IA-86-553, Informs of Status of NRC Litigation as of 851231

Informs of Status of NRC Litigation as of 851231

ML20205J434
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Issue date:	01/14/1986
From:	Briggs W NRC OFFICE OF THE GENERAL COUNSEL (OGC)
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ML20205D369	List: IA-86-553, Informs of Status of NRC Litigation as of 851231 ML20205D366 ML20205J434
References
FOIA-86-553, TASK-AII, TASK-SE SECY-86-014, SECY-86-14, NUDOCS 8602130435
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ADJUDICATORY ISSUE January 14, 1986 SECY-86-14 For: The Commission From: William H. Briggs, Jr., Solicitor

Subject:

LITIGATION REPORT AS OF DECEMBER 31, 1985

Purpose:

To inform the Commission of the status of litigation.

Discussion: Attached to this paper is an update on NRC litigation. Since the last report in July 1985, and the cut-off date for this report, December 31, 1985, the Commission was sued 9 times in the court and once in the district court.gf appeals, During the same period 1

Anthony v. NRC (3rd Cir. No. 85-3606); Business and Professional People for the Public Interest v. NRC (D.C. Cir.

No. 85-1441); Commonwealth Edison Co. v. NRC (N.D. Ill.

No. 85C09255); Commonwealth Edison Co. v. NRC (7th Cir.

No. 85-2928); Environmental Defense Fund, et al. v. United States Nuclear Reculatory Commission, et al. (D.C. Cir. No 85-1817);

1.imerick Ecology Action, Inc. v. NRC, (3rd Cir. No. 85-3431);

Martin v. NRC (3rd Cir. No. 85-3444); Quivira Minino Company, et al. v. United States Nuclear Reculatory Commission, (10th Cir.

No. 85-2853); San Luis Obispo Mothers for Peace v. NRC, (D.C.

Cir. No. 85-1495); Union of Concerned Scientists, et al. v. NRC, (D.C. Cir. No. 85-1757).

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• 2 9 cases were closed.2 In addition, the Commission received favorable decisions in six other cases; however, further proceedings in these cases may be necessary bgfore they can be considered finally closed Finally, during this six month period, we filed 26 substantive motions and briefs.

Five of these were expedited filings, including four oppositions to motions to stay the operation of power plants.

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fo William H. Brig,- 47r.

Solicitor

Attachment:

Litigation Report DISTRIBUTION:

Commissioners Regional Offices OGC EDO OPE ELD OCA ACRS OPA ASLBP ~

OIA ASLAP OI SECY 2

Anthony v. NRC (3rd Cir. No. 84-3409); Long, et al. v. Salt River Project Agricultural & Power Dist., et al. (D.D.C. Ariz.

No. 83-2397); Trombetta v. NRC, et al. (3rd Cir. No. 84-1447);

Trombetta v. NRC, et al. (3rd Cir. No. 83-1886) were dismissed by the Court. Favorable decisions were rendered in Abbotts, et al.

v. NRC (D.C. Cir. No. 84-5423); Cranston, et al. v. Reagan, et al. (D.D.C. No. 84-1545); Duke Power Co. v. NRC (4th Cir.

No. 84-1866); Johnston v. NRC, et al. (7th Cir. No. 84-1583);

Rockford Newspapers, Inc. v. NRC, et al. (N.D. Ill.

No. 83C20074).

Aamodt, et al. v. NRC (3rd Cir. No. 85-3315); Commonwealth of Pennsylvania v. NRC, et al. (3rd Cir. No. 85-3302); Three Mile Island Alert v. NRC, et al. (3rd Cir. No. 85-3001); Union of Concerned Scientists v. NRC (D.C. Cir. No. 84-1549); Union of Concerned Scientists v. NRC, et al. (3rd Cir. No. 85-3310); and United Nuclear Corp., et al. v. EPA, et al. (10th Cir.

No. 84-1908).

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• LITIGATION As of the End of December, 1985 ACTIVE CASES Atherton v. United States, et al. (D.D.C. No. 84-1556)

Contact:

Neil Jensen x 41493 This is an action by a former NRC employee alleging wrongful removal from his position and seeking reinstatement and back pay.

An answer to the c'omplaint was filed on November 21, 1984. The government submitted its motion to dismiss or, in the alternative, for summary judgment on January 28, 1985. The Court is now considering that motion and the responses to it.

Atlantic Richfield Co. v. United ~ States (U.S. Claims Court No.

576-84-C)

Atlas Corporation v. United States (U.S. Claims Court No.

281-83-C)

Homestake Mining Co. of California v. United States (U.S. Claims Court No. 580-84-C)

Kerr-McGee Chemical Corporation v. United States (U.S. Claims Court No. 143-84-C)

Pathfinder Mines Corp. v. United States (U.S. Claims Court No. 581-84-C)

Quivira Mining Company v. United States (U.S. Claims Ct. No.

144-84-C)

UMETCO Minerals Corp. & Union Carbide Corp. v. United States (U.S. Claims Court No. 579-84-C)

Western Nuclear, Inc. v. United States (U.S. Claims Court No.

565-84-C)

Contact:

Charles E. Mullins x 43224 i These cases were filed against the United States to recover anticipated expenses of cleaning up tailings piles generated in carrying out uranium mining and milling operations under contract with the federal government. The companies entered into contracts with the Atomic Energy Commission (AEC) to produce uranium I concentrate (yellow cake). In Kerr-McGee, the company entered Those cases considered to be most significant to the agency are marked with an asterisk.

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into a contract with the AEC to produce thorium nitrate and other thorium bearing materials. As part of the contracts, the com-panies constructed mills. The contracts contained no explicit provision regarding the payment of costs associated with the stabilization or reclamation of mill tailings or with the eventual decommissioning of the mills. Plaintiffs claim that at the time the contracts were executed neither party believed that mill tailings might be found to pose a significant health hazard to the public and, accordingly, the contracts do not provide for the company to be compensated for the stabilization or reclamation of mill tailings or the decommissioning of the mill. Plaintiffs have filed suits in the Court of Claims invoking the doctrine of

" mutual mistake" to ask the court to reform the contract to provide reimbursement to the plaintiffs for the costs of its mill tailings cleanup. The government has filed its responses to the complaints. Discovery in each of these cases is ongoing.

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On December 20, 1985, the Government filed a Motion for Judgment on the Pleadings to dismiss the case. Our office is prepared the motion in conjunction with Justice, Energy, Agriculture, Interior, and EPA.

Business and Professional People for the Public Interest v. NRC, No. 85-1411 (D.C. Cir.)

Contact:

Carole Kagan ._

x 41493 Petitioners were intervenors in the Bailly licensing proceeding who seek attorneys fees under the Equal Access to Justice Act for their participation in that proceeding. The sole issue in the case is whether the funding limitation in the NRC's Appropriations Act precludes the agency from awarding attorney fees to intervenors in NRC adjudications. We filed our brief in this case on November 6, 1985. Oral argument will probably be scheduled for Spring, 1986.

Carr, John C. v. United States (Cl. Ct. No. 323-84C)

Contact:

Sebastian Alcot x 43224 On June 22, 1984, plaintiff filed suit seeking re-instatement and back pay. The case presents a question of first impression regarding the standards and procedures to be used in suspending and discharging an employee under 5 U.S.C. S 7532 in the interests of the national security. At its core, the case concerns the off-duty activities of a high-ranking NRC official (with daily access to confidential and classified information) which raised

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serious questions regarding the agency's continued faith in the employee's ability and willingness to preserve the confidentiality of that classified information, and the employee's silence in the face of those questions. In defense, the NRC is arguing that no individual has a right to a security clearance and, once a reasonable basis exists to believe that the agency's trust may be misplaced, no employee has a right to remain silent yet still retain his access to confidential and classified information.

