ML18337A092
| ML18337A092 | |
| Person / Time | |
|---|---|
| Issue date: | 11/30/2018 |
| From: | NRC/OCIO |
| To: | |
| Shared Package | |
| ML18337A122 | List: |
| References | |
| FOIA, NRC-2019-000009 | |
| Download: ML18337A092 (11) | |
Text
POLICY ISSUE (lnfor~ation>
January 22. 2018 SECY-18~0009.
.FOR: The Commissioners*--,
FROM: ~ndrew P.. Averbach /RA/
Solicitor
SUBJECT:
ANNUAL REPORT ON COURT LITIGATION (CALENDAR YEA'R 2017) p * ,'
PURPOSE:
To inform the Commission of the status of litigation in the courts.
DISCUSSION:
Enclosed is a report updating court litigation sincethe last annual report dated January 26, 2017 (S!=CY-17-0012). It includes cases filed through the end of 2017 but reflects the status of NRC cases in court as of January 22, 2018. * *
- During the reporting period (Calendar Year 2017), -the Commission or NRC officials~were sued two times in the courts of appeals. 1 One lawsuit was commenced in federal district court. 2 -
During this same period, one ca$e was closed. 3 The number of.new filings in 2017 is somewhat smaller than recent years. There.were 4 new lawsuits (including cases filed in federal district
. court) in 2016, 10 in 2015, 6 in 2014, 3 in 2013, 5 in 2012, 11 in 2011, 9 in 2010, 8 in 2009, 13 in 2008, and 11 in 2007, for an average qf 8 new lawsuits per year over the prior ten years.
We have also continued to manage incoming discovery demands and/or subpoenas in lawsuits brought by or against the United States or in which the United States and/or its agencies have been named as a third:..party defendant. Much of this work has involved responding to requests CONTACT: Andrew P. Averbach, OGC (301) 415-1956 1 Oglala Sioux Tribe v. NRG, No.17-1059 (D.C. Cir.); In re State of Texas, No. 17-60191 (5th Cir.).
. /*
-2 Berka v. NRG, No. 1:17-cv-02836-APM (D.D.C).
3 '
Sustainable Energy & Economic Development Coalition v. NRC, No. 16-1108 (D.C. Cir.).
I
Ttle Commissioners for documents related to the*activities of the Atomic Energy Commission (AEC) and/or its licensees, and working with the Department of Justice to review pleadings and implementing litigation holds for materials that may be relev~nt to ~ngoing litigation. The enclosed report includes a section cataloguing cases of this type ii"! wh.ich the agency has located potentially responsive materials. Cases in which no responsive materials were located are not included.
Finally; during this reporting period w.e handled 5 new "Touhy" requests for NRC testimony, depositions, or other evidence for use in private litigation. See 10 C.F.R. § 9.200 et seq.
Encl.osure:
) '
LITIGATION STATUS REPORT
- (As of January 22, 2018) .
ACTIVE CASES1 Berka v. NRC, No. 1: 1?~cv-02836-APM .(D;D.C) * . . .
On 'December 14, 2017, George Berka commenced a lawsujt in the U.S; :District Court for the
- District of Columbia seeking to require the NRC to amend its rules soas lift restrictions on the process by vvhich power plants that have ceased operations may restart: Mr. Berka'had * , . .
a previously sought such an amendment fo,the NRC's i"ules*via petition for rul~making filed *in
- a 2015, but the petition Was not docketed as result of Mr. Berka's failure to satisfy the agehcts filing criteria .. NRC.is represented by the U.S. Department ofJustice in the inattef. *.No action
. has yet been taken on the complaint. . .
CONTACT: Jennifer Scro, OGC 301-287-9081 .
Beyond Nuclear, Inc.' v. NRC, No. 15-1173 (D.C. Cir.) .
This petition for review challenges two orders associated With NRC's. issuance of a combined license to DTE' Electric Company for Fermi Nuc!eai:: Power Plant, Uri it 3. In the first o'rder (CU~
15".'13), the Commission uph_eld the Board;s dismissal,on timeliness grounds of.Beyond* .
Nuclear's contention .challenging NRC's. NEPA compliance with resp~ctto consideration of the
- environmental impacts of the. anticipated transmission corridor for Fermi Unit 3.
- The .* , ** .
- Commission ~lso declined in that order to permit the Board to consider, on a. SUB spohte basis in
. a contested proqeeding, NEPA iss.ues related to the transmission corridor. *In the seccmd order, (CLl-14-3), the Commission denied 13eyond Nuclear's petition to review the Board's ru*li,ng in favor of the license applicant on. its challenge to the adequacy of the applicant's quality* *
. assurance program.
