Brodsky v. U.S. Nuclear Regulatory Commission, No. 08-1454 (2d Cir. 2009)

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08-1454-ag Brodsky v. U.S. Nuclear Regulatory Commission 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2008 Decided: August 27, 2009) Docket No. 08-1454-ag -----------------------------------------------------x (Argued: RICHARD L. BRODSKY, New York State Assemblyman, from the 92nd Assembly District in his official and individual capacities, WESTCHESTER CITIZEN S AWARENESS NETWORK (WESTCAN), ROCKLAND COUNTY CONSERVATION ASSOCIATION, INC. (RCCA), PUBLIC HEALTH AND SUSTAINABLE ENERGY (PHASE), and SIERRA CLUB ATLANTIC CHAPTER (SIERRA CLUB), Petitioners, -- v. -U.S. NUCLEAR REGULATORY COMMISSION, Respondent, ENTERGY NUCLEAR OPERATIONS, INC., Intervenor. -----------------------------------------------------x B e f o r e : 34 35 May 11, 2009 WALKER and WALLACE,* Circuit Judges.** Pursuant to the Hobbs Act, Petitioners seek review of a final order of the U.S. Nuclear Regulatory Commission, granting 1 2 * 1 2 3 4 5 ** The Honorable J. Clifford Wallace, of the United States Court of Appeals for the Ninth Circuit, sitting by designation. The Honorable Sonia Sotomayor, originally a member of the panel, was elevated to the Supreme Court on August 8, 2009. The two remaining members of the panel, who are in agreement, have determined the matter. See 28 U.S.C. § 46(d); Local Rule 0.14(2); United States v. Desimone, 140 F.3d 457 (2d Cir. 1998). -1- 1 an exemption from certain fire safety regulations to Entergy 2 Nuclear Operations, Inc., the operator of Indian Point nuclear 3 power plant in Buchanan, NY. 4 under the Hobbs Act to review exemptions. 5 the order being challenged is indeed an exemption, and not 6 actually an amendment or other order covered by the Hobbs Act. 7 DISMISSED without prejudice for want of jurisdiction. We hold that we lack jurisdiction 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 We also conclude that RICHARD L. BRODSKY, Albany, NY, for Petitioners. ROBERT M. RADER, Senior Attorney, (Karen D. Cyr, General Counsel, John F. Cordes, Jr., Solicitor, on the brief), Office of the General Counsel, U.S. Nuclear Regulatory Commission, John Cruden, Acting Assistant Attorney General, Ellen Durkee, Trial Attorney, Appellate Section, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, for Respondent. MICHAEL B. WALLACE, (Paul E. Barnes, on the brief), Wise Carter Child & Caraway, P.A., Jackson, MS, for Intervenor. JOHN J. SIPOS, Assistant Attorney General, (Barbara D. Underwood, Solicitor General, Katherine Kennedy, Special Deputy Attorney General, Michelle Aronowitz, Deputy Solicitor General, Janice A. Dean, Assistant Attorney General, Monica Wagner, -2- 1 2 3 4 5 6 7 8 9 Assistant Solicitor General, on the brief), for Andrew M. Cuomo, Attorney General of the State of New York, New York, NY, for Amicus Curiae New York State. JOHN M. WALKER, JR., Circuit Judge: This case tests the limits of our jurisdiction under the 10 Hobbs Act to review orders of the U.S. Nuclear Regulatory 11 Commission ( NRC or Commission ). 12 agency that licenses and regulates all nuclear power plants in 13 the United States, including the Indian Point Energy Center 14 ( Indian Point ) in Buchanan, NY, operated by Entergy Nuclear 15 Operations, Inc. ( Entergy ). 16 which gives the NRC its authority, requires the Commission to 17 hold hearings before taking certain actions, such as granting or 18 amending a license. 19 that the NRC violated this hearing requirement when granting 20 Indian Point an exemption from a fire safety regulation with 21 which it was out of compliance. 22 apart from the hearing requirement, the exemption is an invalid 23 exercise of the NRC s authority. 24 The NRC is the federal The Atomic Energy Act ( AEA ), Petitioners Richard Brodsky et al. contend Petitioners also argue that, Petitioners filed their action in this court pursuant to the 25 Hobbs Act, which vests the courts of appeals with exclusive 26 jurisdiction over NRC orders made reviewable by the AEA. 27 hold, however, that the Hobbs Act does not give us jurisdiction -3- We 1 over NRC exemptions. 