Moreover, even where the employee participates in the inquiry into his or her continued access to classified information, the ultimate decision is committed to the discretion of the agency head, the exercise of which must be sustained where the record reveals a reasonable basis for the agency head's decision. The government's cross-motion for summary judgment was filed in November, 1984. The Court has yet to render a decision.

Center for Nuclear Responsibility, et al. v. Nuclear Requ-latory Commission, et al. (D.C. Cir. No. 84-1420)

Contact:

Michael Blume x 41493 This case, sometimes referred to as "Lorion 2," is an Acoust 13, 1984 appeal of U.S. District Court Judge Penn's dismissal of plaintiffs' challenge to the NRC's issuance of a no significant hazards consideration amendment permitting a chance in the core configuration at Turkey Point in order to reduce neutron radiation of the pressure vessel. Judge Penn agreed with our position that review lies exclusively in the courts of appeals for both the Commission's no significant hazards consideration determinations and its related decisions on whether to issue environmental impact statements. The court of appeals denied, without prejudice, our motion to dismiss the appeal for untimeliness. In our merits brief filed in February 1985, we and the Department of Justice reasserted our motion for dismissal. We also rebutted appellants' arguments that the District Court erred in failing to sua sponte transfer the case to the Court of Appeals, and thet the no significant hazards consideration finding was improper. We filed a supplemental brief in this case arguing that a recent D.C.

Circuit case mandates dismissal of this appeal. There was an oral argument on October 15, 1985, but a decision is still pending.

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• Coalition for the Environment, St. Louis Region, et al. v. NRC, et al. (D.C. Cir. No. 84-1313)

New England Coalition on Nuclear Pollution, et al. v. NRC (D.C.

Cir. No. 84-1514)

Contact:

Carole Kagan x 41493 On July 12, 1984, Joint Intervenors in the Callaway proceeding moved the U.S. Court of Appeals for the D.C. Circuit for an emergency stay of the Callaway low-power license pending review of the Commission's policy not to permit adjudication over licensee's financial qualifications. D.C. Cir. No. 84-1313. In a separate petition for review, the Callaway Joint Intervenors requested the court to: (1) compel the Commission to rule on the Joint Intervenors' motions to reopen the record on financial qualification; (2) reverse the issuance of the low-power license because it was arbitrary and capricious and in violation of the Court's mandate in New England Coalition on Nuclear Pollution v.

NRC, 727 F.2d 1127 (D.C. Cir. 1984); and (3) to set aside the Commission's June 7, 1984 Policy Statement on financial qualifications. The court denied the petitioners' motion for a stay on August 1, 1984.

On January 11, 1985, the court, sua sponte, consolidated No. 84-1313 with New England Coalttion on Nuclear Pollution v. NRC (D.C. Cir. No. 84-1514). This petition was filed on October 15, 1984. It attacks the Commission's latest financial qualification rule, which exempts from adjudication the financial qualifications of regulated utility companies applying for power reactor operating licenses. The NRC's brief in both cases was filed on February 20, 1985. Intervenor utilities filed three separate briefs on March 7, 1985. Petitioners' reply briefs were filed on April 4, 1985. Oral argument was held on October 11, 1985. No decision has yet been issued.

• Commonwealth Edison Co. v. NRC, No. 85C09255 (N. D. Ill.) and No. 85-2928 (7th Cir.)

Contact:

Steven F. Crockett x 41465 On November 1, 1985, Commonwealth Edison sued in United States District Court for the Northern District of Illinois for a declaratory judgment that the NRC's application of its current license fee ceilings to license review work done before the effective date of the current ceilings is illegal under the Independent Offices Appropriations Act (IOAA) and contrary to the

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5 due process clause of Amendment V to the United States Constitution. Uncertain of what court has jurisdiction over such an issue, Commonwealth Edison also filed a similar suit in the Seventh Circuit.

The NRC's current fee ceilings became effective in 1984. By then the costs which the Commission had incurred from the license reviews for Commonwealth Edison's Byron and Braidwood plants had exceeded the previous ceilings which had been imposed by the 1978 regulations. After raising the ceilings in 1984, the NRC then billed Commonwealth Edison for work performed prior to the effective date of the new regulations which could not have been assessed under the old regulations because it exceeded the previous ceilings.

The utility claims that this is an impermissible retroactive application of the current ceilings to review work done after the 1978 ceilings were reached but before the current ceilinas became effective. The utility also claims that the NRC has applied the wrong law in_ calculating interest and penalties on the unpaid bill.

The NRC claims that Commonwealth Edison owes it slightly over

$3,000,000. Moreover, additional penalties and interest accrue at the rate of over $1,200 per day. More than that is at stake in the case though, since there are other utilities in Commonwealth Edison's position.

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Commonwealth Edison and the NRC have agreed to the filing of a joint motion in the District Court to hold the District Court proceeding in abeyance until the Circuit Court has ruled on the petition before it. The U.S. Attorney in Chicago will file the motion in early January. The NRC filed the record in the case on December 13. The petitioner's brief is due January 22.

Critical Mass Energy Project v. NRC (D.D.C. Civil Action No.

84-1943)

Contact:

Theresa Hajost x 41493 On June 25, 1984, the Critical Mass Energy Project (CMEP),

a consumer orcanization, filed this action in Federal District Court to compe:1 the Commission to provide a complete response to a request under the Freedom of Information Act (FOIA). A claim under the Federal Advisory Committee Act (FACA) was joined to the original FOIA claim but was settled out of court. The NRC filed a Vauchn index and responded to discovery. Dispositive motions have been filed and the court has set oral argument for January 17, 1986.

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General Electric v. NRC (D.C. Cir. No. 80-2496) l Prairie Alliance v. NRC (C.D. Ill. No. 80-2095)

General Electric v. NRC (C.D. Ill. No. 80-2244)

General Electric v. NRC (7th Cir. No. 84-2066)

Contact:

Paul Bollwerk

. x 43224 On May 7, 1980, the Prairie Alliance sued the NRC under the Freedom of Information Act (FOIA) to compel disclosure of the General Electric Nuclear Reactor Study known as the Reed Report.

While that lawsuit was pending, on October 9, 1980 the Commission,

<nt a 2-2 vote, was unable to muster a' majority to claim any FOIA exemption.for the report and hence ordered its release. The General Electric Company sued to enjoin release of the report and to require its return to General Electric. In 1983, the District i

Court granted the government's motion for summary judgment holding

.that the Reed Report was an " agency record" subject to the FOIA and the NRC did not abuse its discretion to release the Reed Report. GE appealed to the Seventh Circuit and in a decision issued on December 21, 1984, the Seventh Circuit generally sustained the NRC's action but remanded the case to the agency for

, a more expansive statement of reasons for its decision to release.

Pursuant to a May 13, 1985 letter from the Commission, on July 1, 1985 GE submitted further information regarding whether the report should be released. Those requesting the Reed Report have had an opportunity to respond to GE's submission. The NRC staff also has

analyzed the GE submission and provided its recommendations

concerning release of the report. The Commission now will have to determine the appropriate disposition of the Reed Report. An OGC paper on the subject will be presented to the Commission early in 1986.