On November 27, 2017, the court issued~ brief order denying the petitio.n for review, finding that (1) the Commission neither plainly erred norabused.its*discretion in deeming Beyond:
- Nuclear's transmission corridor c_ontentii:>n untimely .and decllnJng .to consider the contention on a sua sponte basis, as the ASLBP had proposed; and (2J the Com*mission reasonably Upheld
- the Board's determination with respect to DTE's *quality as~urance program, given that its fi:1ciual .
findings were' supported by the recqrd and its interpretation of the relevant regulations was. .:.
correct. Beyo,nd Nuclear has until February 26, 2018, to~eek Supreme Court review.
CONTACT: Michelle D, Albert, OGG.*
301 ~287-9259
- 1 For statil3tical purposes, we counted as "active" any case pending before a court, or still subject to further judicial review; as of January 1, 2016. However, the narratives accompanying the cases listed in this report include any post-January 1*developments. * *
- Enclosure
Friends of the Earth v. NRC, No. 16-1004 (D.C. Cir.)
Friends of the Earth (FOE) seeks review of a Commission decision (CLl-15-21) that denied FOE's attempt to intervene in NRC proceedings related to the renewal of.the Diablo Canyon operating licenses. FOE argued before the Commission that the operating licenses.for Dial:>lo Canyon Units 1 and 2 may not be renewed-until the agency explores, in an evidentiary hearing, the impact of the certain seismic information on the safe operation of the plant; the Commission
- affirmed the dismissal of-its contentions and denial .of its related waiver request. On June 20, 2016, FOE and Pacific Gas and Ele.ctric Company (PG&E), along with other.pa~ies, submitte~ ~
joint settlement proposal. to the California Public Utilities Commission (CPUC), und~r the terms of Which PG&E agreed to, inter alia, retire Diablo Canyon at the expiration of its cu*rrent .
operating licenses. On June 29, 2019, PG&E and FOE jointly requested that the court suspend briefing in this matter pending action by the CPUC. On July 21, io16, the court entered an
. order hoiding the case in abeyance and directing the parties to file status reports at 120-day intervals.
CONTACT: James E. Adler, OGC
.301-287-9173 Kandel v. United States, No. 06-cv-872 (Fed. Cl.}
This is a class-action suit brought against the United* States by federal retirees seeking additional retirement benefits on account of the mishandling of annual leave at the time of.
retirement. -The parties pr~pared a stipulation with respect to certain agencies, including NRC, for which sufficient information concerning the calculation of damages has been provided, and a partial settlement agreement has been reached. The parties have not been notified yet about the final disposition, *
- CONTACT: Mark J. Maxin, OGC 301-287-3424 Natural Resources Defense Council v. NRC, No. 16,-1298 (O.C. Cir.)
Natural Resources Defense Council and Powder River Basin Res.ource Council have filed a petition for review.of CLl-16-13, the Com,mission's ~ecision upholding the iss1Jance of a license to Strata Energy to build and operate an in situ uranium recovery facility in Wyoming.
Petitioners assert that, where the NRC Staff prepares a final environmental in:ipact statement .
and issues a license prior toan adjudicatory hearing, Jhe agency violates NEPA when the presiding officerof that hearing considers supplemental information that was not included in the
- EIS .. Petitioners also challenge several of the agency's fi_nqings on the merits with respect to environmental risks and impacts to groundwater associated with the license, as-well as the rejection or dismissal of contentions prior to the adjudicatory hearing based on failure to comply with NRC rules of procedure. Oral argument was held on October 10, 2017 before Judges Kavanaugh, Williams, and Ginsburg. On January 22, 2018, the court.issued a decision*
deeming the NRC's augmentation of the environmental record through its adjudicatory process to be permissible and rejecting petitioners' remaining arguments. Petitioners have 45 days to seek rehearing .and, if no rehearing is sought, 90 days to seek Supreme Court review.
CONTACT: EricV. Michel, OGC 301-287-3704 .
- ~
I Oglala Sioux Tribe v. NRC, No. 17-1059 (D.C. Cir.) .
