ML19295E128
| ML19295E128 | |
| Person / Time | |
|---|---|
| Issue date: | 11/10/1980 |
| From: | Eilperin S NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML19295A140 | List:
|
| References | |
| TASK-AII, TASK-SE SECY-A-80-176, NUDOCS 8011200121 | |
| Download: ML19295E128 (35) | |
Text
.
UNITED STATES NUCt. EAR REGULATORY COMMIS310N ADJUDICATORY ITEM November 10, 1980 SECY-A-80-176 a
i
)
- )
4 For:
The Commission j
si mi From:
Stephen F. Eilperin, Solicitor j
Subi ect:
Litigation Report -- !!ovember 1980 Discussion:
I am transmitting with this memorandum the OGC Litigation Report for !!ovember, 1980.
Since the last report for October, 1979, 21 cases have been closed in all of which the Commission prevailed and 32 new lawsuits have been brought.
In two still pending cases, however, ?!FS Erwin and Suscuehanna Vallev Alliance the Cor:rission received acverse cec:t.sions.
In the former, the D.C.
Circuit on September 29, 1980 stayed the immediately effec-tive military function rule the Commission had adopted for the ITFS Erwin hearing.
In SVA the Third Circuit on March 17, 1980 re-instated before the district court the !! EPA, Clean Water Act, and constitutionally based counts of SVA's complaint y
challenging the TMI clean-up over our obj ection that the case should have been dismissed for failure to exhaust administrative remedies.
4 Stephen F.
Eilperin Solicitor DISTRIBUTION
Enclosure:
Commissioners Litigation Report Commission Staff Offices Exec Dir for Operations ACRS ASLBP ASLAP Secretariat C0!iTACT :
Stephen F.
Eilperin, OCC 4-1465 U 0111.' 0 0 lf,l
Pending Cases Sholly v.
NRC (D.C. Cir., Nos. 80-1691, 80-1783 and 30-1784)
This lawsuit sought an injunction against the venting of Krypton-85 from the THI-2 reactor building.
In orders dated June 26, June 27 and June 28, the D.C.
Circuit denied the requests for injunctive relief.
In a companion case seeking essentially the same relief, PANE v. MRC (3d Cir. "os.
30-1c94 and 80-1905), the Third Circuit on July 10 transferred the cases to the D.C.
Circuit for disposition.
The cases were argued on the merits in September 1980, and are avaiting decision.
Susc:uehanna Valley Alliance v. Three Mile Island, 485 F. Supp. 81 (M.D.
Pa.), rev'd in part, 619 E.2d 231 (3d Cir.), Cert. net.
Pending sub nom. General Public Utilities Corp.
v.
Suscuehanna Valley Alliance (S.Ct. No.80-332) (TMI)
The Susquehanna Valley Alliance brought this lawsuit on May 25, 1979, alleging that the Comrission had approved the construction and operation of EPICOR-II, a demineralizing and filtration system designed to decontaminate intermediate-level radioactive waste water resulting from the TMI accident, and intended to allcu discharge of the treated water into the Susquehanna River in vio-lation of the Atemic Energy Act, the National Environmental Policy Act, the Clean Water Act and various provisions of the United States Constitution.
On that same day (and in response to a lawsuit raising virtually the same issues, City of Lancaster v.
NRC (D.D.C., No. 79-1368)) the Commissien issued a statement pro-
2 hibiting the treatment or discharge of contaminated water, except for certain routine operational releases, until completion of an environmental assessment.
On October 12, 1979, while the Commission was still considering EPICOR-II operation, the dis-trict court dismissed the complaint for lack of subject matter jurisdiction on the ground of SVA's failure to exhaust its administrative remedies.
Thereafter, the Third Circuit reversed the dismissal of SVA's claims under MEPA, the Clean Cater Act and the Constitution, but affirmed the disnissal of the Atomic Energy Act claim.
A petition for writ of certiorari, filed by the utility, is pending.
Union of Concerned Scientists v.
NRC (D.C. Cir. No. 30-1062)
On August 14, 1980, the Union of Concerned Scientists and five other organizations sought review in the D.C.
Circuit of the Com-mission's Statement of Policy entitled "Further Commission Guidance for Power Reactor Operating License", 45 Fed. Reg. 41738 (June 20, 1980).
Petitioners contend that the policy statement unlawfully discriminates between parties to NRC adjudications by permitting e,jlicants for operating licenses to challenge in each adjudication the necessity for the additional licensing require-ments contained in NUREG-0694, while prohibiting intervenors from challenging their sufficiency.
3 Citizens Action for Safe Enercy v. MRC (D.C. Cir. Fo. 80-1566)
This lawsuit, filed !!ay 27, 1980, challenges the Appeal Board's decision in ALAB-587 which deferred for the present further consideration of Class 9 accidents at Black Fox.
Petitioners contend that NEPA requires the Commiss ion to prepare a supple-mental environmental impact statement to consider the conse-quences of Class 9 accidents.
Briefing is expected to be completed by December, 1980.
atural Resources De fens e Council v. IRC (D.C. Cir. I:o. 80-1477)
TFhilippines) on :ay 6, 1980, a nunber of environmental groups sued to set aside two Commission orders, the first of which had found that the export of a nuclear reactor and certain components to the N
Republic of the Philippines met all the applicable licensing criteria in the Atomic Energy Act of 1954, as anended by the Nuclear Fon-Proliferation Act of 1978, and directed issuance of export licenses to the Westinghouse Electric Corporation.
In the second order the Commission declared that it would adhere to the policy reflected in its earlier licensing decisions and only con-sider those health, safety, and environmental impacts arising from exports of nuclear reactors that affect the territory of the L'nited States or the global coccons.