Government Accountability Project v. NRC (D.D.C., Civil Action Nos. 84-2554, 84-2555, 84-2556, 84-2557, 84-2558, 84-2559,

, 84-2560)

Contact:

Carole Kagan x 41493 4

On August 20, 1984, the Government Accountability Project (GAP),

a public interest organization, filed seven separate actions in Federal District Court for the District of Columbia to compel the

Commission to produce documents'under the Freedom of Information Act (FOIA). The lawsuits concern seven FOIA requests filed with the NRC in March, May and June of 1984, and later appealed, which sought information concerning the NRC's Special Investigation of Difficulties at the Waterford Steam Electric Station, Unit 3.

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On November 26, 1984, GAP filed discovery requests on four of the seven cases. On December 13, 1984, the NRC filed motions for protective orders. On March 1, 1985, all nonwithholdable documents were released and Vauchn affidavits were filed for withheld portions. The NRC's motions for summary judgment were filed on March 15, 1985. On April 30, 1985, the District Court entered six separate consent orders in which the parties agreed to partial dismissal of each case except No. 84-2555 reserving only the issue of attorneys' fees. The NRC has produced all nonwithholdable records which were responsive to GAP's requests in the six cases.

Nos. 84-2554, 84-2556, 84-2557, 84-2558, 84-2559 and 84-2560, are closed except for the issue of attorney fees. No fee request has been filed to date. In the remaining case, No. 84-2555, Judge Parker denied our motion for summary judgment, finding factual disputes. GAP has requested discovery on the adequacy.of.the NRC's search. Judge Parker granted discovery, but it has been held in abeyance pending settlement negotiations. The new due date for discovery is January 13, 1986. A status call is scheduled for January 15.

International Verbatim Reporters, Inc. (IVRI) v. United States (Ct. C1. No. 458-80)

Contact:

Patricia Davis x 43308-On August 27, 1980, IVRI sued the United States for breach of plaintiff's contract to provide stenographic reporting services.

The Commission has counterclaimed for excess reproduction and procurement costs on the ground that the reporting company failed to provide adequate reporting services. The trial is now com-plete, and the parties have submitted post-trial briefs and proposed findings. Due to the Court's docket, the time interval for the court to render its decision has become lengthy. The matter is under consideration.

Lorion v. NRC (D.C. Cir. No. 82-1132)

Contact:

Richard Levi x 41465 Ms. Lorion filed a petition on February 8, 1982, to review the NRC's decision denying her request that Turkey Point Unit 4 be shut down for a steam generator inspection. Ms. Lorion alleged that the Commission acted unlawfully (1) in treating her letter requesting such action as a petition under 10 C.F.R. 2.206 and

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• 8 (2) in denying her request. On July 26, 1983, the D.C. Circuit court upheld the NRC's action ~in treating Ms. Lorion's letter under 10 C.F.R. 2.206 but sua sponte held that the courts of appeals lack subject matter jurisdiction to review denials by the Nuclear Regulatory Commission of requests under 10 C.F.9 2.206 for enforcement action against NRC licensees. 712 F.2d 2. The court stated that jurisdiction to review such denials lies initially in the district court. The NRC's Petition for Rehearing with a Suggestion for Rehearing En Banc was denied on September 22, 1983. At our request the Sclicitor General filed a petition for certiorari on December 21, 1983, and the Supreme Court on March 26, 1984, granted the petition. On March 20, 1985, the Supreme Court reversed the D.C. Circuit and held that the courts of appeals do have subject-matter jurisdiction over 10 C.F.R. S 2.206 denials. 84 L. Ed. 643.

On remand, we filed a supplemental brief with the D.C.. Circuit in which we argued that NRC refusals to take enforcement action under 10 C.'F.R. S 2.206 were not judicially reviewable. The case was argued on December 16, 1985, and we are awaiting a decision by the Court of Appeals.

Nuclear Awarenes Network, Inc. v. NRC, C.A. No. 84-4404 (D.

Kans.)

Contact:

Theresa Hajost x 41493 This FOIA suit has been filed by an organization seeking Wolf Creek related documents. A scheduling order has been entered by the Court setting forth time limits for discovery, amendments to the pleadings and dispositive motions.

• Oystershell Alliance, et al. v. NRC, et al. (D.C. Cir. No.

85-1182)

Contact:

Carolyn Jourdan x 41493 On March 25, 1985, the Oystershell Alliance and others filed a petition for review in the U.S. Court of Appeals for the D.C.

Circuit. The petition opposes the Commission's March 15 author-ization of full-power operation of Waterford 3 while two motions to reopen the record were pending before the Appeal Board. On April 3, the emergency motion for stay was denied by the U.S.

Court of Appeals for the D.C. Circuit. Since the issuance of that order, both motions to reopen have been denied, with the exception of one part which was referred to the Commission. Petitioners'

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9 brief was filed on June 25, 1985. Cn August 8, we filed our brief in this action. The central issue is whether the Commission erred in issuing its March 15, 1985 effectiveness order, which allowed the Waterford operating license to be issued notwithstanding the pendency before the Appeal Board of two motions to reopen the Waterford adjudicatory record. Oral argument has been set for February 25, 1986.

• Palmetto Alliance v. NRC (D.C. Cir. No. 84-1590)

Contact:

Charles Mullins x 43224 The Palmetto Alliance and the Carolina Environmental Study Group filed a Petition on December 4, 1984, challenging the low-power license issued to Duke Power Company for the Catawba Nuclear Station, Units 1 and 2. On January 2, 1985, petitioners filed an emergency motion to stay the Catawba license. The Court denied the request on January 5, 1985. On January 18, 1985, petitioners filed a motion to stay full-power operation of Catawba. The Court denied the full-power stay request on January 19, 1985. We asked the Court to delay regular briefing of this matter until after the Commission's internal administrative review process is complete.

Over petitioners' opposition the. Court granted our request to hold the case in abeyance until after the Appeal Board decision on the merits of intervenors' position.

The Appeal Board has now issued a decision upholding the issuance of the license and the Commission allowed the review time to expire without taking any action, making the agency's decision final. We have filed the Certified Index of the Record. We are preparing to file a motion to dismiss the case on jurisdictional grounds. If that motion is denied, the case will be briefed on the merits in early 1986.

Ouivira Minino Company, et al. v. United States Nuclear Reculatory Commission (10th Cir. No. 85-2853)

Environmental Defense Fund, et al. v. United States Nuclear Reculatory Commission, et al. (D.C. Cir. No. 85-1817)

Contact:

Neil Jensen x41493 The above actions, filed on December 13 (Quivira) and December 16 (EDF) 1985, challenge the Commission's amendments to its uranium mill tailings regulations. 50 Fed. Reg. 41852 (October 16, 1985).

The amendments conform NRC requirements to standards set by the

I 6 10 Environmental Protection Agency (" EPA"). The industry petitioners assert that the amended regulations are an abuse of acency discretion and so must be vacated. The environmental petitioners assert that the NRC failed to fully conform its regulations to EPA's standards, particularly with respect to the standards for ground water protection. The NRC will move, pursuant to 28 U.S.C.

S 2112(a), to have these cases consolidated in the Tenth Circuit where the initial filing occurred.

• San Luis Obispo Mothers for Peace, et al. v. NRC (D.C. Cir.