This petition for review by the Oglala Sioux- Tribe challenges ;the issuance of a license to Powertech (USA), Inc. for.the Dewey~Burdock in situ recovery proje~. *including the Commission's decision in*CLl~16~io. Among otherAhings, that decision affirmed theJicensing board's dlrection thatthe staff submit rnonthly status reports concerning efforts to resolve certain deficiencies that the board had identified related to the treatment of cultural .and historic resources and* tribal_ consultation. The Tribe :asserts that issuance ofthe license violates. NEPA, the NHPA, and .the'Atoniic Eriergy Act. . NRC moved Jo-dismiss tlie petition, asserting that the*.,
decision under review <;loes,not constitute final agency action bec~o.1se*c,Uhe ongpirig. . .
consideration,by the: licensing board of NEPA'anc!f NHPA issu~s., The court declined to rule On the motion and directed th~ parties to include:the j1;1risdictionalarguments in their briefs:. The -.
tribe filed its*brief on Jurie.21; 2011;*the NRG.filed its,briefoh August 10;:raising its jurisdi9Uo.n'al arguments and_ *asserting that the Board and Conimjssion acted appropriately in declining to .
vacate the license while th~*deficiencies.identified*:in.the adjudicatqrypro_ceedings are resolved.
- and in. resolving the Tribe's other contentions;* Powertecti filed its brief on August 30; and .*
petitioner filed its *repiy pri September-21. Oral argument is scheduled for March 20, 2018.
CONTACT: Jarries E. Adler, OGC 301-287-9173 .
. Nevada v. NRC, No. 09-.1133 (D.C. Cir;)* .
This petitic;m for review challenges NRC's "Yucca Mountain Rule.~ 10 C,F.R. Part 63,.which implements an EPAl'ule establishing sta.ndards for.reviewin'g the Yucca Mountain-repository application. Given the suspension ofadjudicatory proceedings before.the Comrrii~_sion:related.
to Yucca Mountain and.the uncertainty surrounding the Yucca Mc:>untain,project(inc_ludihg the* -
lack*of hew appropri~tions frorn Cong_ress from the Nuclear Waste. Fund), *the case has been.. **.
held in abeyance, subject to periodic status-reports. In these reports; the parties have advised the court of the resumption of the lic~hsing process -following. the issuance of a wrifof mandamu*s in' In re -Aikeri County.* The case remains in abey~nce;
/ ..
CONTACT: Jeremy M. Suttenberg, OGC 301-287-9154
ln re State*of Texas, No. 17-60191 (5th Cir.) .
The State of Texas filed a petition for a. writ of mandamus*and r~lated relief under the Nuclear Waste Policy Act, asserting that the NRC,has violated its obligations under the Act and under the writ of mandamus issued:*by the D.c~ Circuit in In re Aiken County by keeping the*.
adjudicatory proceedings associated with .the Yucca Mountain repository in suspension. Texas also seeks relief against the Departments of Energy and Treasury, and it has asked the court, among ott,er things, to require the resumption of the adjudication *and to require the NRC to request additional funds from Congress for purposes of issuing a final .decis_ion on the license applicatior:i, Te~as also filed a motion for a preUminaiy injunction against DOE, seeking to stop DOE's consent.;.based siting activities; and Nevada, as. intervenor, moved to dismiss the case, asserting a variety of jurisdictional arguments. NRC filed a response to the petition on June 29, 2017, asserting that the relief sought against the agency was untimely, moot,* and filed in the wrong court, _and that, on the merits, the petition should be denied because the NRC .had acted in accordance with its obligations both under the Nuclear Waste Policy Act and the D.C. Circuit's
_mandamus order in Aiken County_. DOE andTreasury filed-a response on June 30, 20.17, raising both procedural and substantive defenses; the respon*ses of NEI ancl Nevada were filed on Ju1y*31, 2017. No further briefing has be.en directed by the court.
CONTACT:* Charles E. Mullins, OGC.
301-287-9156 Ohngo Gaudadeh Devia v. NRC, Nos. 05~1419, 05-1420, 06-1087 (D;C . .Cir.)
This* is the caption for three consolidated lawsuits* filed by dissident Goshutes and the State of Utah challenging a series of Commission adjudicatory decisions authorizing issuance of a license. for the proposed Private Fuel Storage (PFS) spent fuel storage facility. The case is fully briefed, but the court of appeals decidecl to hold the case in abeyance becau~e PF.Shad failed to obtain necessary approvals from Department of the* Interior (b_OI) sub-agencies and the case was therefore not ripe for review; PFS wentto federal district court to .challenge the other
- agencies' decisions. PFS prevailed in 2010, obtaining a remand to DOI. .Ever since, the -parties
- have filed a series of joint status reports in the D:c. Circuit agreeing that the case should remain in abeyance *pending further developments. *
- 1 CONTACT: Grace H. Kim, OGC 301-287-9153
CLOSED:CASES Sustainable Energy & Economic Development Coalition v. NRC, N_o. 16-1108 (D.C. Cir.) .
