility that some proceedings may fall within its ambit for hearing rights but not for jurisdictional purposes. Cf. Clark v. Martinez, 543 U.S. 371, 380(2005) (concluding that where canon of constitutional avoidance mandates one construction of statute, that construction must prevail even when no such constitutional concerns arepresent). Accordingly, we affirm the grant of summary judgment to defendants on plaintiffs'

hearing challenge under the AEA.

3.Compliance with Regulations Plaintiffs contend that the NRC failed ade quately to support its findings that (1) thegrant of the exemption was (a) "authorized by law" and (b) "consistent with the common defense and security," and (2) special circumstances are present. 10 C.F.R. § 50.12. Therecord defeats these arguments.

First, we do not read 10 C.F.R. § 50.12, which mandates simply that the grant of anexemption be "authorized by law," to require the NRC to provide a detailed explanation as to why a grant is consistent with the provisions of the AEA, APA, or NEPA. To the extent Case: 11-2016 Document: 116 Page: 5 01/07/2013 808818 9 6plaintiffs allege that the exemption does not comport with any of these statutes, we addressthose particular contentions separately. But insofar as the NRC generally considered whetherany law prohibited granting the exemption and concluded that none did, we hold that no more was required by § 50.12.Second, plaintiffs' contention that the NRC failed to justify the challenged exemptionas "consistent with the common defense and security" is in some tension with theirconcession that the NRC developed at least a facial basis for its finding that the exemption presented no "undue risk to the public health and safety." 10 C.F.R. § 50.12. Plaintiffs'speculation that a terrorist attack would disable more firefighting personnel than would a significant fire, thus making increased reliance on manual fire suppression unsafe, is insufficient to demonstrate that the agency's defense-and-security finding was arbitrary and capricious. Insofar as the NRC concluded the "change to the plant requirements for thespecific configuration in this fire zone" resulting from the exemption bore "no relation to security issues," J.A. 515, the agency is much better situated than is this court to make sucha finding on the record presented, see Natural Res. Def. Council v. U.S. EPA , 658 F.3d 200,215 (2d Cir. 2011) (reiterating that we will not "substitute [our] judgment for that of theagency" (internal quotation marks omitted)). Third, plaintiffs' challenge to the special-circumstances finding rests solely on theNRC's purported consideration of a document not in the record, Entergy's "Fire Hazards Analysis." The point merits little discussion. After considering at length the propriety of granting the exemption, the NRC referred to its consideration of "the information in the Case: 11-2016 Document: 116 Page: 6 01/07/2013 808818 9 7licensee's Fire Hazards Analysis" only in passing. J.A. 515 (emphasis added). Thus, weunderstand the NRC simply to have noted that it considered the information submitted by the licensee relating to its analysis of fire hazards, information that plaintiffs do not dispute was in the record.

4.Challenges to the NRC's Creation and Consideration of the RecordPlaintiffs fault the NRC for limiting the administrative record and failing to consider23 documents in its possession. We disagree that these documents should have been added to the administrative record simply because they "'might have influenced'" the decision.

Appellants' Br. 32 (quoting National Courier Ass'n v. Bd. of Governors of Fed. Reserve Sys., 516 F.2d 1229, 1241 (D.C. Cir. 1975)). The administrative record is what was"compiled by th[e] agency when it made the decision." National Audubon Soc'y v.Hoffman, 132 F.3d 7, 14 (2d Cir. 1997); see Fed. R. App. P. 16(a)(3) (noting record onreview of agency order comprises "the pleadings, evidence, and other parts of the proceedings before the agency" (emphasis added)). That the agency compiled the record inthis case after this litigation commenced does not alter the presumption that the agency has properly discharged this function. See Estate of Landers v. Leavitt , 545 F.3d 98, 113 (2d Cir.2008) (referring to "'presumption of honesty and integrity in those serving as agency adjudicators'" (alterations omitted) (quoting Withrow v. Larkin , 421 U.S. 35, 47 (1975))).More fatal to plaintiffs' claim, they have not shown that these documents are in factrelevant or probative. Plaintiffs did not present the documents at issue for review by the Case: 11-2016 Document: 116 Page: 7 01/07/2013 808818 9 2 Indeed, in the district court, the parties introduced only the administrative record andplaintiffs acquiesced in the district court's decision to convert the government's motion to dismiss to a motion for summary judgment.

8district court, 2 nor do they include them in the record on appeal for consideration by thiscourt. See generally National Audubon Soc'y v. Hoffman, 132 F.3d at 14-15 (recognizingthat reviewing court may sometimes consider materials outside administrative record "to determine that the information available to the decisionmaker includes an adequate discussion of . . . effects [of] and alternatives" to agency action). We afford deference to theagency's determination that the record represents the documents it needed to consider to evaluate the exemption. See Natural Res. Def. Council v. U.S. EPA , 658 F.3d at 215.5.The Need for an Environmental Impact Statement Under NEPAPlaintiffs contend that the NRC erred in failing to produce an environmental impactstatement ("EIS") under NEPA, instead producing only an environmental assessment ("EA")and a finding of no significant impact ("FONSI"). We disagree."Judicial review of agency decisions regarding whether an EIS is needed is essentiallyprocedural," Friends of Ompompanoosuc v. FERC, 968 F.2d 1549, 1556 (2d Cir. 1992), and"the decision not to prepare an EIS is left to the informed discretion of the agency proposing the action," City of New York v. Slater, 145 F.3d 568, 571 (2d Cir. 1998). "[A] reviewingcourt must ensure that [the agency] has taken a 'hard look' at the environmental consequences and assess whether the agency has convincingly documented its determination of no significant impact." Friends of Ompompanoosuc v. FERC , 968 F.2d at 1556.

Case: 11-2016 Document: 116 Page: 8 01/07/2013 808818 9 9The NRC's EA and FONSI satisfy the agency's minimal burden to justify forgoingthe EIS. The EA contains extended discussion of why the exemption does not create any fire safety risk, examines whether this exemption would have any other adverse environmental effect, and considers the alternative of not granting the exemption (and thereby requiringcompliance).

The NRC was not required to say more. See id. at 1558 (observing that "rangeof alternatives an agency must consider is narrower when, as here, the agency has found thata project will not have a significant environmental impact").

6.Conclusion We have considered plaintiffs' remaining arguments and, with the exception of thepublic participation challenge under NEPA addressed in our related opinion issued today, conclude they are without merit. The judgment of the district court is therefore AFFIRMED

IN PART in accordance with this order.

FOR THE COURT:

CATHERINE O'HAGAN WOLFE, Clerk of Court Case: 11-2016 Document: 116 Page: 9 01/07/2013 808818 9