The case was argued before the D.C.
Circuit in September, 1980, and is awaiting decision.
4 Matural Resources Defense Council
- v. {_RC (D.C. Cir, Fo. 80-1328)
(Part 21)
Cn March 24, 1980. the Natural Resources Defense Council sought review of a January 23, 1980 letter from the Chairman of the Fuclear Regulatory Commission denying its request that the Com-mission rescind certain amendments to 10 CFR Part 21.
The Com-mission had adopted the amendments on October 19, 1978, without notice and conment, through the issuance of an irmediately effec-tive rule clarifying that items that are available in general commerce and which bave no unique design recuirements imposed for nuclear application, are not within the scope of the Commis-sion's rule pertaining to the reporting of defects in safety-related components.
Friefing was completed in October, 1080.
People of the State of Illinois v.
NRC (D.C. Cir. No. 80-1163)
(Bailly)
On February 7, 1980, the State of Illinois filed a lawsuit challeng-ing the Commission 's determination that the plan of the Northern Indiana Public Service Company for installing foundation piles for the Bailly nuclear facility was not a design change requiring a construction permit amendment and a hearing as of right, and was not of such safety significance as to warrant a discretionary hearing.
The Commission's decision noted that pilines issues had appropriately been left for later resolution, and that the Advisory Committee on Reactor Safeguards had advised that the use of shorter
5 pilings was not a significant design change from the standpoint of engineering.
Briefing was completed in October, 1980.
Natural Resources Defense Council v. NRC (D.C. Cir. Nos. 80-1863 and 80-1864) (UFS Erwin)
These lawsuits, filed July 28, 1980, seek review of two Commis-sion orders involving the MFS Erwin facility.
In No. 80-1863, URDC challenges an interlocutory Commission order that granted NRDC a hearing on a proposed license amendment for the UFS Erwin facility which was less adversary than petitioners sought.
In No. 80-1864 MRDC challenges an immediately effective rule issued June 26, 1080 which amended the Commission's rules of procedures to incorporate the military function exception of the Administra-tive Procedure Act, and applied that adjudicatory exception to the ongoing license amendment proceeding for UFS Erwin.
Cn September 29, 1980 the D.C.
Circuit denied the Commission's motion to dismiss the rule challenge, stayed the rule pending appeal, and held the hearing case in abeyance.
San Luis Obispo Mothers for Peace, et al. v.
Fendrie (D.D.C.,
Mo.
80-2356)
Plaintiffs filed this lawsuit on September 16, 1980, seeking the disqualification of Commissioner Joseph M.
Hendrie from any further participation in the proceedings on the pending operatine license application for the Diablo Canyon "uclear Plant.
The basis for
6 their claim is both allegedly improper ex parte contacts between the Commissioner and utility company officials and his purported involvement in the review of the Diablo Canyon license application during his tenure as a staf f employee of the Atomic Energy Comris-sion.
The parties have filed dispositive notions and the case is awaiting oral argument.
Prairie Alliance v. UFC (C.D. Ill. No. 80-2005 General Flectric Co. v. URC (D.D.C. No. 30-2659)
On t!ay 7, 1980, the Prairie Alliance sued tSe UFC under the Freedom o f Information Act to compel disclosure of the General Electric Muclear Reactor Study known as the Reed Report for its principal author.
thile that lawsuit uas pending, on October 9, 1980, th e Commission on 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 thereupon filed a complaint and a request for a temporary restraining order to enjoin release of the report and require its return to General Electric, Judge Aubrey Robinson ordered that GF's case be transferred to federal district court in Illinois where the Prairie Alliance ca 'e had been filed, and enjoined the Commission fron releasing the Reed Report pending disposition of the case by that court.
A decision is expected in the first quarter of 1981.
7 Simnons v.
Arkansas Power and Liaht Comnany and NRC (E.D. Ark.,
LR-80-C-263, on aopeal, 8th Cir., No. 80-1633)
On May 30, 1980, plaintiffs Simmons, et al. sued Arkansas Power and Light Company, the NRC, the State of Arkansas, and various State agencies seeking an injunction against operation of Arknasas Power and Light Unit 1 alleging that the emergency planning and preparedness program for the facility is inadequate.
A hearing on the motion for prelininary injunction was held on June 17-18.
At the conclusien of plaintiffs' testinony and after argument on the motions to dismiss the lawsuit, Circuit Judge Arnold, sitting by designation, ruled from the bench that the constitutional clains were insubstantial, that there was no subject natter jurisdiction over the federal statutory claims for plaintiffs' admitted failure to exhaust remedies under 10 CFR 2.206 and because exclusive judicial review over NRC actions is in the U.S.
Courts of Appeals, and that the court lacked pendant jurisdiction over the state law claims.
Plaintiffs have appealed that ruling to the Eighth Circuit, where briefing was completed in October.
Duke Power Co. v. NRC (D.C. Cir. No. 80-2253)
On October 10, 1980, Duke Power Co. filed a lawsuit challenging the Commission's final rule on radiological emergency clanning issued August 11, 1980.
The utility indi-cated that it would also ask for Commission re-consideration of
8 the rule and would defer pressing the lawsuit pending Commission disposition of the petition for reconsideration.
Kerr-McGee Nuclear Corp.
- v. NRC (10th Cir. No. 80-2043) on October 3, 1980, Ferr-McGe.e petitioned the Tenth Circuit to review the Commission's Uranium Mill Licensing Eequirements which were issued that day.
