Court curbs secret NRC ‘exemptions’ at Indian Point
A federal court has upheld a challenge to the Nuclear Regulatory Commission’s practice of issuing “exemptions” to its own health and safety regulations at Indian Point, and doing so in complete secrecy.
The plaintiffs, including the Atlantic Chapter of the Sierra Club and former Assembly member Richard Brodsky, argued that federal law requires the NRC to notify and involve the public before it allows Indian Point nuclear power plant operator Entergy to violate NRC health and safety requirements. The United States 2nd Circuit Court of Appeals agreed with the plaintiffs, and expressed grave concern about the NRC’s ongoing practice of making safety decisions in secret.
The Appeals Court remanded the case to the District Court and required the NRC to appear and explain why public participation was “inappropriate or impracticable.”
From now on the NRC must permit public participation or explain why it’s not going to do so. This is a substantial victory because there are hundreds, if not thousands, of such secret “exemptions” at Indian Point and at other reactors across the country which have weakened or evaded safety and health requirements. It’s now possible to seek an accounting of those “exemptions” and challenge many of them.
The particular Indian Point “exemption” challenged in Brodsky v. NRC dealt with fire safety. NRC rules require that the electric cables that control reactor shutdown in an emergency have fire insulation that lasts one hour. When tested, the insulation at Indian Point (and elsewhere) lasted 27 minutes. Rather than require Entergy to upgrade the insulation, the NRC, at Entergy’s request, issued an “exemption” that lowered the requirement to 24 minutes. It did so without notifying the public of its consideration of Entergy’s application, or permitting the public to comment, or participate, or attend a public hearing.
By ending the secrecy of the “exemption” process the Court has created two important dynamics. First, it will be difficult if not impossible for the NRC to continue to use secrecy as a shield for decisions that are at best controversial and at worst truly dangerous. Second, we can begin to examine the true extent of “exemptions” at Indian Point and scores of other reactors. Both are important parts of making the NRC a fair and effective regulator.
The coalition that brought the litigation included the Atlantic Chapter, particularly Annie Wilson, and Westchester’s Citizens Awareness Network (Westcan), whose steadiness and support were crucial. The plaintiffs appreciate the intervention of then-Attorney General Andrew Cuomo, whose early concern about this issue was noted by the Court.
Environmental activist Robert F. Kennedy said, “This 2nd Circuit decision in Brodsky v. NRC is a turning point in our long-running struggle to end the collusion between the NRC and the nuclear industry... Our primary concern has always been public health and safety, nowhere more important than with an Indian Point reactor with the worst health and safety record in the nation and located 28 miles from New York City.”
ADK paddlers affirm right to cross private land
by Charles C. Morrison
In a case that strengthens the right of recreational paddlers to cross private property, a state court has dismissed a suit against an Adirondack conservation magazine editor who asserted his right to paddle a route that links two lakes.
In Friends of Thayer Lake & Brandreth Park Association, et al. v. Phil Brown, the State of New York & NYS Department of Environmental Conservation, New York Supreme Court Justice Richard T. Aulisi has declared that the Shingle Shanty Brook-Mud Pond waterway is navigable under New York State’s common law.
The trespass claim against Adirondack Explorer editor Phil Brown and requests by Brandreth Park for damages were dismissed. This was a major victory for Brown as well as for DEC and Attorney General Eric Schneiderman. It is also an important victory for the Sierra Club.
Aulisi’s decision relied primarily on the common law standard for navigability set in 1998 by New York’s highest court, the Court of Appeals, in the landmark case, Adirondack League Club v. Sierra Club. That case was triggered in June, 1991, when five paddlers, led by Tom Kligerman, then co-chair of the Atlantic Chapter’s Adirondack Committee, went down the South Branch of the Moose River.
Their case reaffirmed the navigability standard that the waterway in question has “practical utility as a highway for transportation or travel.” It placed recreational travel on an even level with commercial use in applying this test.
Shingle Shanty Brook-Mud Pond is the link on Brandreth Park land between one part of the Whitney Wilderness Area (Lake Lila) and another part (Little Tupper Lake), in the Adirondack Forest Preserve. By the 1990s, when Little Tupper Lake was acquired from the Whitney family (Lake Lila was acquired in the 1970s) Brandreth Park’s illegal blockage of this waterway with a cable and no trespass signs had become one of the most notorious in the Adirondack Park—and it only got worse.
Working with this writer, John Humbach (of Pace University Law School) and others, Phil Brown developed a strong interest in this issue. Deciding to challenge Brandreth directly, in May, 2009, he paddled through the blocked segment of the waterway and then described his trip in the next issue of Adirondack Explorer.
In August, 2009, the Atlantic Chapter’s Adirondack Committee sent an extensively documented letter of complaint to then-Attorney General Andrew Cuomo and then-DEC Commissioner Pete Grannis, saying that by blocking a public right-of-way that was clearly navigable (as shown by the many people who had paddled the route), Brandreth Park had created a public nuisance and had usurped State property rights by claiming as its own the navigational easement that is held in trust by the State for the public.
The DEC responded admirably. After determining Shingle Shanty- Mud Pond route is navigable, it offered Brandreth Park a compromise, which it refused.
It is too early to tell if Brandreth Park will appeal, but Judge Aulisi did not leave much room for that. The decision’s main effect, coming after Adirondack League Club v. Sierra Club and further clarification of the law, may be to dampen the enthusiasm of other landowners for creating illegal blockages.
Charles C. Morrison is a member of the Chapter’s Adirondack Committee and retired as a planning director in the NYS Department