No. 81-2035)

San Luis Obispo Mothers for Peace, et al. v. NRC (D.C. Cir.

No. 83-1073)

San Luis Obispo Mothers for Peace, et al. v. NRC (D.C. Cir.

No. 84-1042)

San Luis Obispo Mothers for Peace, et al. v. NRC (D.C. Cir.

No. 84-1410)

Deukmejian v. NRC (D.C. Cir. No. 81-2034)

Contact:

William Briggs x 41465 On September 21, 1981, petitioners, the former Governor of California (No. 81-2034) and joint intervenors in the Diablo Canyon proceeding (No. 81-2035), challenged the Commission's issuance of a low-power license for Diablo Canyon Unit 1. The court consolidated these cases on October 8, 1981. Before any further court action, the NRC suspended PG&E's low-power license on November 21, 1981, pending the completion of an Independent Design Verification Program which was to review and correct certain design quality assurance problems. In recognition of the suspension the court granted the NRC's motion to hold the case in abeyance pending completion of the administrative proceedings.

Before these proceedings could be completed, the term on Diablo Canyon's low-power license ran out. The Commission extended that term without a hearing and denied Joint Intervenors' request for such a hearing. Joint Intervenors petitioned for review of that Commission decision (No. 83-1073). That case was consolidated with Mos. 81-2034 and 81-2035.

After finding that the Independent Design Verification Program had been completed successfully, the Commission on November 8, 1983, reinstated a portion of PG&E's suspended license to authorize fuel loading and certain pre-criticality tests at Diablo Canyon.

Thereupon, joint intervenors sought an emergency stay of this authority from the D.C. Circuit. On November 15, 1983, the Court denied the stay. PG&E proceeded to load fuel and conduct the

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authorized tests. After the reinstatement of PG&E's low-power license for Diablo, Joint Intervenors petitioned for review and sought a stay (No. 84-1042). This petition was consolidated with

. i 11 the three prior low-power cases. Once again, on April 18, 1984, the D.C. Circuit denied petitioners' emergency motion for a stay.

The Commission proceeded to issue a full-power license before the low-power cases were heard. On August 12, 1984, SLOMP filed a petition for review of the Commission's decision allowing.the Licensing Board decision to issue a full power license for Diablo Canyon to become effective (No. 84-1410). SLOMP also moved to stay operation of the reactor. The D.C. Circuit granted the stay motion on August 17, 1984 and established an expedited briefing schedule. The Solicitor General on NRC's behalf moved Supreme Court Justice Warren Burger to vacate the stay, but the motion was denied. The Court heard the low-power cases simultaneously with the full-power cases. On December 31, 1984, the panel rendered a decision affirming the Commission's issuance of a full-power license (751 F.2d 1287). The decision rejected a number of challenges to the Commission's licensing. The panel also. held that the Commission had erred in extending the period of the low-power license without first holding an adjudicatory hearing.

However, because the full-power license had already issued, the panel found that the error did not warrant redress.

On February 13, 1985, petitioners requested a rehearing en banc.

i The en bane court vacated part of the panel decision ,deaTInq with

eartEquakes and emergency planning. It also requested briefing by the parties on whether it should consider improperly released transcripts of closed Commission meetings where the earthquakes / emergency planning issue was deliberated. The case was argued en banc on October 3, 1984. We are' awaiting the Court's decision.

San Luis Obispo Mothers for Peace v. NRC, No. 85-1495 (D.C. Cir.)

(Diablo Canyon, Unit 2 license)

Contact:

E. Neil Jensen ,

x 41493 On August 7, 1985, the San Luis Obispo Mothers for Peace filed a petition in the D.C. Circuit seeking to overturn the Commission's full-power license for Diablo Canyon, Unit 2. The petition was accompanied by a motion to stay Unit 2's operation pending the Court's en banc review of the earthquakes / emergency planning issue. (No. 84-1410 and consolidated cases). On August 20, 1985, the Court denied the stay request but explicitly noted that "the en banc court remains entirely free to revisit the stay question in its final decision." On September 24, 1985, the parties moved to hold this case in abeyance pending the en banc Court's decision in No. 84-1410.

12 Shumaker, John J., et al. v. NRC, et al. (3rd Cir. No. 85-3283)

Contact:

Trip Rothschild

41465 On May 20, 1985, petitioners brought this litigation challenging the Commission's April 4, 1985 decision which (1) denied peti-tioners' request that the Commission pursuant to 10 C.F.R. 2.206 revoke the licenses held by GPU Nuclear to operate TMI-1, TMI-2 and Oyster Creek, and (2) denied their request for hearings on GPU Nuclear's " character."

After the Supreme Court denied TMIA's stay request in the related TMI-restart case, petitioners moved the Third Circuit on October 3, 1985, to stay the operation of TMI-1. Petitioners claimed that the Commission had wrongfully denied their 2. 206 petition. Without waiting for our response to the stay request, the Court on October 3 denied the motion.

Briefs on the merits of petitioner's claims have now been filed.

In our brief, we argued that 10 C.F.R. 2.206 denials are not l reviewable by the federal courts. Oral argument has not yet been scheduled.

• Sierra Club, et al. v. NRC, et al. (9th Cir. No. 85-7003)

(San Onofre Unit 1 restart)

Contact:

Carolyn Jourdan x 41493 The petition for review, filed January 3, 1985, challenges the Commission's November 21, 1984 decision to authorize, without a hearing, San Onofre Unit 1 to operate prior to the completion of certain seismic upgrades. On February 25, 1985, petitioners filed an Emergency Motion seeking a stay of the Commission's February 19 Order denying a hearing on and stay of the November 21, 1984 order and an' injunction of the operation of San Onofre Unit 1 pending appeal. On February 27, 1985, the NRC and intervenors (Southern California Edison Co. and San Diego Gas and Electric Co.) filed oppositions to the request for an expedited response to the stay motion. Later that same day, the Ninth Circuit's duty judge denied the request to treat the stay as an emergency. The NRC and intervenorn filed oppositions to the stay on March 5, 1985. On March 25, 1985, the Ninth Circuit denied the emergency stay motion. The Sierra Club's stay petition challenged the Commission's November 1984 " Contingent Recession of Suspension" order and argued that it was a license amendment issued without a prior hearina as required by Section 189(a) of the Atomic Energy Act. NRC filed its brief on June 4th and the intervenor's brief

13 was filed on June 21, 1985. Oral argument was held in San Francisco on October 11, 1985.

At oral argument, the panel hearing this case raised a number of difficult jurisdictional questions. The facts giving rise to this inquiry are as follows: On November 21, the Commission authorized the restart of San Onofre Unit One without requiring a license amendment hearing. On December 7, the Sierra Club asked the Commission to reverse its November 21 restart order. On January 3, the Sierra Club filed its petition for judicial review of the November 21 order. On February 19, the Commission denied the Sierra Club's December 7 administrative request. The Sierra Club failed to file a petition for review cr amended petition with the Court after February 19. The 9th Circuit panel asked whether the January 3 petition for review was effective with regard to the Commission's February 9 order. A D.C. Circuit decision issued a few days before oral argument indicated that the January 3, 1985 petition could not be deemed effective for the subsequent order, even though the subject of the case remained unchanged and no party was prejudiced by the technical omission of a new petition.

Accordingly, we told the Court that the Sierra Club petition was ineffective.