2 challenged by Petitioners is indeed an exemption, and not an 3 amendment or other type of NRC order within the ambit of the 4 Hobbs Act. 5 prejudice for lack of jurisdiction. Accordingly, we dismiss the petition without BACKGROUND 6 7 We also conclude that the order being Indian Point, like all nuclear power plants, is licensed and 8 regulated by the NRC, pursuant to the AEA. 9 that, when granting a license, the NRC determine that a plant s 10 operation is in accord with the common defense and security and 11 will provide adequate protection to the health and safety of the 12 public. 13 shall be subject to amendment, revision, or modification . . . by 14 reason of rules and regulations issued [by the NRC] in accordance 15 with [the Act]. 16 17 42 U.S.C. § 2232(a). The AEA requires Under the AEA, all licenses Id. § 2237. The AEA also mandates that the NRC hold hearings, if requested, when taking certain license-related actions: 18 19 20 21 22 23 24 Id. § 2239(a)(1)(A). 25 regulations requiring a public notice-and-comment period to 26 precede any amendments to a license. 27 In any proceeding . . . for the granting, suspending, revoking, or amending of any license[,] . . . the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding. Additionally, the NRC has promulgated See 10 C.F.R. § 50.91(a). NRC regulations also permit the agency to grant exemptions -4- 1 from the requirements of the regulations, as long as (1) the 2 exemptions are [a]uthorized by law, will not present an undue 3 risk to the public health and safety, and are consistent with the 4 common defense and security, and (2) special circumstances are 5 present. 6 potential special circumstances, any of which can justify an 7 exemption. 8 not require the NRC to hold hearings for exemptions. 9 10 C.F.R. § 50.12(a). The regulations set out six See id. § 50.12(a)(2)(i)-(vi).1 The regulations do In 1980, the NRC adopted fire safety regulations in response 10 to a nearly catastrophic fire five years earlier at the Browns 11 Ferry power plant. 12 plants to use fire barriers to protect the electrical cables that 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 The regulations, inter alia, required nuclear Special circumstances are present whenever : (i) Application of the regulation in the particular circumstances conflicts with other rules or requirements of the Commission; or (ii) Application of the regulation in the particular circumstances would not serve the underlying purpose of the rule or is not necessary to achieve the underlying purpose of the rule; or (iii) Compliance would result in undue hardship or other costs that are significantly in excess of those contemplated when the regulation was adopted, or that are significantly in excess of those incurred by others similarly situated; or (iv) The exemption would result in benefit to the public health and safety that compensates for any decrease in safety that may result from the grant of the exemption; or (v) The exemption would provide only temporary relief from the applicable regulation and the licensee or applicant has made good faith efforts to comply with the regulation; or (vi) There is present any other material circumstance not considered when the regulation was adopted for which it would be in the public interest to grant an exemption. 10 C.F.R. § 50.12(a)(2). -5- 1 power the plants shutdown systems. See Fire Protection Program 2 for Operating Nuclear Power Plants, 45 Fed. Reg. 76,602, 76,608 3 (Nov. 19, 1980). 4 barriers would improve a plant s ability to shut down its 5 reactors safely after a fire had started. 6 mandated that the barriers should be able to withstand a fire for 7 at least one hour, and longer if the plant does not have 8 automatic sprinklers installed. By shielding these electrical systems, the The regulations See id. 9 In 1984, the NRC granted Indian Point several exemptions 10 from compliance with certain of the fire protection program s 11 requirements. 12 using a popular fire barrier called Hemyc, which was rated for 13 one hour of protection. 14 that Hemyc, despite its one-hour rating, could actually withstand 15 a fire for only 27 to 49 minutes. 