Complaint For Declaratory Judgement And Injunctive Relief: Richard L. Brodsky v. United States Nuclear Regulatory Commission

Complaint For Declaratory Judgement And Injunctive Relief: Richard L. Brodsky v. United States Nuclear Regulatory Commission

March 17, 2011

Richard L. Brodsky v. United States Nuclear Regulatory Commission


1. This is an action for adjudication, annulment, declaratory judgment and/or for injunctive relief. This action arises under the Constitution and statutes of the United States, including, but not limited to the Atomic Energy Act 42 U.S.C. § 2011 et seq. (“AEA”), the Administrative Procedures Act 5 U.S.C. § 1001 et seq. (“APA”), and the National Environmental Policy Act 42 U.S.C. § 4321 et seq. (“NEPA”), the regulations of the Council on Environmental Quality (“CEQ”), and regulations promulgated pursuant to powers granted by those statutes.

2. This matter arises from a set of illegal acts by the Nuclear Regulatory Commission (“NRC”) which permit Entergy Nuclear Operations, Inc., (“Entergy”) the owner, operator, and licensee of Indian Point Energy Center (“IPEC”) to evade critical safety requirements in violation of law and of the terms and conditions of its license. The NRC has for decades required commercial reactor operators to provide physical insulation against fire for electric cables that control and the consequent massive release of radiation. The insulation is required to last for at least one hour. On September 28, 2007 the NRC, illegally and in complete secrecy permitted IPEC to permanently operate with physical insulation that lasts only 24 minutes. That permission took the form of an “exemption” from the one hour requirement. The laws governing the NRC, notably the AEA, do not mention or grant to the NRC the power to issue an “exemption,” to such a license condition, or safety and/or regulatory standard. The “exemption” was illegally granted in complete secrecy with no public notice, no opportunity for public comment, no opportunity to offer or question evidence, no public hearing, in violation of the NRC's own procedural requirements, and in violation of the AEA, APA, NEPA and their duly promulgated regulations. As a result of these actions, IPEC is not in compliance with the terms and conditions of its license and the laws and regulations governing commercial nuclear reactors and is now operating with a greatly enhanced danger to the public. Furthermore, the NRC currently has before it dozens of requests for additional illegal “exemptions” from important health and safety requirements at IPEC and elsewhere, which have the same legal and public health and safety defects as the September 28, 2007 “exemption.”

3. On or about October 4, 2007, without any prior public notification, public hearings, or any opportunity for public participation, the NRC, via a final order, granted to Entergy the licensee of the nuclear reactor Unit 3 at IPEC an “exemption” from a binding, duly promulgated NRC fire safety regulation 10 C.F.R. pt. 50, App. R, III-(G)(2)(a),(c) (“Appendix R”) concerning insulation on critical electrical safety cables, which control reactor shutdown in an emergency, thereby avoiding a core meltdown and massive public release of radiation. Upon discovering this, on December 3, 2007 Plaintiffs filed a petition with the NRC objecting to the “exemption,” and to the secretive and arbitrary process used by the NRC to grant it. On January 30, 2008 the NRC rejected that Petition, which constituted a final order of the Commission.

4. On March 27, 2008 Plaintiffs filed a petition with the United States Court of Appeals, which possesses original jurisdiction over final orders of the NRC pursuant to the Hobbs Act 28 U.S.C. § 2342(4), appealing from the NRC’s rejection of their objection and asserting a variety of factual and legal grounds for judicial annulment of the “exemption.”    On August 27, 2009, the Second Circuit dismissed the Petition on the grounds that the Hobbs Act did not impart jurisdiction to that court. The ruling also stated that Petitioners were free to seek review of the NRC’s “exemption” in federal district court, under jurisdiction granted by the APA. “Petitioners are free to seek review in the district court of the NRC’s actions pursuant to the APA” Brodsky v. NRC August 27, 2009, 08-1454.

5. Plaintiffs now seek such judicial review in this district court. Plaintiffs seek judgment ruling that the “exemption” itself, the procedures used and the substance of the NRC’s decision violate the Constitution and laws of the United States and regulations promulgated thereto, and injunctive relief with respect to similar, pending NRC “exemption.”

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