Following the oral argument, the Court invited supplemental briefs on the jurisdictional questions. We filed a supplemental brief November 6, 1985, addressing the following questions:

(1) Whether the Court has jurisdiction over a petition filed before entry of the agency order being challenged (the February 19 order) (our answer: no)

(2) Whether the Court can review the legality of an agency order entered in a " proceeding" to which petitioners were not a party (the November 21 order) (our answer:

no)

(3) Whether the Court has jurisdiction to consider an order which petitioners have asked the agency to reconsider (the November 21 order) (our answer: maybe not)

In sum, our supplemental brief concluded that the Court could find that none of the Sierra Club's arguments were properly before the Court. The case is now awaiting decision.

14 4

• Union of Concerned Scientists, et al. v. NRC (D.C. Cir.

No. 85-1757)

Contact:

Martin G. Malsch x 41465 On November 18, 1985, the Union of Concerned Scientists, Wells Eddleman, and the Federated Conservationists of Westchester County filed suit against the Commission, seeking to have the court declare the Commission's "backfitting rule" null and void and direct the Commission to issue a rule that would conform to the requirements cf the Atomic Energy Act. The petitioners claim that the Act does not permit the Commission to use a cost-benefit analysis in making backfit decisions. The petitioners also claim that the backfit rule is arbitrary and capricious and therefore in violation of the Administrative Procedure Act. The NRC f.iled the rule-making record on December 30. The petitioners' brief is due in February.

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l INACTIVE CASES American Mining Concress v. U.S.A. (10th Cir. No. 81-1566)

Kerr-McGee Nuclear Corp., et al. v. NRC (10th Cir. No. 81-1569)

Contact:

Neil Jensen x-41493 On May 22, 1981, Kerr-McGee Nuclear Corporation, Homestake Mining Company and American Mining Congress (AMC) filed' petitions to

} review the amendment to Part 20 which incorporated explicitly the Environmental Protection Agency's (EPA) general environmental

^ standards for uranium fuel cycle facilities including uranium

mills. See 46 Fed. Rea. 18525 (March 25, 1981). Petitioners also 4

seek review of the Commission's March 26, 1981 denial of their

motion to reconsider or defer implementation of the EPA j regulations at uranium mills pending a final decision on their motion to EPA to reconsider the regulations. The lawsuits have l been held in" abeyance pending EPA's resolution of AMC's petition to reopen the record and reconsider the general standards.

[

I l Kepford v. NRC (D.C. Cir. Nos. 78-1160, 78-2170, 81-2111 &

l 83-1037) ._

Contact:

Neil Jensen x 41493 i

l In No. 78-1160, petitioner Chauncey Kepford brought suit on j February 27, 1978, to stay operation of the Three Mile Island

Unit 2 facility, primarily because of claimed unacceptable health

impacts from radon-222 releases attributable to the mining and i- milling of uranium to fuel the plant. On March 8, 1978, the D.C.

Circuit denied the motion for a stay, and on March 22 the co:trt held further review in abeyance pending completion of administra-tive proceedings. In No. 78-2170, Mr. Kepford sought review of a September 15, 1978 Commission order affirming the-Appeal Board's

decision, ALAB-486, which authorized an operating license for l TMI-2, but. called for further hearings on the probability of a j very heavy aircraft crash into the TMI-2 containment building. On

{ May 11, 1979, the D.C. Circuit ordered the case held in abeyance

! pending completion of administrative proceedings. On October 19, j 1981, Chauncey Kepford filed No. 81-2111 to review an Appeal Board l opinion addressing the environmental significance of radon-222 l emissions from nuclear fuel cycle operations supportin~g commercial nuclear power plants. Because the Appeal Board had not yet then reached a final determination, the court on November 2, 1981 I granted petitioner's motion to hold this case in abeyance pending i l a final administrative decision. On November 19, 1982, the Appeal  ;

i

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16 Board rendered its final determination on the radon issue. (16 NRC 1517). The Commission subsequently decided to hold ALAB-701 in abeyance pending completion of the review of mill-tailings piles requirements. On January 10, 1983, Chauncey Kepford filed No. 83-1037 to review ALAB-692, which required reassessment of aircraft crash probabilities at Three Mile Island Unit 2 (TMI-2).

He simultaneously moved to hold the case in abeyance until the radon emissions issue (the last issue remaining open in the original TMI-2 operating license proceeding) is resolved. On January 20, 1983, the NRC filed a response indicating that the case should remain in abeyance at least until there is a reasonable prospect that Unit 2 will operate again. On February 10, 1983, the Court enlarged the time for filing the certified index until 30 days after conclusion of matters before the Commission. These four cases have been consolidated. The Court is provided a status report on these cases every 90 days.

• Cuomo, et al. v. NRC (D.C. Cir. No. 85-1042)

Contact:

Peter Crane x 41465 This is a New York State /Suffolk County Petition for Review of a Commission order authorizing the staff to issue a license for Phases I and II of low-power testihg (CLI-84-21, Nov. 21, 1984),

and of an immediately effective June 14, 1985 Licensing Board order authorizing staff issuance of a license for Phases III and IV of Shoreham low-power testing and operation (LBP-85-18).

This case has a complex procedural history. Petiticners first sought review of the November 21, 1985 Licensing Board Order on Phases I and II. In the next stage of the proceeding, a Shoreham Licensing Board authorized the staff to grant an exemption from GDC-17 for Phases III and IV, and in CLI-85-1 (Feb. 12, 1985) the Commission made effective the LJcensing Board decision.

Petitioners filed an amended petition and an emergency stay motion attacking the decision to allow LILCO to conduct Phases III and IV of low-power testing. On February 21, the Appeal Board mooted the st'ay request by reversing the Licensing Board decision on Phases III and IV.

Thereafter, on April 22, 1985, petitioners filed their brief in support of the petition for review of the Phases I and II order.

In their brief, petitioners argued: (1) that their refusal to cooperate with LILCO's emergency plan for full-power operation makes a full-power license so uncertain that the Commission under the National Environmental Policy Act (NEPA) should prepare a supplemental environmental impact statement (SEIS) and a renewed cost / benefit analysis before allowing Phases I and II, and

17  :

1 (2) that Chairman Palladino should have recused himself from the Shoreham proceeding. On May 31, NRC filed its brief defending the 1

Commission's Phases I and II license for Shoreham.

In a June 14, 1985 decision (LBP-85-18), a Shoreham Licensing Board concluded that the Shoreham onsite emergency generators, while not perfect, were in sufficient compliance with GDC-17 to permit staff to issue a license for Phases III and IV of low-power testing, and further that if and when LILCO satisfied emergency preparedness requirements, to permit operation at full power until the first refueling outage. On June 17, 1985, petitioners filed a second amended petition and an emergency stay motion based on a substantially similar NEPA claim to the one they filed initially.

In an unusually comprehensive 13-page opinion, the D.C. Circuit on July 3, 1984, denied Suffolk/New York's request to stay the low-power license granted to LILCO for Shoreham. .

The Court's opinion discusses each of the four prerequisites necessary to obtain a stay and concludes that " petitioners have not met their burden of showing that exercise of the court's extraordinary injunctive powers is warranted." Of broadest importance is its " irreparable harm" discussion. The Court rejected several arguments which we frequently encounter in these stay battles. First, it rejected the notion that irradiation of the reactor was irreparable harm. Second, it held that the risk of an accident at low power is "t66 small to meet an irreparable harm standard." Third, it rejected the claim that irreparable harm exists because a challenge to a low-power. license would be effectively mooted after low-power testing was completed.