16 Point and all other licensees to confirm compliance with the 17 existing applicable regulatory requirements in light of this 18 newfound problem. 19 appropriate compensatory measures and develop plans to resolve 20 any nonconformances. 21 licensee so that it could determine whether a facility license 22 should be modified, suspended, or revoked, or whether other 23 action should be taken. 24 In doing so, the agency noted that the plant was However, in 2005, the NRC discovered The agency required Indian Licensees were directed to implement The NRC asked for a response from each In June 2006, Entergy alerted the NRC to potentially -6- 1 noncompliant Hemyc barriers at Indian Point. 2 it could not meet NRC standards, but that it had implemented 3 hourly fire watch tours and other compensatory measures. 4 Entergy asked the NRC to issue Indian Point a revised exemption 5 to reflect a thirty-minute fire resistance rating, in lieu of the 6 one-hour rating, for two [f]ire [a]reas at the plant. 7 August 2007, Entergy amended its request to ask that one of the 8 two fire areas be rated for 24 minutes. 9 Entergy stated that In On September 24, 2007, pursuant to the National 10 Environmental Policy Act ( NEPA ), 42 U.S.C. §§ 4321-4347, the 11 NRC issued an environmental assessment ( EA ) finding that 12 Entergy s requested exemption would not significantly impact the 13 environment. 14 exemption, which was published in the Federal Register on October 15 4, 2007. 16 (Oct. 4, 2007). 17 explained that, given the existing fire protection features in 18 the affected fire zones, [Entergy] continues to meet the 19 underlying purpose of the fire protection program. 20 56,799. Four days later, the NRC granted the revised Revision to Existing Exemptions, 72 Fed. Reg. 56,798 In approving Entergy s request, the agency Id. at 21 On December 3, 2007, Petitioners wrote to the NRC objecting 22 to the agency s grant of an exemption . . . in an amendment to 23 the Indian Point license. 24 the matter, grant them leave to intervene, and hold a public Petitioners asked the agency to reopen -7- 1 hearing. 2 petition solely as a request for a hearing. 3 that Petitioners were challenging . . . an exemption from NRC 4 regulations[,] . . . not a license amendment as asserted in [the] 5 petition. 6 hearings on exemptions from NRC regulations and denied the 7 request. 8 9 The NRC responded on January 30, 2008, treating the The agency explained The agency stated that the AEA does not provide for On March 27, 2008, Petitioners filed the instant petition in this court, seeking review of the NRC s order denying their 10 December 3 petition. 11 exemption fails, among other things, to provide reasonable 12 assurance of adequate protection of the health and safety of the 13 public as required by law under the [AEA]. 14 argues that the NRC violated the AEA, NEPA, Administrative 15 Procedures Act ( APA ), and various regulations by granting the 16 exemption, and that the agency acted arbitrarily and abused its 17 discretion in granting the exemption. 18 we vacate the exemption and remand for a public hearing on the 19 matter. 20 Petitioners contend that the September 28 The petition also Petitioners request that The NRC moved to dismiss the petition, arguing that 21 Petitioners challenges to the September 28 exemption were 22 untimely, and that the agency s January 30 order should be 23 summarily affirmed because exemptions do not warrant hearings 24 under NRC regulations. A previous panel of this court referred -8- 1 the motion to us. See Brodsky v. U.S. Nuclear Regulatory Comm n, 2 No. 08-1454-ag (2d Cir. July 7, 2008). 3 that and two other motions. DISCUSSION 4 5 We reserved decision on I. 6 Whether We Have Jurisdiction Over Exemptions Pursuant to the Hobbs Act, Petitioners have challenged the 7 NRC s actions directly in this court without first filing in a 8 district court. 9 jurisdiction to enjoin, set aside, suspend (in whole or in part), The Act gives the courts of appeals exclusive 10 or to determine the validity of . . . all final orders of the 11 [NRC] made reviewable by section 2239 of title 42. 12 2342(4).2 13 order entered in any proceeding of the kind specified in [§ 14 2239(a)]. 