45 Fed. Peg. 65521-33.
The comoalint con-tends that the Commission's regulations imposed a substantial and unreasonable burden upon Kerr-McGee 's uranien-processing opera-tions.
Ft. Pierce Utilities Authority v. URC (D.C. Cir. No. 80-1099)
On January 21, 1980, the Ft. Pierce Utilities Authority filed a lawsuit challenging the Commission's decision not to initiate at this time a Section 105a antitrust proceedine against the Florida and Power Light Company.
The request had been prompted by a Fifth Circuit decision ruling that the Commission licensee had conspired with Flcrida Pouer Ccmpany to divide the wholesale power market in Florida.
The Commission reasoned that Section 105a uas designed to supplement court ordered relief and that until the federal district court issued its decision it was unclear.; hat supplementary relief from the Commission might be necessary.
Briefing was completed in July, 1980.
9 Potomac Alliance v. NRC (D.C. Cir. Uo. 80-1862)
On August 28, 1980, the Potomac Alliance sought review of the Appeal Board's decision granting VEPCO an operating license amendment to expand the capacity of its North Anna Unit 1 spent fuel pool.
Petitioner claims that the Commission illegally failed to consider the environmental effects of storing spent fuel at the site after the plant's operating license has exnired.
The Commission's motion to dismiss the petition as untimely was denied on September 29, 1980.
Potemac Alliance v. MRC (D.C. Cir. No. 80-2122)
On September 18, 1980 the Potomac Alliance filed this lawsuit seeking to enjoin the repair of the Surry Nuclear Power Station Unit 1 steam generators pending a more complete environmental impact statement.
On October 3, 1980, the D.C. Circuit denied petitioner's request for an injunction.
Repairs on the steam generators were begun on October 5.
Eason v. NRC (D.C. Cir. No. 80-1382)
This is an appeal from the February 6, 1980 decision of Judge Penn which dismissed plaintiff's Freedom of Information Act request for a subscription to Media Monitor.
Judge Penn ruled that the FOIA did not encompass documents not yet in existence and that the Commission had not withheld any copies of the
10 publication The D.C.
Circuit heard argunent in the case on December 12, 1980.
Virginia Sunshine Alliance v. NRC (D.D.C. No. 80-2099)
On August 18, 1980, three groups brought suit to compel the Cocmission to release agency records concerning the details about routes for spent fuel shipments.
The adminis trative request had pre-dated enactment on June 30, 1980 of a new section 147 to the Atomic Energy Act.
Consequently, the reauest was re-evaluated in light of the new criteria when the lawsuit was brought.
On October 24 the Commission disclosed a number of documents to plaintiffs and filed an affidavit in court supporting the continued withholding of infornation cover-ing communication dead zones, safe havens, and law enforcement response capabilities.
l'. S. !belear Regulatory Commission v.
Radiation Technology-Inc.
(D.N.J. No. 80-2187)
On July 15, 1980, the Commission sued Fadiation Technology, Inc.
to collect civil penalties imposed by the NRC under Section 234 of the Atomic Energy Act, for a series of infractions and deficiencies at defendant's Rockaway, New Jersey facility.
A motion for summary judgment is in preparation.
11 Frisby, Kaiser and Clary v.
IRS, NRC and MSPB (D.C. Cir. No.
80-1442)
This lawsuit was brought on April 18, 1980 by employees of two federal agencies who had been dismissed from government service.
The Merit Systems Protecti.
re-opened the cases in light of the Board's decision in Wells v. Harris (MSPB No. PR-80-3) for hearing officers to determine whether dismissal would have been proper under the standards for adverse actions of 5 U.S.C.
Chapter 75 rather than under the Civil Service Reforn Act of 1978 where an OPM-approved performance system had not yet been properly implemented.
Gn re-consideration the hearing officer upheld the removal of the NRC employee.
Court oroceedings have been held in abeyance pending completion of the administrative proceedings for the other two former employees.
International Verbatim Reporters v. United States (Ct. C1. ?io.
458-80)
On August 27, 1980 IVRI sued the United States claiming that the NRC illegally breached plaintiff's contract to provide stenographic reporting services.
The Commission will counterclaim for excess reprocurement costs.
Its position is that the reporting company failed to provide adequate reporting services.
12 People of the State of Illinois v.
Ceneral Electric (M.D. I.11.
No. 7 9 -C-14 2 7, appeal pencing 8th Cir. ::o. 80-1962)
On April 11, 1979, the State of Illinois sued General Electric, the Commission, and the Department of Energy over the C.E. " orris spent fuel storage facility.
Illinois claimed that its Radio-a c t ive Ca s te Ac t violates the Illinois Constitution, is ore-empted by the Atomic Energy Act, and hence voids its perpetual care contract with GE, and that the Departnent of Enercy violated
'iFPA in not preparing an EIS to accompany proposed lecislation en the use of G.E.
Morris as an away from reactor storane site.
On December 18, 1979, Judge Will dismissed all but the EIE clain involving the Department of Energy; that latter clain was dis-missed as noot on Pay 8,1980 based on DOF 's expressed intention to prepare a site-specific EIS before acquistion of Morris or any other facility once congressional authorization was obtained.
On June 27, 1980 Illinois appealed.
Briefing was completed in October, 1980.
Uoliver v. URC (D.D.C. Uc. 80-2627)
On October 15, 1980 this Freedom of Information Act lawsuit was filed seeking a copy of a 1969 Sargent & Lundy Fnaineers' report to the Cincinnati Gas & Electric Company "An Econonic Evaluat!.an o f Alternatives".
The Connission had denied the reauest for the report under Exemption 4 as proprietary.
