Former Assemblyman Richard Brodsky has scored a victory in his long-running battle against the Nuclear Regulatory Commission and Entergy, the owner of Indian Point, thanks to a federal appeals court that reversed a lower court ruling on the commission’s responsibility to involve and notify the public before exempting the Hudson Valley nuclear power plant from health and safety requirements.

The exemption challenged by Brodsky, who is also a veteran attorney, dealt with fire safety.

NRC rules require that the electric cables that control reactor shutdown in the case of an emergency have fire insulation that lasts one hour. But when tested, the insulation at Indian Point (and elsewhere) lasted 27 minutes.

Rather than require Entergy to upgrade the insulation to meet the one hour requirement the NRC, at Entergy’s request, issued an “exemption” that lowered the requirement to 24 minutes, Brodsky noted. And 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.

According to the decision, which was nine months in the making (Brodsky argued the case last May and filed his lawsuit over four years ago), the NRC must “supplement the administrative record to explain why allowing public input into the exemption request was inappropriate or impracticable.”

In a brief telephone interview, Brodsky called the decision a “crack in the wall of secrecy that the NRC uses to hide its health and safety decisions.”

Environmental activist Robert F. Kennedy Jr. called the 2nd Circuit decision in Brodsky v. NRC a “turning point in our long-standing struggle to end the collusion between the NRC and the nuclear industry,” adding:

“It will both protect and involve the public in key NRC health and safety decisions. 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.”

This decision will not likely help Entergy in its quest for a 20-year extension of its operating licenses for Indian Point. Gov. Andrew Cuomo has made it clear he wants the plant to close, although he also is seeking an alternative for the over 2,000 megawatts of power it generates, without which New York City would be in a serious bind.

AG Eric Schneiderman is also actively seeking to block Indian Point from getting is licenses renewed. He has said Entergy has a “steep hill to climb,” and in July 2011, he won a key decision from the federal government that would require the facility to submit an action and environmental cleanup plan for accidents before being re-licensed.

Schneiderman had sought the stipulation in the ongoing battle over the re-licensing of the Westchester-based plan after the NRC decided to not require the environmental impact study – another black mark against the commission in the eyes of Indian Point opponents.

UPDATE: Entergy spokesman Jim Steets emailed the following statement:

“The court found Mr. Brodsky’s challenges to past NRC decisions regarding exemption requests to be ‘generally without merit,’ but the court took issue with the NRC’s process and the extent to which that process involved public participation. The case was sent back to the district for further proceedings on that narrow issue, and did not involve any issue in the license renewal proceeding.”

Brodsky v NRC 2nd Circuit Decision