15 part, encompasses any proceeding . . . for the granting, 16 suspending, revoking, or amending of any license. 17 the scope of our jurisdiction under the Hobbs Act, § 2239(a) does 18 not mention exemptions. 19 28 U.S.C. § Section 2239, in turn, makes reviewable [a]ny final 42 U.S.C. § 2239(b)(1). And § 2239(a), in relevant In defining The NRC contends that the Hobbs Act should nonetheless apply 20 to exemptions because of the Supreme Court s decision in Florida 21 Power & Light Co. v. Lorion, 470 U.S. 729 (1985). 1 2 3 4 5 6 2 Lorion sheds The Hobbs Act actually refers to the Atomic Energy Commission ( AEC ), not the NRC, but the AEC has been abolished. 42 U.S.C. § 5814. The AEC s functions (including licensing) have largely been transferred to the NRC, and NRC orders entered pursuant to those functions are reviewable as if entered by the AEC. See 42 U.S.C. §§ 5841(f), 5871(g); Gen. Atomics v. U.S. Nuclear Regulatory Comm n, 75 F.3d 536, 538 n.2 (9th Cir. 1996). -9- 1 light on how § 2239(a) operates. Section 2239(a) serves multiple 2 ends: 3 courts of appeals, it also dictates when the NRC must hold 4 hearings. 5 may not coexist in particular instances. 6 respect to license amendments, § 2239(a) gives the courts of 7 appeals the exclusive jurisdiction to review an amendment and 8 simultaneously compels the NRC to hold a hearing (if requested) 9 before issuing an amendment. In addition to establishing Hobbs Act jurisdiction in the 42 U.S.C. § 2239(a)(1)(A). See id. These two purposes may or For example, with Lorion tells us, however, 10 that the jurisdictional element and hearing requirement of 11 § 2239(a) are not coextensive, because we have Hobbs Act 12 jurisdiction over all final orders in licensing proceedings 13 whether or not a hearing before the Commission occurred or could 14 have occurred. 3 15 this distinction between § 2239(a) s two elements establishes 16 that we have Hobbs Act jurisdiction over exemptions even though, 17 under § 2239(a), exemptions do not require hearings. 18 disagree. 19 Lorion, 470 U.S. at 737. The NRC argues that We In separating § 2239(a) s hearing requirement from the 20 provision s jurisdictional component, Lorion did not alter the 21 basis for jurisdiction pursuant to that section: we have 22 jurisdiction over only an appeal from an order issued in a 1 2 3 4 3 For instance, the Lorion Court noted that we have Hobbs Act jurisdiction over final orders in summary proceedings and informal NRC rulemaking, even though hearings may be unavailable with respect to each. See 470 U.S. at 742 & n.10. -10- 1 proceeding . . . for the granting, suspending, revoking, or 2 amending of any license. 3 2239(a)(1)) (ellipsis in original). 4 commanded strict fidelity to the[] terms of judicial review 5 provisions that create jurisdiction, such as those contained in 6 the Hobbs Act. 7 plain text of § 2239(a) does not confer appellate jurisdiction 8 over final orders issued in proceedings involving exemptions, 9 irrespective of any hearing requirement. 10 Id. at 735 (quoting 42 U.S.C. § The Supreme Court has Stone v. INS, 514 U.S. 386, 405 (1995). Lorion s facts are instructive on this point. The Lorion 11 specifically held that the Hobbs Act gives the courts of appeals 12 exclusive jurisdiction to review the NRC s denial of a citizen 13 petition without a hearing. 14 the Hobbs Act similarly applies to an appeal from a final order 15 granting an exemption without a hearing. 16 is a request to institute a proceeding . . . to modify, suspend, 17 or revoke a license. 18 The petition is but the first step in a process that will, if 19 not terminated for any reason, culminate in a full formal 20 proceeding under 42 U.S.C. § 2239(a)(1). 21 745 n.11. 22 Id. at 746. The NRC suggests that But a citizen petition 10 C.F.R. § 2.206(a) (emphasis added). Lorion, 470 U.S. at In contrast, the NRC contends that an exemption is distinct 23 from the granting, suspending, revoking, or amending of a 24 license. We think this is a reasonable interpretation of the -11- 1 Hobbs Act, and one that deserves deference. 2 Inc. v. Natural Resources Def. Council, Inc., 467 U.S. 837 3 (1984). 