13 Connon Cause v.
FRC (D.D.C Fo, 80-2347)
Cn September 15, 1980, Common Cause filed a Sunshine Act lausuit against the "RC claiming that the Commission's July 18, 1980 budget meeting was improperly closed to the public.
Common Cause seeks a copy of the transcript of the neeting and an injunc-tion requiring that like meetings in the future be neld in open session.
The Commission ans.ered the complaint in November, 1980.
Three File Island Litication (M.D. Pa. No. 70-0432)
This is a consolidated complaint seeking roney danages for personal injuries, property losses, and business losses alleged to have resulted from the Three Mile Island accident.
On July 10, 1080, Judge Farbo ruled that the federal cistrict court properly had jurisdiction over the TMI litigation despite the fact that the Commission had deternined that the accident did not consti-tute an extraordinary nuclear occurrence because the lausuit in any event arises under federal law; second, that the lawsuit could properly proceed as a class action as to the " economic harm" classes; and third, that insofar as personal injury clains were involved that class action treatment was proper only as to the alleged need for medical monitoring services.
Judge Rambo specifi-cally decided that claims of erotional distress flowing from the TMI accident were too diverse and personal to be adjudicated by the vehicle of a class action.
The Commission is participating as a friend of the court in this lawsuit.
14 Friends of the Earth v. NRC (9tn Cir. No. 79-7311)
Tbis lawsuit sought review of the Comnission's June 22, 1979 decision to re-start Pancho Seco after it had completed various TMI-related modifications.
On July 5,19 79, the Minth Circuit denied emergency relief, and on Septenber 10, 1980, entered an order deferrin.c action on the merits until codpletion of the ongoing Licensing Board hearing.
State _of rew York and People of the State of Illinois v.
NPC (S.D.N.Y.
79 Civ. 4568)
This lawsuit follous similar suits by the State of ' ew York which sought to stop the air shipment of plutoniun pending preparation of an environnental inpact staterent.
Those earlier requests fo r injunctive relief were rejected.
See State of New York v.
NRC, 550 F.2d 745 (2d Cir. 1977).
The current lausuit challenges the adequacy of the NRC's environnental impact state-ment on the transportation of radioactive material (NUREG-0170) and is still in the early stages.
Upoer Skacit Indian Tribe, Suak-Suiattle Indian Tribe and 3D'inomish Tribal Community v.
URC (D.C. Cir. No. 79-2277)
On October 26, 1979, three American Indian tribes petitioned the D.C.
Circuit to review an appeal board decision denying their 3-1/2 year late petition to intervene in the Skagit construction permit proceeding.
The court has held the petitien in abeyance pending the outcome of the administrative proceedings.
The case should
15 soon be dismissed as moot since the utility no lonner plans to build the plant at the Skagit site.
Peshlakai v. Duncan (D.D.C. Fo. 78-2416)
This lawsuit was brought Eecember 22, 19 78 against a number of federal agencies; primarily the Department of the Interior but also including NRC, claimed that government actions affecting the ninin.c and milling of uranium violated FFPA because national, regional, and individual environmental inpact statements bad not been prepared on a multitudinous set of actions.
The case is essentially the nuclear analoFue of the Klenne case which dealt with similar claims regarding coal exploration.
Judne Harold H.
Greene of the feceral district court sau it as such in a Septem-ber 5, 19 79 opinion which denied claintiff's motion for a prelin-inary injunction to halt work at Mobil's pilot in situ plant project at Crown Point, New Mexico.
Thereaf ter, on Augus t 29, 1980, Judge Greene denied intiff's motion for partial sunnary r
judgment ruling that the t.g onal EIS issue presented disputed naterial issues of fact and hence was inappropriate for sunnary disposition.
John Abbotts v. NRC (D.D.C. No.77-624)
On April 11, 1977, John Abbotts, the Public Interest Research Group, and the Natural Resources Defense Council, brought a Freedom of Information Act suit challenging the NRC decision to withhold certain safeguard documents.
The dispute has since been
16 narrowed to two small portions of two documents specifically con-testing the proper classification of " baseline threat level" information.
The court must now decide whether to review the documents in camera and whether there is a valid exenption 1 claim by NRC.
Coalition for the Environment v. NRC (D.C. Cir. No. 77-1905)
(Callaway)
Lloyd Harbor Study Croup v.
URC (D.C. Cir. "o. 73-2266) (Shoreham)
Nelson Aeschlinan v.
NRC (D.C. Cir. Pos, 73-1776 and 73-1867)
(Midland)
Natural Resources De fens e Council v.
NPC (D.C. Cir. "o.
74-1385)
P!ermont Yankee)
These lawsuits challenge on uraniun fuel cycle grounds
(" Table S-3") the construction permits for Callaway, Shorebam, and Midland, and the Vernont Yankee operating license.
Briefing in these cases is being held in abeyance pending the D.C.
Circuit's decision in the fuel cycle rulemaking cases where the court heard argument in September, 1980.
See Natural Resources Defense Council v. NRC (D.C. Cir. Nos. 74-1586, 77-1448 and 79-2131) and State of New York v. NRC (D.C. Cir. No. 79-2110).
Natural Resources Defense Council v.
NRC (D.C. Cir. Nos. 74-1586, 77-1448 and 79-2131) and State of New York v. NRC (D.C. Cir.
"o.
79-2110)
These consolidated cases challenge three related versions of the Cornission 's uranium fuel cycle rule.
The rule speaks to the fact that the environmental impact of operating a nuclear power reactor necessarily includes the impacts of off-site fuel
17 cycle activitier which support the plant.
