A federal appeals court has ruled that the Nuclear Regulatory Commission must either allow more public participation in its decisions about fire safety at the Indian Point 3 nuclear reactor or to show why such input is impractical or inappropriate.
A lawsuit brought by Richard L. Brodsky, a former New York State assemblyman and opponent of Indian Point, involves exemptions granted by the commission from compliance with some fire regulations. Like many reactors around the country, Indian Point installed a fire retardant called Hemyc around critical electric cables in the 1980s to meet a rule that the cables had to be safe from fire for one hour. But the material turned out to be nowhere near as fire-resistant as advertised.
In granting the exemption, the regulatory commission cut the amount of time that the retardant would have to be effective to a level that the plant could meet. Critics said this was unsafe, but the agency said it had re-analyzed the amount of time the substance actually needed to work to ensure safety.
The commission has also been struggling to modernize its fire protection regulations rather than giving so many case-by-case exemptions from its rules. And it has sometimes ruled that the plant?s owner, Entergy, has not done enough to assure fire safety.
The decision by the Court of Appeals for the Second Circuit, dated Monday and disseminated Tuesday, did not pass judgment on whether the commission?s decisions had been correct. In fact, ?we conclude that the plaintiffs? challenges to the N.R.C.?s grant for an exemption to Entergy from certain fire safety regulations in the operation of its Indian Point 3 nuclear power plant are generally without merit,?? it wrote.
Nonetheless, the appeals panel sent the case back to a lower court with instructions to have the commission ?supplement the administrative record to explain why allowing public input into the exemption request was inappropriate or impracticable,? or to ?take such other action as it may deem appropriate to resolve this issue.??
The commission had argued that if members of the public did not like the decision, they could always appeal it. But the appeals court said that the National Environmental Policy Act, which requires environmental impact statements and other steps to assure public participation in policy, seemed to require public input before a decision was made. That is, unless the commission can show why this is not the case.
A spokesman for the commission, Neil Sheehan, said it had not decided whether to appeal.
In a telephone interview, Mr. Brodsky declared victory. ?Now the burden isn?t on the public to show why they need to be part of the exemption process,?? he said. ?The burden is on the N.R.C. to show why they shouldn?t be. ??
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