Finally, it refused to hold that a NEPA claim was a per se justification for an injunction.

Because of its precedential importance to future stay requests, j OGC asked the Court to publish its opinion, and the Court granted the request on August 21, 1985.

Eriefing on all issues related to Phase III and IV of Shoreham's low-power license has been held in abeyance until after the Commission's final review of the low-power decision.

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Kerr-McGee Nuclear Coro. v. NRC (10th Cir. No. 80-2043)

Uranium Mining and Milling Council, et al. v. NRC (No. 80-2271)

, Western Nuclear Corp. v. NRC (No. 80-2269)

United Nuclear CGrp. v. NRC (No. 80-2229)

Contact:

Neil Jensen x 41493 On October 3, 1980, Kerr-McGee, later joined by a number of other uranium milling companies, petitioned the Tenth Circuit to review the Commission's Uranium Mill Licensing Requi'rements. See 45 Fed.

Reg. 65521 (Oct. 3, 1981). Petitioners challenged the Commission's regulations on a number of grounds, including alleged insignificance of the radon risk, asserted excessive cost of complying with the regulations and the NRC's failure to await promulgation of EPA standards. On March 17, 1982, the 10th Circuit upheld the NRC's mill tailings regulations in their entirety. 673 F.2d 1124. On May 28, 1982, Kerr-McGee filed for rehearing. On October 6, the Tenth Circuit vacated the judgment (but not its order). Rehearing en banc was scheduled but then i deferred in response to an NRC' motion to defer argument. In July, 1982, the Commission suspended portions of the mill tailings regulations. In September, the court again rescheduled hearing en i bane. .The Commission again moved to defer argument and argument

i. was again cancelled. This case remains in abeyance pending the promulgatiori by the NRC of our mili tailings regulations that 3 conform to EPA standards promulgated September 30, 1983. The Commission issued final regulations on October.16, 1985, conforming NRC regulations to some of the EPA standards but the Commission's rule-making with respect to EPA's groundwater standards has not yet been completed.

\

Lemon v. NRC, et al. (New York State Supreme Court No. 10002)

(

Contact:

Mike Blume x 41493 This is a pro se tort claim acainst the Indian Point and Shoreham licensees for what appears to be on-the-job injury, and though the complaint is unspecific about the cause and nature of the injury.

We have received a summons to answer the complaint; however, we have not been named as defendants and, contrary to New York law, there is no allegation specifying the NRC behavior which gives

, rise to any complaint against the NRC, Further, we have not been served correctly. Until plaintiff complies with these requirements, no action on our part is necessary.

19 Limerick Ecology Action, Inc. v. NRC, No. 85-3431 (3rd Cir.) l Martin v. NRC, No. 85-3444 (3rd Cir.) (Limerick license) l Anthony v. NRC, No. 85-3606 (3rd Cir.) (Limerick licensing)

Contact:

Trip Rothschild x 41465 In these consolidated appeals petitioners, Limerick Ecology Action and Martin, challenge the Commission's August 8, 1985 decision authorizing full-power operation of Limerick 1. Petitioners request that the Court stay the Commission's decision was denied on August 21, 1985. On October 2, 1985, the Court granted our request that it hold briefing on the merits in abeyance until the Commission has completes its appellate review of the four Licensing Board Partial Initial Decisions. We are to provide the Court with status reports at 60-day intercals.

Petitioner Robert Anthony challenges the Commission's decision to grant Philadelphia Electric Company an exemption from 10 C.F.R. Part 50, App. E,Section IV, F, 1 (the requirement for an emergency plan exercise within one year of a full-power license).

Petitioner's request for an emergency stay was denied by the Court on November 21, 1985. After that ruling, the Court granted our motion to consolidate this case with the other cases relating to the Limerick operating license application (Nos. 85-3431 and 85-3444) and to hold briefing in abeyance until the Commissioner's Limerick administrative proceedings have been completed.

Punnett v. Carter (E.D. Pa. No. 79-29)

Fountain v. United States (W.D. Ark. No. 80-5092)

Guarisco v. United States (N.D. Cal. C 82 4618)

Beaman v. United States (N.D. Calif. No. C-82-1405-WHO)

Bennett, Leonard, et al. v. United States, et al. (W.D. Pa.

No. 1161)

Carsillo v. United States (N.D. Calif. No. C-82-6372-SC)

Carstensen v. NRC, et al. (C.D. Calif. No. 83-8308)

Cordray v. United States (N.D. Calif. No. C-83-0308-AJZ)

Dixon v. United States (N.D. Calif. No. C-83-1391-RPA)

Estes v. United States (N.D. Calif. No. C-83-0188-WAI)

Ferguson v. United States (N.D. Calif. No. C-83-0188-WAI)

Hampton v. United States (W.D. Ark. No. 83-2168)

Harrison v. United States (N.D. Calif. No. C-83-5307)

Hoffmeister v. United States (N.D. Calif. No. C83-5402 TEH)

Kina v. United States (E.D. Va. Docket No. 84-0133-R)

Molsbergen v. Regents of the University of Calif., et al. (N.D.

Calif. No. C-83-2989-SC)

O 20 Piccinino v. United States (N.D. Calif. No. C-83-0189-SC)

Solano v. United States (N.D. Calif. No. C-83-0309-MHP)

Van Winkle v. Regents of the University of Calif, et al. (N . D .

Calif. No. C-83-4496-AJZ)

Contact:

Michael Korwin x 43224 These cases are a series of tort claims seeking money damages for injuries suffered as a result of the atomic weapons testing program. The principal defendant in the suits is the United States and the cases are being defended by the Department of Justice. The NRC was originally named as a co-defendant'in each action. In each case we.have advised the Justice Department that NRC is not properly involved because NRC did not take over the AEC's functions with regard to weapons testing. Accordingly we shall monitor the cases and assist the Justice Department where possible but no longer carry these cases in our litigation statistics.

• Three Mile Island Alert, Inc., et al. v. NRC, et al. (3rd Cir.

No. 85-3001)

Commonwealth of Pennsylvania v. NRC, et al. (3rd Cir.

No. 85-3302)

Union of Concerned Scientists v. NRC, et al. (3rd Cir.

No. 85-3310)

Aamodt, Norman, et al. v. NRC (3rd Cir. No. 85-3315)

Contact:

Trip Rothschild x 41465 Rick Levi x 43224 In these four consolidated cases, petitioners challenged the Commission's May 29, 1985 decision which authorized the restart of Three Mile Island Unit 1. On June 7, 1985, the Court granted petitioners' motion to stay the Commission's decision. The Court l ordered an expedi'.ed briefing schedule and heard oral argument on June 27, 1985.

1 On August 27, 1985, the Court issued a decision affirming the Commission's restart Order of May 29, 1985. After we informed the Court that we intended to authorize restart, the Court issued an order staying restart until the Court had an opportunity to act upon any petitions for rehearing en banc.

On September 19, the full Third Circuit voted 10-2 to deny the four petitions to review the panel decision en banc. The Third

Circuit extended the stay until September 25 at 4

00 P.M. to l

enable petitioners to seek Supreme Court review.

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21 TMIA, supported by the Commonwealth of Pennsylvania, UCS, and the Aamodts, sought a stay from Justice Brennan. Justice Brennan issued a housekeeping stay to consider the request. We filed an opposition to the stay request. Thereafter, Justice Brennan referred the matter to the full Court. On October 2, 1985, the Court denied the stay request by a 8-1 vote.