The rule sets out a table of values
(" Table S-3") to be used in individual licensing proceedings as a starting point for evaluating the contribution of fuel cycle activities to the environmental impact of light water power reactors.
Th e D. C. Circuit's consideration of these cases follows the Supreme Court's renand in Vermont Yankee "uclear Power Corp. v.
MRDC, 435 U.S. 519 (1978).
Cral argument was heard in Eeptember, 1980.
The D.C.
Circuit has beld in abeyance a series of cases involving application of the S-3 rule to individual facilties perding its decision in the rulemaking cases.
Fee Lloyd Harbor Study Group v.
URC (D.C. Cir. "o.
73-2266) (Shorehan),
Melson Aeschliran v.
NRC (D.C. Cir. No. 73-1776 and 73-1867) ("id-land); Eatural Resources De fense Council v.
FEC (D.C. Cir. No.
74-1385) (Vernonc Yankee); Coalition for the Environnent v.
MRC (D.C. Cir. No. 77-1905) (Callaway).
United States v New York City (S.D.U.Y. No. 76 Civ. 273)
On January 15, 1976, the NRC, DOE, and DOT sought a judgment declaring a New York City Fealth Code provision dealing with the transportation of nuclear materials through the city to be inconsistent with the federal statutory scheme governing the transportation of hazardous naterials.
The government's recuest for a preliminary injunction avainst enforcenent of the Heal th Code provision uas denied on January 30, 1976 in view of the absence of DOT regulations under the Hazardous "aterials Trans-oortation Act prohibiting such local ordinances.
On April 4,
18 1978, DOT ruled that the New York City ordinance was not incon-sistent with DOT's then existing statutory schene and regulatory policy but that a rulenaking would be held to consider what restrictions should be placed on local regulation of the routing of nuclear naterials.
The rulemaking has not yet been completed and the lawsuit is still pending.
State of Mew York v. MRC (2d Cir. No. 75-4278)
Matural Resources Defense Council
- v. MFC (2d Cir. :~o.
75 4276)
A_11ied General Nuclear Services v. MPDC (S.Ct. No.76-653)
Connonwealth Edison Co.
- v. MRDC (S.Ct. No.76-762)
Et1tinore Gas & Electric Co. v. MRDC (S.Ct. No.76-774) i Uestinghouse Electric Corp. v. MRDC (S.Ct. No.76-769)
These GESMO lawsuits have been pending before the Second Circuit ever since the Supreme Court on January 16, 1978, vacated the court of appeals decision in Natural Resources Eefense Council v.
- MRC, 534 F.2d 824 (1976), and remanded the case to the Second Circuit "to consider the question of mootness".
The court of appeals has not yet acted on our request to dismiss the cases as moot.
Vest MichiFan Environmental Action Council v. AEC (U.D. Mich.
No. G-58-53)
Plaintiffs sought an injunction against the increased use of mixed-oxide fuel in Consumer Power's Big Rock Point power reactor.
In June 1974 the court placed the case in abeyance pending the outcome of the CESMO proceeding.
The utility has not pressed its applicatien nor prepared the environmental
19 report oreliminary to pressing its application.
Settlement attempts to have the lawsuit voluntarily dismissed uithout prejudice to bringing a new lawsuit should the utility activate its application have thus far been unsuccessful, and the case remains inactive on the court's docket.
"innesota Environmental Control Citizen's Association, et al.
v.
_XIC (D. Minn. Mo. 4-72-109)
Plaintiff, a citizen's association, sought to enjoin further development and operation of "orthern States Power Company's Monticello and Prairie Island facilities on the ground that the Prairie Island construction permit and the Monticello provisional oFeratine license were issued without preparation of an environ-mental impact statenent.
On June 28, 1072, the District Court issued an opinion refusing to enjoin the construction or provis-ional operation, but holding that before full operating permits for these faciltiles could be granted, a full "FPA review was required.
The court retained jurisdiction over the matter to ensure that such a review was performed.
During the past eight years, the Commission has undertaken this environmental review, and both licensing proceedings are nearing completion.
Ehen the administrative proceedings are completed, we will move to dismiss this lawsuit.
20 Rosanna Kelly v.
Hendrie, et al. (D.D.C. Mo. 79-1550)
On June 14, 1979 plaintiff filed a lawsuit alleging that she has suffered age and sex discrimination in her efforts to be promoted and has been retaliated against as a result of initiating EE0 proceedings.
Plaintiff seeks retroactive promotion and an injunc-tien against discrimination.
NRC's ensuer, filed in September 1070 denies the substantive allegations of her comolaint.
The court has deferred consideration of this case pending resolution at the administrative level.
An E. E. O. C. hearine has been he]d, but the E.E.O.C. hearing examiner has not yet rendered an opinion.
Thot-Thompson v. Mc Ve a ch (D. Md. "o.
B-79-170:'
On August 16, 1979 plaintiff sued for damages alleged to be th e result of certain statements cafendant made.
The NRC position is that the defendant was acting within the sco2e of his employment with MRC when he made the statements.
Th e lawsuit was removed to federal district court on Ceptember 13, 19 79 and on Au gust 18, 1980, the government's motion to dismiss var. denied.
Se case is being handled through the Department of.iustice and is at the discovery stage.
21 Kertis v. United States (U.D. Pa. Co. 77-1259)
On "ovember 4, 1977 plaintiff sued the United States to recover damages for the death of her husband who contracted leukemia after baving been a worker in the Uestinghouse Cheswick facility engaced in repair of "avy submarine pumps.
'/estinghouse held a byproduct license perrnitting it to possess a small amount of radioactive caterial incident to maintenance of ravy reactor cenponents.