4 hearings for exemptions; but by asserting that exemptions are 5 different from amendments, a position to which we defer, the NRC 6 necessarily deprives us of the ability to review exemptions 7 pursuant to § 2239(a). 8 9 See Chevron U.S.A., The NRC takes this stance to avoid having to hold There are, of course, policy advantages in finding Hobbs Act jurisdiction over exemptions. Placing initial review of agency 10 action in the courts of appeals improves judicial efficiency. 11 The factfinding capacity of the district court is . . . 12 typically unnecessary to judicial review of agency 13 decisionmaking, and thus proceeding in the district court often 14 adds an unneeded layer of review. 15 These advantages led the Lorion Court to hold that, [a]bsent a 16 firm indication that Congress intended to locate initial APA 17 review of agency action in the district courts, we will not 18 presume that Congress intended to depart from the sound policy of 19 placing initial APA review in the courts of appeals. 20 745. 21 finding that it had Hobbs Act jurisdiction to review NRC rules 22 that, as a textual matter, appear[ed] to fall outside the Act. 23 Citizens Awareness Network, Inc. v. United States, 391 F.3d 338, 24 346-47 (1st Cir. 2004). Lorion, 470 U.S. at 744-45. Id. at The First Circuit gave this policy special weight when But ultimately, policies alone are not -12- 1 dispositive. 2 initially in the courts of appeals must of course be governed by 3 the intent of Congress and not by any views we may have about 4 sound policy. 5 Whether initial subject-matter jurisdiction lies Lorion, 470 U.S. at 746. [T]he plain language of the enacted text is the best 6 indicator of intent. Nixon v. United States, 506 U.S. 224, 232 7 (1993). 8 Hobbs Act jurisdiction in light of the Lorion policies, the 9 statutory text still constrained the court to hold that it could 10 review any NRC action that could be cognizable in a petition for 11 review from a proceeding under section 2239. 12 Network, 391 F.3d at 347 (emphasis added). 13 exemptions into the plain text of § 2239(a), particularly when 14 the NRC itself (to which deference is owed) is urging that 15 exemptions are different from amending . . . [a] license and 16 the other orders mentioned in that section. 17 Mot. to Dismiss at 7 ( An exemption is not a licensing action or 18 rulemaking. ); Resp t s Br. at 39 ( License amendments and post- 19 licensing exemptions are entirely distinct and serve distinct 20 purposes under NRC s regulatory scheme . . . . ). 21 NRC s exemption program has been on the books in some form since 22 1956, see 21 Fed. Reg. 356 (Jan. 19, 1956), and Congress has 23 amended § 2239(a) since then, see Energy Policy Act of 1992, Pub. 24 L. 102-486, 106 Stat. 2776, 3120, but has never included Indeed, when the First Circuit broadly construed its -13- Citizens Awareness Here, we cannot read See, e.g., Resp t s Moreover, the 1 exemptions in the statute s text. 2 evident from the text, that Congress intended to have exemptions 3 treated differently from the orders mentioned in § 2239(a). 4 This reinforces our view, The NRC points out that the First and Sixth Circuits have 5 each reviewed an exemption under the Hobbs Act. In both cases, 6 however, other orders plainly within § 2239(a) s scope were also 7 being challenged. 8 Nuclear Regulatory Commission, 878 F.2d 1516 (1st Cir. 1989), the 9 petitioners appealed not only an NRC exemption, but also a In Commonwealth of Massachusetts v. U.S. 10 citizen petition denial (the subject of Lorion) and a decision 11 allowing a previously shutdown plant to resume operations. 12 at 1519-20. 13 1995), concerned several NRC orders, only one of which was an 14 exemption. 15 exemptions fall under the Hobbs Act. 16 issue was not squarely presented to those courts, which 17 frequently occurs when parties prefer that the court decide an 18 issue despite its potential jurisdictional infirmity, especially 19 when the problem is relevant to only part of the appeal. 20 also possible that the two courts assumed some type of 21 supplemental jurisdiction over the exemption, in light of their 22 undisputed Hobbs Act jurisdiction over the other orders at issue. 