Plaintiffs' Memo Of Law In Opposition To Government's Motion To Dismiss Or For Summary Judgement: Brodsky v. United States Nuclear Regulatory Commission

Plaintiffs' Memo Of Law In Opposition To Government's Motion To Dismiss Or For Summary Judgement: Brodsky v. United States Nuclear Regulatory Commission

March 17, 2011
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Richard L. Brodsky v. United States Nuclear Regulatory Commission

PRELIMINARY STATEMENT

Plaintiffs New York State Assemblyman Richard L. Brodsky for the 92nd District, Westchester Citizens Awareness Network, Public Health and Sustainable Energy and Sierra Club - Atlantic Chapter (“Plaintiffs”) respectfully submit this memorandum of law in opposition to the Defendant United States Nuclear Regulatory Commission (hereinafter “Defendant” or “Commission” or “NRC”) motion to dismiss the complaint or for summary judgment in the above referenced action (the “NRC Motion to Dismiss” or the “Brief”).

BACKGROUND

A. FACTUAL HISTORY

Plaintiffs rely on the Statement of Facts set forth in Plaintiffs Complaint for Declaratory Judgment and Injunctive Relief dated December 30, 2009. Plaintiffs offer the following as areas of particular disagreement with the “Factual History” contained in the NRC Motion to Dismiss.

1. THE NRC MISSTATES THE LEGAL BASIS OF APPENDIX R

The NRC misleadingly says the Appendix R fire safety regulations "require 'defense-in-depth' measures."1    Not so. Appendix R contains specific, ironclad requirements for, among other things, the amount of time that insulation on the cables that control reactor shutdown must survive. That specific time requirement is one hour. The Indian Point (“IP” or “IP3”) "exemption" excuses licensee Entergy Nuclear Operations, Inc. (“Entergy”) from compliance with that requirement. While every regulation has a purpose the NRC misleadingly and dangerously conflates purpose with its requirements. This is not the only time the NRC attempts to change the discussion about Appendix R from the specific regulatory requirements which the “exemption” abrogated to a broad, philosophical debate. This change in basis can be seen in the NRC’s limited analysis of the Entergy "exemption" request when the NRC admittedly and illegally changed its method of analysis from objective inquiry to subjective inquiry. The NRC repeatededly asserts that certain events are "credible" without ever explaining the basis of such a credibility conclusion. In its analysis of the likely success of the reduced fire safety standard the NRC states that "a credible fire" in the affected areas of Indian Point 3 "will be limited in severity and would not challenge the 24 or 30 minute barriers." There is no discussion or definition of what constitutes a “credible” or “incredible” fire. This sweeping, unsupported assertion is completely incompatible with the NRC's own fire safety standards (J.A. 508)2. Appendix R is not based on a "credibility standard", it is objective and deterministic (e.g., it is ultimately determined by the external causes of a fire event). The NRC is required by Appendix R to assume a fire in the area, then show by design and analysis that the plant meets the standards. Instead of applying those objective standards the government is simply taking Entergy's word that there won't be a fire in certain areas.

It must also be noted that the NRC discusses the use of such subjective, performance based fire standards in footnote 17 on page 21 of the NRC Motion to Dismiss. The NRC notes that it added a new subjective and performance based alternative to the Appendix R prescriptive rules, commonly known as the "805 Process." The NRC fails to note that Entergy has refused to avail itself of the 805 Process, because it requires a license amendment and public participation. The only way the NRC can justify the "exemption" is by illegally abandoning the Appendix R requirement for compliance with specific objective standards and attempting to draw the Court into a discussion of the subjective purposes of Appendix R. This is itself grounds for rejecting the IP "exemption".

2. THE NRC’S “FACTUAL HISTORY” CONTAINS STATEMENTS ABOUT NRC ACTION THAT ARE NOT IN THE RECORD

The NRC’s Factual History set forth in the NRC Motion to Dismiss is replete with self-serving testimonial characterizations of the NRC's actions that appear nowhere in the record. These statements include but are not limited to "The NRC performed a detailed safety evaluation," "The NRC carefully evaluated the various contributors...." and "The NRC then evaluated the elements of 'defense-in-depth' requirements...."3    It may be that the NRC did such a careful evaluation, and it may not. But the record before this Court is barren of any such evidence. Only adequate public notice and public participation could have provided assurance that such analytic efforts were made by the NRC. The NRC should not be allowed to supplement the record by unsupported assertions in its Motion to Dismiss.

B. PROCEDURAL HISTORY

Plaintiffs rely on the Procedural History set forth in their Complaint adding only the following clarification: The Second Circuit carefully limited its ruling to a jurisdictional analysis of the Plaintiff's claims. It explicitly stated that it made no determination on the merits of any claim, including the “license amendment” dispute, that might be brought in District Court, as we argue more fully below in Section C.1. on page 11 herein.