A similar lawsuit was dismissed in 1976 as plaintiIf was linited to workmen's compensation acainst Uestinguouse unoer State law.
The lawsuit is being handled by tne Department of Justice.
Gentry v. United States (?!. D. Ala.
"o. CA 79-L-5181 "E)
This is u Federal Tort Claims Ac t lawsuit brought on September 14, 19 79 by a former employee of Thiokol Corporation seeking money damages for exposure to radiation while working as a radiographer on government projects.
On !! arch 5,1980 the court disnissed all defendants except the United States.
A motion for sunmary j udg-ment based on statute of limitations grounds was filed Cetober 24, 1980 and is presently pending.
The lawsuit is being defended by the Department of Justice.
22 Broudy v. United States (C.D. Calif. ::o. 79-02626 LEW (GX))
Punnett v. Carter (E.D. Pa. ::o. 79-29)
Skinner v. United States (N.D. Calif. No. CA-79-1231-UAI)
Hinkie v. United States (E.D. Pa. No. 79-2340)
Runnels v. United States (D. Pawaii No. 79-0385)
These are a series of cases seeking money damages for injuries suffered as a result of the atomic weapons testirg progran.
Th e principal defendant in the suits is the United States and the cases are beine defended by the Department of Justice.
Ir Skinner, Hinkie and Punnels the governnent has motions to disniss pendinv.
Proudy was dismissed on January 3, 1980 on the ground that no action will lie under the Federal Tort Claims Act for an injury which arises out of activity incident to oilitary service.
The case is now on appeal.
In Punnett plaintiff's rotion for a prelininary injunction to compel the government to notify all soldiers formerly involved in the atomic testing progran of potential risks af genetic damage was denied on March 30, 1979; the denial was later upheld by the Third Circuit.
(lon-Door Corn,
v.
United States (Ct. Claims No. 100-70L) tion-Door sued the United States on March 20, 1979 for compensation for an alleged taking of its property by virtue of radon contamina-tion from the adjoining Vitro uranium mill tailing site.
The govern-ment answered denying a taking on June 11, 1979.
On Augus t 20, 1979 Judge Harkens stayed the proceeding at the request of the
23 Department of Justice which is handline the defense of this action to allow for settlement negotiations.
"egotiations are continuing.
Kepford v. URC (D.C. Cir.
"os.
78-1160 and 7P-2170)
In I;o. 78-1160 petitioner brougbt suit on Feburary 27, 1978, to sta" operation of the Three Mile Island Unit 2 facility, primarily because of claimed unacceptable heal t'a imoacts from radon-222 releases attributable to the mining and 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 court held further review in abeyance pending completion of administrative proceedings.
In Mo. 78-2170 petitioner brought suit on "ovember 13, 1978 to review a September 15, 1978 Commission order affirmine the Appeal Board's decision, ALAB-486, which authorized an operatine license for TMI-2, but called for further hearings on the probability of a 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.
Closed Cases United States v. McGovern (f.D. Pa. No. 80-0560: on appeal 3rd Cir. 00, 80-2182)
On June 2, 1980, the United States or behalf of MPC hrought a
subpoena enforcenent action against five Metropolitan Edison employees as part of the Commission's ongoine investigation of the tr ans fe r of information from !!et-Ed te the PRC on the first day of the Three Mile Island accident.
Following tuo eviden-tiary hearings Judge Ranbo granted the Commission 's notion to enforce the subpoenas on August 13, 1980.
An appeal to the Third Circuit was dismissed on October 8, 1980 after the Third Circuit and !!r. Justice Brennan refused to stay enforcement of the subpoenas.
United States v. Henry (S D. Ala. Misc. No. 80-0310-F)
On May 12, 1980 the United States on behalf of MRC brought a
subpoena enforcement action against a former employee at the Marble Pill nuclear power plant as part of the Cornission's investication into the procedures followed in testing concrete used to construct the power plant.
The case was uithdrawn on June 23, 1980 when the employee agrend to respond to the sub-poena.
2 Desrosiers v.
MRC (E.D.
T. in. Civ. Ac tion c. 1-80-36)
On February 12, 1980, Jin Desrosiers, individually and as Chair-man of the Chattanoogans for Safe Energy, brought suit to enjoin the NPC from issuing a low-power operating license fo r the Sequoyah nuclear power plant.
Cn April 3 the district court disrisced the lawsuit for lack of jurisdiction.
'.'e s t in g hou s e Flectric Corn.
v.
fiend rie (D.D.C., "o.
79-2060, on
- Tppeal, D.C. Cir. ':o. 79-2060)
Vance (D.D.C. ro. 79-2110, on Vestinchcuse Electric Corn,
- v. -
- appeal, D.C. Cir. Uc. 79-2070) i.'e s t in ch ou s e sued the MRC and the Departnent of State, alleging unreasonable delay in the processing of its licenses to export a reactor and components to the Philippines.
Cn August 30, Judve June Green denied the Westinghouse motion for injunction, and found that the I:RC delay was not unreasonable given the important health and safety considerations inplied by the application.
Westinghouse appealed to the D.C.
Circuit, but then cdthdrew its appeal.
Mississippi Power and Liebt Company, et al.
v.
"RC.
et al. (5th Cir No. 78-1565)
Suelear Encineering Companv v.
NRC, et al. ( 5th Cir. No. 78-1871)
Chem-Nuclear Svsters v.
TRC. et al. (5th Ciz. No. 78-2200)
A number of utilities sued the MRC on its February 9, 1978 license foe rule.
The utilities alleged that "RC exceeded its statutory
3 authority in setting the fees.