23 See Conoco, Inc. v. Skinner, 970 F.2d 1206, 1214 n.10 (3d Cir. 24 1992) ( As long as this court has jurisdiction over one of the Id. Similarly, Kelley v. Selin, 42 F.3d 1501 (6th Cir. Id. at 1503-04. Neither case explained how or why -14- It is possible that the It is 1 challenged regulations, the interests of judicial economy and 2 efficiency allow us to hear the entire matter. ). 3 the extent that Commonwealth of Massachusetts and Kelley are 4 inconsistent with our jurisdictional analysis, we decline to 5 follow them. 6 Regardless, to We therefore hold that we lack jurisdiction under the Hobbs 7 Act to review an NRC exemption. In the absence of jurisdiction, 8 we lack the authority to review not only an NRC order that issues 9 an exemption, but also any orders preliminary or ancillary to 10 an exemption, such as a denial of a hearing request. 11 U.S. at 743 ( [R]eview of orders resolving issues preliminary or 12 ancillary to the core issue in a proceeding should be reviewed in 13 the same forum as the final order resolving the core issue. ). 14 But our inquiry does not end there, because we lack jurisdiction 15 in this case only if the challenged NRC order is indeed an 16 exemption and not an amendment or otherwise within the purview of 17 § 2239, an issue to which we now turn. 18 II. 19 Lorion, 470 Whether the NRC s Order is an Exemption Whether the challenged order is an exemption, as the NRC has 20 labeled it and thus beyond our jurisdiction, or is properly 21 regarded as an amendment and within our Hobbs Act jurisdiction, 22 is itself an issue that is within our jurisdiction. 23 of Pew v. Cardarelli, 527 F.3d 25, 28 (2d Cir. 2008) ( As always, 24 we have jurisdiction to determine our jurisdiction. ). -15- See Estate 1 The particular label placed upon [an order] by [an agency] 2 is not necessarily conclusive, for it is the substance of what 3 the [agency] has purported to do and has done which is decisive. 4 Columbia Broad. Sys., Inc. v. United States, 316 U.S. 407, 416 5 (1942). 6 deference when those labels are reasonable. 7 whether to treat an order as an exemption, applies its 8 regulations governing when exemptions can be granted. 9 C.F.R. § 50.12. Still, the NRC s labels, though not dispositive, deserve The NRC, in deciding See 10 An agency s application of its own regulations 10 is controlling unless plainly erroneous or inconsistent with the 11 regulation[s]. 12 (internal quotation marks omitted); see also Fed. Express Corp. 13 v. Holowecki, 128 S. Ct. 1147, 1155 (2008) ( [T]he agency is 14 entitled to . . . deference when it adopts a reasonable 15 interpretation of regulations it has put in force. ). 16 as an important check on the agency s decisionmaking process, but 17 ultimately the agency s judgment, if reasonable, must prevail. 18 Here, we think the NRC reasonably applied its regulations Auer v. Robbins, 519 U.S. 452, 461 (1997) We serve 19 when it classified the relief granted to Indian Point as an 20 exemption.4 21 concluded that treating the challenged order as an exemption was 22 authorized by law, presented no undue risk to public health and 1 2 3 Consistent with 10 C.F.R. § 50.12, the agency 4 We assume without deciding that the regulations themselves are valid. Although the parties contest the issue, our lack of jurisdiction precludes us from resolving it. -16- 1 safety, and was consistent with the common defense and security. 2 As required by 10 C.F.R. § 50.12, the NRC also found that 3 special circumstances justified this exemption: specifically, 4 that the underlying purpose of the fire safety rule would still 5 be satisfied after the modification. 6 § 50.12(a)(2)(ii). 7 alternatively treated the order as an amendment to Indian Point s 8 license, the Commission applied its regulations reasonably in 9 opting instead to grant Indian Point an exemption. 10 See 10 C.F.R. Although it appears that the NRC could have Neither Petitioners nor amicus curiae New York State have 11 persuaded us otherwise. Petitioners argue that this exemption 12 should be deemed an amendment because it is permanent, noting 13 that the First Circuit found that the exemption at issue in 14 Commonwealth of Massachusetts did not amount to a license 15 amendment because it had only temporarily exempted the 16 licensee from a rule. 17 granted that exemption pursuant to 10 C.F.R. § 50.12(a)(2)(v), 18 which allows exemptions providing temporary relief from the 19 applicable regulation. 