This case involves petitioners' contention that a foreign, minority owner (Toshiba America Nuclear Energy Corp9ration) ofthe South Texas Project Units 3 arid 4,*effective.ly took control.of the proj~ct .through financing arrang~mentswith the license *applicant (Nuclear Innovation *North America; LLC) such that issuance ofa license would VIOiate the prohibition:againstforeign ownership, control; -or domination.(FOCD) of nuclear. react9rs ,under*t~eAtqmic Energy Act. :- , ..
The Licensing Board resolved the. FOCD contention against petitioners, *finding that i~suance of a license for the units-would nof violate the FOGD.prohibitiort
- Jtie Comniissiorideriied review
- in CLl-15-07; :On April 11 ;*2016; the SustainahlifEnergy and EconomicD~velopment Coalition
.(SEED) and tw<;> other petitioners filed. a petition for review of the issuance -of CO Ls for South*,.;:
Texas Project Units~ and 4;.. Petitioner~-chaUe.nged the decision in CLl-15,.07 that-the licensee was not subject to foreign ownership, control; or domination-.. SEEO subsequently amend~d its
- petition to add a challenge to the denial of SEED's motion to reopen the recorl:i so as to admit its "placeholde_r" *contention ,challengi_ng the Commissioil's reliance .on-the Continued Storage Rule when it issued the COLS :and moved to hold the case .iii at;>eyance pending' the court's resolution of New °Vork v. NRG. -Following resolution of thafcase arid after the court issued a briefing schedule, SEED announced that- it no longer sought to pursµe the petition for review. -
- On March 31, 2017, the parties entered a joint stipulation dismissing the: case voluntarily.
/
CONTACT: Grace H. Kim, OGC
/. 301-287-9153
CASES IN WHICH NRC HAS PARTICIPATE.D OR IS PARTICIPATING IN DISCOVERY ON BEHALF OF UNITED STATES 105 Mount Kisco Associates, LLC v. Paul Caroz~a. No.7:15-,cv-05346-NSR-JCM (S.D.N.Y.)
This is a defensive case under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) alleging that the United States is iiable (as an operator, arranger, and transporter) for radiological contamination at a site ih Westchester County,*New York. The plaintiffs allege that the:bi.Jsiness at the site processed ore for the Manhattan Project. From 1942 into the rhid.,1960s, the Canadian Radium plant in MountKisco, NewYork,-processed uranium ore and other radioactive materials. During some portion of this period, the plant apparently provided.refined uranium to. the Government for the Manhattan Project It also sold the other radioactive elements it extracted from this ore (for example, radium) to.other non-*
governmental clients. The facility stopped production by 1966.
At the request of the Department of Justice, the NRC provided materials related to the site's
- AEC license; . The Court has stayed discovery while it considers a motion to dismiss by the non-federal defendants.
CONTACT: Charles E. Mullin~. OGC 301-287-9156 Atlantic Richfieid Co. v United States and the Pueblo of Laguna, No. 1:15-cv-00056 (D.N.M.) .
This is a iawsuit under CERCLA seeking recovery for cleanup efforts at the Jackpile mine site in New.Mexico. All defendants moved to dismiss the case, and the court stayed discovery while it considered the motions. On February 9, 2016, the court dismissed the United States as a party, but the case is still proceeding with respect to other parties .. NRC was asked to locate and*
retain relevant documents. * '
Atlantic Richfield has no!J¥ negotiated an administrative order on consent with the Environmental Protectio~ Agency and has entered into settlement negotiations with the United States.
CONTACT: Charles E. Mullins, OGC 30f-287-9156
-?-
Commonwealth of Pennsylvania v. Lockheed Martin Corp., No. 09-cv-0082:1 (M.Q: Pa.)
In 2009, Pennsylvania.filed a,CERCLA ~se.agai_nst Logk~eed M1;1rtin over the cleanup of the_
Quehanna'site in central P¢rinsylvania. Lockheed Marl:in;.-*in turn, sued the United S_tates for contribution; alleging thatthe vyaste* left at the site was-due to activities perfe>rmed;plirsuant to government contracts, including contracts that involve. the activitles of the Atomic Energy -- :
Commission.-: The parti~s completed-settlement neg6liations, rea_ched an-agreernent,.and filed*
a joint-motion for.a consent decree;which.t'!as been entered .by the Court. The'.decree dismissed botlithe _curtent_case as wen.as all reimbursement.claims against the:United States,.
though .the dismissal was without prejudice to Loc:Jcheed's .right to file a breach ofcontact claim -
against.the Department of Energy 111 :the Court of Federal Claims. No further participation by* the NRC is contemplated. -
CONTACT: Charles E. Mullins, OGC 301 ;.287-9156 El Paso Natural Gas_ Company v. United States, No. 07-cv-905 (D.D.C.)