They sought a declaration in the interin, and a refund of all fees collected under the rule and its 1973 predecessor.
The Fifth Circuit affirmed the DRC schedule generally and as against each specific challenge on August 24, 1979.
601 F.2d 223.
The Suprene Court denied certiorari on February 19, 1980.
100 S.Ct. 1066.
A.P.
Martin-Tricona v.
Department of Justice, et al. (S.D.
Ill.
No. 78-4006)
On January 30, 1978, plaintiff sued the Justice Departnent, comron-weal th Fdison, and the PRC concerning the withholding under the FOIA of docurents pertaining to the Ouad Cities power station.
DFC is assertine Exemption 7 as grounds for withbolding the documents.
The court granted the motion to disniss.
Detroit Fdison Company v. NRC (6th Cir. No. 78-3187 and Fo.
73-3196)
On September 5, 1980, the Sixth Circuit af firmed the Commission 's denial of Detroit Edison's petition for rulemaking to exclude transmission lines and other off-site construction from regulation by the Commission.
The Cour t, following the reasonine in Public Service Company of New Hampshire v.
United States Fuclear Pecula-tory Connis sion, 582 F.2d 77 (1st Cir.) cert. denied, 430 U.S.
1046 (1978), found that because the Atomic EnerRy Act provides the Commission jurisdiction over transmission lines, licenses can be conditioned to nitigate the environmental impacts of the routes of
4 such lines.
The Court did not decide wberber MFPA provides the Commission an independent source of substantive jurisdiction.
On October 22, 1980 the court denied petitioners' motion for rehearing.
Ak r on. Canton & Younestown R.R.
v.
ICC (6th Cir. !!o. 79-3425),
petition for cert. neneing (S.Ct. :'o. 79-1833)
On August 3, 1978 the eastern railroads sougbt review of an ICC decision ordering the railroads to publish tariffs for the carriage of spent fuel.
On December 20, 1970 the Sixth Circuit affirmed the ICC, ruling that the railroads had a conmer carrier obligation to carry spent fuel.
The court also decided that the ICC should defer to I:RC and DOT for setting industry wide safety standards for the carriage of radioactive materials, but the ICC ray allow individual cariers to make more stringent rules.
611 F.2d 1162.
The railroads filed a petition for writ of certiorari on May 19, 1980 which is presently pending with the Supreme Court.
Radiation Technolocy v. NRC (D.N.J. t:o.70-753)
Plaintiff sought money damages under the Federal Tort Claims Act for costs flowing from the suspension of his materials license.
MRC's response alleged that counts 1 and 2 of the complaint were time-barred under the Tort Claims Act, and disputed the facts of the remaining claim.
Judge Stern granted "RC's motion to dismiss counts 1 and 2 en statute of linitations grounds; the renaining
5 clain was settled and subsequently dismissed by the court on February 25, 1980.
Ecolovy Ac tion of Oswego,
N.Y. v.
URC (D.C. Cir. No. 78-1355)
On March 12, 1980, the D.C.
Circuit affirned the Appeal Board's refusal to stay the Sterling nuclear power plant construction permit and refusal to enjoin Rochester Oas & Flectric Company from centracting for uranium to fuel the proposed plant pending Cenmission re-evaluation of the enviorumental impacts of the mining and milling of uranium.
The pe tition fc r revieu of the Appeal Board's decision was filed August 25, 1079.
The court acreed with our argunent that Ecology Action's assertion of ir:eparable injury from radon releases was contrary to the Con-gressional judgment contained in the Uranium Mill Tailine Radia-tion Control Act of 1978 that the risk from radon emissions can be limited to acceptable levels without stoppine uranium mining and milling.
City of Lancaster v. URC (D.D.C. No. 79-1368)
This lawsuit was brought May 21, 1979, seeking to enj oin use of the EPICOR-II demineralizer system and to enjoin discharge of accident cenerated unter from Three Mile Island Unit 2 into the Susquehanna River pending completion of an environmental impact statement and license amendment proceedings.
The case was settled
6 and dismissed with prejudice on February 29, 1c80, the Commission having re-iterated its intent to prepare a progrannatic environ-nental impact statenent and having agreed that no accident generated wastewater will he discharged into the Susquehanna River until completion of that statement or such other environ-mental review as is contemplated by the Concission's "ovember 21, 1970 policy statement, or until December 31, 1981, whichever is earlier.
Commonwealth of Kentucky v.
MRC (D.C. Cir. "o.
78-1369)
On April 24, 1978 the Commonwealth of Kentucky soupht review of ALAE-459, an Appeal Board decision which held that the Kentucky /
Indiana border was the 179 2 low water narP cn the northwestern or Indiana side of the Ohio River.
The issue arose when Kentucky claired that the discharge pipe of the Marble Hill facility would be in Fentucky territory, and consequently that the Section 401(a)(1) Federal Water Pollution Control Act permit necessary for construction of the plant should have been obtained from Kentucky rather than Indiana.
On April 18, 1980 the D.C.
Circuit affirmed the Appeal Board finding conclusiz: a !! arch 24, 1980 Supreme Court decision in the related case of Fentuckv v.
Indiana (S.Ct.
No. 81 Original) which fixed the border as of the 1792 low water mark.
7 Friends of the Earth v.
NRC, et al. (D.C. Calif., Div. "o.
C-80-0234-SU)
On January 30, 1980, Friends of the Earth sued the NRC and PG&E to compel the URC to prepare a supplemental environmental state-ment to discuss the consequences of Class 9 accidents at Diablo Canyon.