The Aamodts filed a petition for writ of certiorari in December 1985. Our opposition is being prepared for filing in early 1986.

Union of Concerned Scientists v. NRC (D.C. Cir. No. 84-1549)

Contact:

Paul Bollwerk x 43224 The Union of Concerned Scientists (UCS) filed suit against the NRC in the United States Court of Appeals for the District of Columbia Circuit on November 5, 1984. Petitioner seeks review of a final rule issued by the NRC on September 5, 1984, which deletes from nuclear reactor operating licenses the June 30, 1982 deadline for documentation and completion of environmental qualification of safety-related equipment. Petitioner contends that the NRC unlawfully deleted the deadline in violation of the Atomic Energy Act and the Administrative Procedure Act and requests the court to declare the Comrission's Final Rule to be null and void and to reinstate the June 30, 1982 compliance deadline. Briefing by the parties, including intervenor Nuclear Utility Equipment

, Qualification Group, was completed in April 1985.

By order dated November 15, the Court, sua sponte, asked the parties to brief the consequences of the passage of the new November 30, 1985, EQ deadline on this lawsuit. On November 25, we responded to the Court's order by a filing which argues that after the November 30 deadline passes this lawsuit will be mooted because UCS will have all the relief which it can possibly obtain i

from the Court in this action. In a December 4, 1985 Memorandum and Order, the Court agreed with this analysis and dismissed the case as moot.

UCS has new sought en banc review. We are not closing the case until UCS' appellate efforts are concluded.

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O 22 Union of Concerned Scientists v. NRC (D . D . C . No. 84-2833)

Contact:

Karla Smith x 41465 On September 12, 1984, the Union of Concerned Scientists (UCS) filed suit alleging that the NRC improperly withheld documents related to the GESSAR-II Probabilistic Risk Assessment which UCS had requested under the Freedom of Information Act (FOIA). The General Electric Company (GE) claimed that the documents were proprietary. Pursuant to a stipulation, the NRC reviewed seven (1600 pages) of the forty dccuments (4000 pages) within the scope of the request. On February 1, 1985, the NRC filed a Vaughn index indicating that 1500 pages of the reviewed documents were exempt fron disclosure under exemption four of FOIA. The NRC released the remaining portions and determined that a discretionary release of the withheld material was unwarranted. All parties filed cross-motions for summary judgment and replies, including GE which intervened in the suit. On June 6, 1985, the Court granted the NRC and GE partial summary judgment upholding the NRC's refusal to make a discretionary release, but denied summary judgment on the issue of whether exemption 4 applied due to factual questions over substantial competitive harm.

Subsequently GE and UCS settled the case on a basis where GE released to UCS 11 of the 1500 pages being withheld. UCS then moved for attorneys fees from the NRC. We opposed UCS's motion for attorneys fees arguing that the release (because of a GE/UCS settlement) of only 11 pages out of 1500 does not entitle UCS to fees.

On October 22, 1985, the Court found that plaintiff substantially prevailed in this settled FOIA suit and granted plaintiff approximately $19,000 in attorney fees and costs. The Court reasoned that while it was unnecessary for plaintiff to file suit prematurely, release of the documents was largely related to filing of the suit and aided public discussion of nuclear energy policies. There are several troubling aspects of this case which the Court ignored in its one and one-half page, cursory opinion.

The NRC and the United States Attorney's Office have recommended that the Justice Department appeal the attorneys fees aspects of the case.

4 23 United Nuclear Corp., et al. v. EPA, et al. (U.S.D.A. D.N.M. Civ.

83-1602C; 10th Cir. No. 84-1908)

Contact:

Neil Jensen x 43224 On October 14, 1983, three uranium millers, the United Nuclear Corp., Kerr-McGee Nuclear Corp., and Homestake Mining Co., filed suit against the Environmental Protection Agency (EPA) and the NRC contending that EPA failed to meet the October 1, 1983 deadline for promulgating final environmental standards for uranium mill tailings. Among other things, the companies have asked the court to enjoin the NRC from implementing and enforcing EPA's standards and to adjudge and declare the respective responsibilities and obligations of the EPA and the NRC with regard to the future regulation of mill tailings under section 275 (b) of the Atomic Energy Act of 1954, as amended. On May 24, 1984, the District Court determined that it lacked jurisdiction, holding that the Uranium Mill Tailings Radiation Control Act of 1978, as amended, vests the courts of appeals with exclusive jurisdiction to consider such a petition. Plaintiffs appealed this decision to the 10th Circuit. On November 13, 1984, the Court ordered that this case be consolidated with American Minine Congress v.

Ruckelshaus, et al., Nos. 83-2226, 83-2277, 83-2504, 84-1349, 84-1482 and 84-1352 (10th Cir.).

On September 3, 1985, the Court issued its decision in the consolidated cases upholding EPA standards for. mill tailings at active uranium mills. 772 F.2d 640. (In a companion case, American Mining Congress, et al. v. Thomas, et al., 772 F.2d 617, the court upheld EPA standards, with one exception, at inactive mill sites.) The Court affirmed the District Court's holding in United Nuclear Corp. that jurisdiction over the appealed issues lay exclusively in the Court of Appeals.

The millers have been denied en banc review, but we are not closing the case until their Supreme Court appeals are exhausted.

. - . 24 CLOSED CASES Abbotts, et al. v. NRC (D.C. Cir. No. 84-5423) (Appeal from D.D.C.

No.77-624)

Contact:

William Briggs x 41465 On April 11, 1977, John Abbotts, the Public Interest Research Group and the Natural Resources Defense Council filed a Freedom of Information Act suit challenging the NRC decision to withhold certain safeguards information in numerous documents. The dispute was narrowed to small classifed portions of two documents, the Shankle Report and the GESMO Report. In both instances, plaintiffs contested the proper classification of certain

" baseline threat level" information. On July 22, 1983, the district court decided supplemental cross-motions for summary judgment pending before it since 1979. In that decision, the court ruled that NRC had waived confidential treatment for one document (the Shankle Report) and, as a result, it denied applicability of Exemption 1 and ordered the release of that document. The court also ordered an evidentiary hearing to decide whether there is a valid Exemption 1 claim by NRC for the other document (the GESMO Report) . The parties filed Renewed Cross-motions for Summary Judgment on the GESMO Report. Following an August 16 hearing, on September 30, the court ordered the filing of in camera affidavits in support of the NRC's Exemption 1 claim for that document. The NRC filed its in' camera affidavit on December 7. On May 9, 1984, Judge Bryant granted the plaintiffs' motion for summary judgment on the grounds that the withheld baseline threat figures are no more sensitive than similar information already in the public domain so that release of this information cannot reasonably be expected to harm national security. Due to the passage of time, the Commission determined that the Shankle Report could be declassified; however, it strongly urged an appeal on the GESMO Report. The Department of Justice agreed to appeal to the D.C. Circuit the lower court's

GESMO decision and on July 9 the Court of Appeals unanimously upheld'the NRC's classification decision on the GESMO report.

