“Last year the Nuclear Regulatory Commission granted a request from Entergy that allowed the utility company to change the type of fire safety protection used at their Indian Point Nuclear power plants to a material that resists fire for a shorter amount of time. The request was granted as an “exemption” from Entergy’s operating license.

On Monday, May 11, a case arguing that the NRC lacked the authority to grant the exemption was heard at the United States Court of Appeals for the Second Circuit in New York City. Arguing against the NRC was Assemblyman Richard Brodsky (D-Westchester) and New York State Assistant Attorney General John Sipos.

Granting an exemption does not require public input but a public hearing is required when amending a power plant’s operating license. Brodsky and Sipos argued that the regulatory agency mischaracterized the request as an “exemption” rather than an amendment to the license and the NRC “failed to consider relevant evidence in making its decision.”

At the crux of the case was the impact of reducing the fire safety protection at Indian Point. If a fire broke out at the plant the new fire resistant materials lasting 24 minutes as a barrier to a blaze, would not be enough time to catch a fire especially with current inspections scheduled every hour, Sipos and Brodsky argued during the proceeding that lasted over an hour. They also argued the dangerous consequences of fires in electrical junction boxes carrying 480 volts of power to cables that control safe, emergency shut downs, if needed.

NRC attorney Robert Rader held that the NRC staff determined there was “reasonable assurance that the fire-protection measures approved by the exemptions would control any credible blaze in affected areas at Indian Point.” Rader held that the agency’s rules for granting an exemption are spelled out in the Atomic Energy Act as part of the “comprehensive regulatory framework” and the “ongoing review of nuclear power plants located in the United States.”

The NRC claimed that using lower quality fire barriers have been allowed at many other plants in the country and have granted ‘exemptions’ to certain fire safety standards over the last 8 years.

Yesterday’s hearing marks the first time the NRC’s right to grant these exemptions without alerting the public has been challenged. Of the three judges hearing the argument was the Honorable Sonia Sotomayor who is widely rumored to be on Obama’s list of choices for the Supreme Court. It is unclear when the judges will rule on the case.

Posted by Abby Luby – Journalist at Wednesday, May 13, 2009“