F0F argued that the TMI accident, various reports and recent analyses of accident probabilities such as the Lewis Report, GAO reports, etc. mean that the NRC can no longer cate-gorica11y exclude detailed discussions of Class O events as
" unforeseeable" for purposes of MEPA environmental analysis.
?:RC's notion to dismiss the lawsuit for lack of subject natter jurisdiction was granted September 26, 1080, on the ground that the licensine proceedinn, when the identical issue is pending for decision, was still ongoing.
Honicker v, Hendrie (M.D. Tenn. Civ. No. 78-3371-NA-CV; on appeal 6th Cir.
t'o.
79-1132, on petition for writ of certiorari S.Ct. No.79-710)
Plaintiff sued the MRC for injunctive relief, alleging that the NRC had permitted nuclear ower reactors and fuel cycle facilities to operate while underestimating the magnitude of adverse health consequences from the nuclear fuel cycle.
Plaintiff sought revo-cation of all licenses and disnantling of all fuel cycle facili-ties.
On February 19, 1990 the Supreme Court denied Ms. Monicker's petition for a writ of certiorari from the 6th Circuit decision which had affirmed the district court's dismissal of the case for
8 lack of subject matter jurisdiction.
See 465 F.
Supp. 414
(".D.
Tenn.), aff'd 605 F.2d 556 (6th Cir.), cert. denied 100 S.Ct.
10015 (1980).
Virginia Sunshine Alliance v.
URC, et al.
(D.D.C.
"o. 70-1989, on
- appeal, D.C.
Cir. "o. 79-2060) on July 31, 1979, plaintiff sued to block the shipnent of spent fuel from foreign research reacters through Portsrouth, Virginia,
'oased on a claimed threat of sabotace, and alleging that the route approval was given contrary to " EPA and I'RC regulations.
On August 3, District Court Judge Penn denied plaintiff's request to preliminarily enjoin spent fuel shipnents through I'orfolk,
Virginia, finding that the Cormission's new safeguards rule pro-vided adequate protection against sabotage threats anc that the Commission had taken a "hard look" at the sabotage issue in compliance with NEPA.
An appeal from the denial of the injunc-tion was voluntarily dismissed on October 14, 1980, and the district court case too was dropped on October 18, 1980 Life of the Land v. Adams (D. Fauaii "o.
79-0249)
Plaintiffs challenced the transport of two shipments of spent fuel fron Japan through Hawaiian unters and the port of IIonolulu, seek-ing preparation of an environmental impact statement and compliance with the Ports and L'aterways Safety Act.
The application for inj unction on the first of these shipments was denied on June 7,
9 1979, and upheld by the Ninth Circuit on June 3, 1979.
The governor closed the port to both shipeents.
One was permitted to refuel at Pearl Harbor on an energency basis; the other refueled in non-Hawaiian wa ters.
Because no nore shipments were scheduled, the Justice Department filed a
.otion to disniss on vrounds the case was moot.
On December 14, lo79, a voluntary dismissal was approved by the court.
Southern California Edison v.
FRC (9th Cir. "o.
70-7529)
On October 15, 1979, Southern California Fdison cetitioned the Minth Circuit to review the Appeal Board's June 15, 1979 decision, ALAB-550, which denied the company's motion to cuash a subpoena the Licensing Board had issued in connection with antitrust pro-ceedings on the Stanislaus nuclear power plant.
The case was settled administrative 1y and the lawsuit was voluntarily dismissed on May 14, 1980.
Duquesne Light Company v. MRC (3d Cir.Nos. 30-1295 and 80-1307)
Pennsylvania Power Company v. MRC (3d Cir. Pos. 80-1296 and 30-1310)
These petitions for review were filed en February 29, 1980 to review the Appeal Board's Davis Besse antitrust decision, ALAB-560, which had affirmed the Licensing Board ruling that construction and operation of the five nuclear power plants involved in this case would create and maintain a situation inconsistent with the antitrust laws.
Specific license conditions were imoosed to correct
10 that situation.
The utilities voluntarily withdrew their appeal and on October 8, 1980, the case was dismissed.
Hunt v.
MRC (10th Cir. No. 79-1647)
On I:ovember 23, 1979 the l'. S. Court of Appeals for the Tenth Circuit affirred a lower court decision that the Sunshine Act does not apply to hearings conducted by Atcmic Safety and Licensinc Boards.
The court's opinion follows the reasoning of the district court quite closely and resolves the question of whether the Sun-shine Act applies to subdivisions of the Ccenission or to similar subdivisions of other acencies.
Township of Lower Alloways Creek v.
"RC, (D.N.J.
No. 1129)
On December 10, 1970 Judge Brotman of the federal district court in New Jersey granted our motion to disniss a complaint challenging the proposed expansio-of the spent fuel pools at Salem Units 1 and 2.
He found that plaintiffs had not exhausted their administrative remedies since the utility's request for an operatine license amendment to expand the Salem Unit 1 spent fuel pool was before a Licensing Board and the Salen Unit 2 expansion request was being considered in the review of the utility's operating license appli-cation.
481 F.
Supp. 443 (D.M.J. 1979).
11 County of Ocean v. MRC ( D. :'. J. No. 79-1800)
On June 11, 1979 a cceplaint was filed in federal district court challenging the expansion of the spent fuel pools at Oyster Creek and Forked River.
On December 20, 1979 Judge Brotman dismissed the complaint with respect to Forked River.
Since construction of the plant had been halted and no application had been made to expand the spent fuci pool, there uas no case or controversy.
As to Oyster Creek plaintiffs failed to exhaust available 10 CFR 2.206 administrative remedies.