- El Paso Natural Gas filed this lawsuit to compel the United.States:to clean-up two sites
- associated with the Tuba City.Mill: theTuba City Dump*, ancl the Highway 160 site. NRC is a named defendant in the lawsuit, along with other federal agencies and the United States. All defendants are represented by the Department of Justice.
The suit-asserts a 11un_iber.oftheories of liability including the Administrative Procedure Act (APA), C!=RCLA,the*Reso urce Conservation Recovery Act (RCRA), and thelJraniun, MiJI Tailings Radiation Control Act.(UMTRCA), The Navajo:Nation -has intervened as a plaintiff. The district:courtdismis sed the APA and UMTRCA claims against the Department of.Energy and issued a partial judgment allowing EIPas_o'to appeal on those issues to the 1D.$; Circuit. That
- court affirmed the district court's dismissal order.* El Paso Natura/Gas.Co. .v. United:States, 632
. F.3d 12721 "(D.C: Cir. 2011). The United States then moved for dismissal of the remaining.
claims and the district court granted that motion as well.
Both plaintiffs appealed and the D.C. Circuit affirmed the dismissal of most of the claims with two exceptions. El Paso Natural Gas Co. v. United States, 750 F.3d 863 (D.C. Cir. 2014). First, the court of appeals agreed that one of the plaintiffs' claims should have been dismissed "without prejudice" instead of"with _prejudice." Second, the court re-instated the plaintiffs' RCRA claims relating to groundwater contamination at the Highway 160 site an_d reman_ded them to the district court for further proceedings. .
The district court held the case in abeyance to allow the parties to engage in settlement
. negotiations. The parties reached a settlement agreement that resolved the claims of the Navajo* Nation. The agreement provides, intera/ia, for the drilling of additional mqnitoring wells and th_e possibility of further legal action based on any new data observed. The Court entered _
an order dismissing the case but retaining'jurisdiction to the extent that it allows the Navajo Nation to re-file a lawsuit depending on the data obtained from the monitoring wells. No further participation by the NRC is _contemplated. *
- CONTACT: Charles E. Mullins, OGC 301-287-9156
EPEC Polymers, Inc. v. NL Industries, Inc;;, No. 3:12-cv-03842 (D.N,J.) . .
The United States is defending against a thirda.party complaint alleging that .the Army Corps of Engineers is responsible for environm eritalresp onse costs und~r CERCLA because it dredged
- thorium-containing materials from the Raritan River in New Jers~y and disp9sed of them on a site now owned by the plaintiff; The plaintiff alleges* that the thorium was discharge d from a facility owned by-defendant NL Industries, Inc., in Sayreville , New Jersey. NL in turn alleges*
that the thorium is traceable to .the activities of Tenneco Chemicals; Inc,; the holder an AEC license, and that NRC performed a field team investigation and approved the decommissioning of plaintiffs site in the late 1990s or early 2000s.
- NRC has wqrked with theDepar tment of
- Justice to obtain documents related to _the AEC license and the field team investigation.
The United States has completed its documen t production, but additional p'roduction may occur as the site ciean-up continues. The case is now in mediation.
CONTACT: . Charles E. Mullins, OGC 301-287-9156 .
Jeremy M. Suttenberg, OGC 301.;287'.'"9154.
United States v. Energy Solutions, lnc;.No. 1:16-cv-01056'."GMS (D. Del).
lh late 2016,' the United States commenced an action seeking to block the merger between Energy Solutions, Inc. and Waste Control Specialists, Inc.; on the .ground that the merger would
- have anticompetitive effects on the market for low.;;level radioactive waste disposal. NRC.
- responded to a subpoena issued by the defendants (which it processed in accordance with its
Touhy" regulations) and produced responsive materials. On June 21, 2017; following a trial, the .district court issued an order enjoining the merger; * *.
CONTACT: . Andrew P. Averbach, OGC (301) 415-1956 .
The Commissioners Distribution:
A. Averbach/A. Averbach's Chron M. Doane B.Jories M. Zobler E. Williamson B.Ammon M. Clark M. B. Spencer.
- T. Campbell C. Safford J. Bielecki P. Moulding M. Lemoncelli S. Vrahoretis J. Martin C. Scott C. Kanatas M: Maxin R. Baum WEST KM Document Name: G:\LC\Averbach\Admin\LitigationReports\Annual litigation report 2018.docx ADAMS ML No.: ML18022A257 . .
.Office: OGC OGC OGC OGC N~me:** "* A. Averbach Date.:. ' 01/22/18 OFFICIAL RECORD COPY