Anthony, Robert L. v. NRC (3rd Cir. Civil Action No. 84-3409)

Contact:

Trip Rothschild l x 41465 On July 2, 1984, Robert L. Anthony and the Friends of the Earth in l the Delaware Valley, intervenors in the Limerick operating license l

s a . 25 proceeding, petitioned the Third Circuit for an order requiring the removal of the unirradiated fuel from the Limerick site. The petition also sought an injunction restraining the NRC from issuing a license amendment permitting Philadelphia Electric Company ("PECo") to move the fuel inside. Mr. Anthony argued that the Part 70 license for Limerick should be reversed because there was not proper notice of the license application. He also alleged that he was denied a right to an adjudicatory hearing and that the Licensing Board lacked jurisdiction over Part 70 contentions. On May 13, 1985, the Court upheld the decisions of the NRC.

Cranston, et al. v. Reacan, et al. (D.D.C. Civil Action No. 84-1545)

Contact:

Trip Rothschild x 41465 Nine petitioners, who include three Congressmen and six environ-mental organizations, sued the President, the Secretaries of State and Energy, the Director of ACDA, and the five NRC Commissioners challenging defendants' approval and implementation of certain

" Agreed Minutes" to the Agreements for Cooperation with Sweden and Norway. The Minutes provide for the advance, long-term consent of the United States to the transfer to France and the United Kingdom of spent reactor fuel subject to.the Agreements. Plaintiffs argued that approval of reprocessing can only be done on a case-by-case basis and that the Minutes violate the Nuclear Nonproliferation Act. On June 20, 1985 the Court issued an order granting the government's motion to dismiss the complaint. The Court held that the issue raised by petitioner constituted a non-justiciable political question.

Duke Power Company v. NRC 770 F.2d 391 (June 24, 1985)

Contact:

Peter Crane x 41465 On August 20, 1984, Duke Power filed a petition for review chal-lenging as. arbitrary and capricious the Commission's approval of a staff decision not to grant Duke Power an exemption permitting the Emergency Operations Facility for Oconee Nuclear Station to be located 125 miles from the plant. The case was decided on June 24, 1985 in the Commission's favor. The Court issued a per curiam decision reviewing the facts and Duke Power's arguments but was unwilling to substitute its judgment for the Commission's judgment, deferring to the NRC's responsibility and expertise in the field of nuclear safety.

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.a e 26 On July 17, 1985, the NRC filed a motion in the Fourth Circuit asking the Court to publish its opinion, which had been issued as an unpublished decision. Duke Power opposed the motion. On August 21, 1985, the Court granted the motion for publication.

The case is now closed.

Joseph W. Johnston v. NRC, et al. (7th Cir. No. 84-1583) (On appeal from N.D. Ill. No. 83-C-3615)

Rockford Newspapers, Inc. v. NRC, et al. (N.D. Ill. No.

83 C-20074)

Contact:

Leo Slaggie x 43224 In prior lawsuits which form the background for those cited above, Rockford Newspapers, Inc. and the ACLU (Johnston) moved the Federal District Court for the Northern District of Illinois on May 25, 1983, to grant a Temporary Restraining Order (TRO) to _

prevent the Licensing Board in the Byron OL proceeding from taking in camera the testimony of two informants who were expected to testify about quality control at Byron. The District Court denied the TRO on the grounds that the Licensing Board had yet to make the decision that in camera and/or ex parte hearings were necessary to protect the informants and to avoid prejudicing the investigation, but suggested that-if the Board did decide to go in camera, then the closed proceeding should not be held until the court could rule on the motion for the TRO. The Board, however, did not decide to go in camera since the intervenors decided not to have the informants testify in person. The Licensing Board closed the record in the OL hearing without ever making a decision to hold in camera sessions. On August 9 and 10, the Board held in camera ej parte hearings to determine whether pending

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investigations warranted holding open the record. On August 16, 1983, the ACLU and Rockford Newspapers brought the lawsuits cited above seeking a declaratory judgment that the Sunshine Act applies to proceedings before NRC Licensing Boards. On November 9, 1983, the U.S. Attorney in Chicago filed a motion to dismiss based on a lack of case or controversy or, in the alternative, for summary judgment on the grounds that the Sunshine Act does not apply to licensing board proceedings. The District Court found the case

" capable of repetition yet evading review" and went on to dismiss on the latter grounds. The plaintiffs appealed to the Seventh Circuit. On July 15, 1985, the Seventh Circuit dismissed the appeal. The Seventh Circuit saw the plaintiff's action as an attempt to challenge the NRC's Sunshine regulations when no meeting had actually been closed or scheduled to be closed. The Court found that such challenges can be brought only in the D.C.

Circuit. Thus, the District Court erred, among other things, in finding subject matter jurisdiction to hear the case.

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• 27 Long, et al. v. Salt River Project Agricultural & Power District, et al. (D.D.C. Ariz. No. 83-2397 PHX CAM)

Contact:

Michael Blume x 41493 John F. Long is a developer and builder in the Phoenix, Arizona area. In this action against the NRC and Salt River Project Agricultural ~& Power District, he claimed that the arrangements for providing cooling water for the Palo Verde nuclear units should be voided for several reasons, including alleged violations of the antitrust laws by SRP and the City of Phoenix. Long com- >

plained that the NRC EISs violate NEPA, failing to address the impact on Phoenix growth and water prices of Palo Verde's use of water, and that further consideration and operation of the units should be enjoined until NRC prepares a supplemental EIS. Ac Mr.

Long never participated in the extensive NRC administrative litigation concerning the EIS, and never sought to do so, we moved to dismiss the claim against the NRC for failure to exhaust administrative remedies. We also argued that the District Court does not have jurisdiction over the Commission's licensing decisions; rather, under AEA S 189 and the Hobbs Act, jurisdiction lies with the Courts of Appeals. On April 19, 1985, the Court dismissed the NRC from the lawsuit without prejudice. The parties remaining have since settled this litigation.

Trombetta v. NRC, et al. (3rd Cir. No. 83-1886; appeal from E.D.

Pa. No. 82-2192);

Trombetta v. NRC, et al. (3rd Cir. No. 84-1447; appeal from E.D.

Pa. No. 82-3345)

Contact:

Trip Rothschild x 41465 Mr. Trombetta, pro se, sued the NRC, the NLRB, the Labor Department and several private defendants concerning resolution of his claims that he was fired from his job at the Calvert Cliffs plant for voicing safety complaints. The complaint is not clear and apparently sought either (1) a remedy for his discharge or (2) a release or a " correction" of information about him under the FOIA and the Privacy Act. On June 9, 1983, the District Court granted summary judgment in favor of defendants on all issues except whether NRC and Labor violated any of Mr. Trombetta's rights under (a) the FOIA or (b) the Privacy Act and set the matter for trial. On June 22, the government moved for reconsid-eration, pointing out that Mr. Trombetta had not met his burden to overcome the government's affidavits in this case. On October 3, Judge Lord denied all of plaintiffs' motions and granted summary judoment for the government. On December 6, 1983, Mr. Trombetta

0

'" ' 28 filed a Notice of Appeal in the Third Circuit. The Third Circuit dismissed the appeal and affirmed the district court's opinion on June 1, 1984. Mr. Trombetta returned to district court with a motion to reopen the suit under Rule 60 (b) . This suit is based on allegations of fraud and new evidence. The new evidence consists of the " discovery" that he could have named additional parties to the suit. On July 12, 1984, the District Court denied his motion.

On July 17, 1984, plaintiff appealed this decision to the Third Circuit. The government's brief was filed on October 10, 1984.

The Third Circuit on January 24, 1985 affirmed the dismissal of the motion to reopen.

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