20 temporary nature of the exemption before it, the First Circuit 21 confirmed that the NRC had applied its regulations reasonably, 22 but did not announce a general standard for distinguishing 23 exemptions from amendments. 24 with the NRC regulations: 878 F.2d at 1521. But the NRC had 878 F.2d at 1521 & n.7. In citing the Nor would such a standard comport a requirement that exemptions must be -17- 1 temporary would conflict with the five special circumstances 2 that allow for exemptions even if the relief is permanent. 3 10 C.F.R. § 50.12(a)(2)(i)-(iv), (vi); supra note 1. 4 We also reject New York State s position that a See 5 modification, purported to be an exemption, should be treated as 6 an amendment if it relaxes a safety standard. 7 position may or may not be sound policy, but it lacks a basis in 8 law.5 The State s 9 Petitioners claim that the NRC requires hearings for 10 exemptions involving material questions directly related to an 11 agency s licensing action is also unavailing. 12 at 19. 13 L.L.C., 53 N.R.C. 459 (2001), to demonstrate this alleged NRC 14 practice, but Private Fuel Storage concerned the unrelated issue 15 of whether claims normally appropriate for an exemption, and thus 16 not warranting a hearing, nonetheless can be included in an 17 ongoing licensing hearing. 18 such hearing. 19 20 1 2 3 4 5 6 7 Pet rs Reply Br. Petitioners rely solely on In re Private Fuel Storage, Id. at 461, 466. Here, there is no In sum, none of the standards offered by Petitioners and the State for deciding when to treat exemptions as amendments 5 The State relies on Bellotti v. U.S. Nuclear Regulatory Commission, 725 F.2d 1380 (D.C. Cir. 1983), to support its position, noting that Bellotti held that automatic participation at a hearing may be denied only when the Commission is seeking to make a facility s operation safer. Id. at 1383. However, Bellotti concerned the different question of whether the Massachusetts Attorney General could intervene in the statutorily required hearing for an amendment, see id. at 1381-82, and is therefore inapposite. -18- 1 withstand scrutiny. 2 distinctions between exemptions and amendments establish that the 3 NRC acted unreasonably in considering the modification at issue 4 in this case to be an exemption. 5 More importantly, none of their proffered We recognize that, under the NRC regulations, little appears 6 to distinguish an exemption from an amendment. But as long as 7 the NRC has applied its regulations reasonably, we will not 8 displace the agency s judgment with our own as to whether an 9 exemption or amendment is warranted. Accordingly, we defer to 10 the NRC s classification in this case and hold that the 11 modification order that the Commission granted to Entergy and 12 labeled an exemption is indeed an exemption. 13 challenge only that exemption in this appeal. 14 jurisdiction under the Hobbs Act over exemptions, we must dismiss 15 the petition. 16 Petitioners Because we lack Finally, because we lack jurisdiction, we also express no 17 opinion as to whether the NRC s hearing denial was proper, 18 whether the exemption at issue is arbitrary and capricious, or 19 the other issues raised by Petitioners. 20 Petitioners are indeed challenging an exemption, and that 21 exemptions cannot be reviewed under the Hobbs Act.6 1 2 3 4 5 6 We hold only that We note that our holding does not necessarily shut off every avenue Petitioners may have at their disposal for relief. Petitioners are free to seek review in the district court of the NRC s actions pursuant to the APA. See Sharkey v. Quarantillo, 541 F.3d 75, 84 (2d Cir. 2008) ( [A] suit that arises under the APA is properly brought in district court. ). -19- CONCLUSION 1 2 For the foregoing reasons, we DISMISS the petition without 3 prejudice for want of jurisdiction. 4 denied as moot. -20- All pending motions are

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