ML20002C339
| ML20002C339 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 12/05/1980 |
| From: | Fitzgerald J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| Shared Package | |
| ML20002C338 | List: |
| References | |
| NUDOCS 8101100082 | |
| Download: ML20002C339 (35) | |
Text
i UNITED STATES NUCLEAR HEGULATORY COMMISSION
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E WASHINGTON, D, C. 20555 December 5, 1980
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O NOTE TO:
The Files The attached Memorandum on Pending Litigation was hand-delivered to the Transition Team by Stephen E11perin, MRC Solicitor, this date.
VM James A. Fitzgerald Assistant General Counsel c c':
W. Dircks T. Combs e
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0110 0 DB 81
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k MDf0RdNDUM ON PE" DING LITIGATION There are forty-three cases involving the Nuclear Regulat,ory Com=ission now pending in court of which ten cases are of particularly significant interest.
A full listing of the pend-ing cases as well as cases concluded in the last year is attached to this memorandum.
The most signifciant cases are discussed below:
1.
Sho11y v. NRC ( D. C. Cir., No s. 80-1691, 80-1783,and 80-1784).
On November 19 the D.C. Circuit declared illegal the Commission's refusal to hold hearings in connection with its approval of vent-ing the Three Mile Island containment of krypton early last summer.
involves The D.C. Circuit ~ held that even where a license amendment no significant hazards consideration any interested person who of the Atomic requests a hearing is entitled by Section 189(a)
Energy Acc to a hearing before the amendment becomes effective.
The court also held that the TtfI-2 accident had essentially f
negated any authority in the TMI-2 operating license so that any action not authorized by the Commission's February 11 order i
establishing post-accident conditions for TMI-2 is a license 1
amendment subject to Section 189(a) hearing requirements.
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The D.C. Circuit's decision on the no significant hazards issue threatens immediate and severe impacts on the. nuclear industry.
Some 20 nuclear power plants, primarily those engaged in fuel reloading, require license amendments before they can either 1
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resume operation or resume operation at full power.
The court's decision may provide any interested person the leverage to keep the plant down simply by requesting a hearing.
So too the court's holding that the TMI-2 license was negated by the acci-dent has the potential of exacerbating the delay associated with the Tt!I-2 cleanup by requiring more frequent license amendment hearings before specific cleanup actions can be taken.
This latter problem may in part be alleviated by the Commission's powers to take immediate action where public health.and safety warrant.
The Commission is considering pursuing the' Sho11y ca-se further
'either through Supreme Court review or corrective legislation.
Additionally, the Commission is considering filing a motion for stay of mandate with the D.C. Circuit in order to obtain interim relief pending a decision on whether to seek Supreme Court review.
2.
Union of Concerned Scientists v. NRC (D.C. Cir. No. 80-1962)
This case challenges the Commission's Ju.e 20, 1980 policy state-n ment that gives gu.idance to its adjudicatory boards for handling the additional requirements flowing from the Commission's TMI action plan.
The policy statement has been challenged on the ground that it unlawfully discriminates.between parties to !!RC adjudications by permitting applicants for operating licenses to challenge in each adju'dication the necessity for the additional licensing requirements contained in ITUREG-0604, while prohibiting,
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3 intervenors from challenging their sufficiency.
An adverse court decision could seriously complicate the Commission's power to impose its action plan requirements and could lead to reopening of any licensing case that had excluded THI-related issues based on_the policy statement.
3 '.
Citizens Action-for Safe Energy v. NRC (D.C. Cir. Uo. 80-1566)
This lawsuit, filed May 27, 1980, challenges the Appeal Board's decision in ALAB-587 which deferred for the present further con-sideration of Class 9 accidents at Black Fox.
Petitioners contend that.NEPA requires the Commission to prepare a supplemental environ-mental impact statement to consider the consequences of Class 9
. accidents.
An adverse decision by the court could require supple-mental NEPA impact statements to be prepared examining the proba-bilities and environmental consequences of serious nuclear accidents.
'Potentially 15 power plants would be affected if a court interprets the Commission's UEFA ob1'igations along the lines suggested by CEQ.
Additionally, there is a possibility that the court might j
require dererral of licensing or further construction in.each case until the supplemental EIS is completed.
4.
Natural Resources Defense Council v. NRC (D.C. Cir. No. 80-1477)
This lawsuit challenges the Commission's approval of export B
licenses to the Westinghouse Electric Corporation for the export I
of a nuclear reactor and certain components to the Philippines.
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The lawsuit challenges the Commission's position that it will only consider those health, safety, and environmental imp' acts that affect the territory of the United States or the global co= mons, and not impacts affecting a foreign nation.
k'e do not expect an adverse decision; however, an adverse decision could bring to a halt the export of U.S. nuclear reactors and their components.
5.
Natural Resources Defense Council v. NRC (D.C. Cir. No. 80-1328)
[
This lawsuit challenges the Commiss. ion's rule excluding from the Part 21 requirement to report defects in safety related components, items that are available 'in general commerce and which have no unique design requirements imposed for nuclear application.
The Commission's clarifying rule was adopted without notice and comment 9
and may be overturned on procedural grounds.
Should the court overturn the Commission's rule on the merits -- that the Commission
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has imposed too limited a scope on its reporting requirements --
then such'a decision could have a serious impact on the ability of nuclear power plant-operators to obtain necessary, parts for construction or operation of their power plants.
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6.
People of the State of Illinois v. NRC (D.C. Cir. No. 80-1163) l This lawsuit challenges the Commission's refusal to conduct an 1
j adjudicatory hearing with regard to NIPSCO's plans for installing l
short pilings for the Bailly nuclear facility.
The case involves l
5 the fundamental question of the standard by which the Comr.ission decides whether a construction change or a matter left open for later resolution rises to the level of an amendment.
A court holding that a construction permit amendment was required in the circumstances of this case would seriously complicate the con-struction of nuclear power plants.
When coupled with the D.C.
Circuit's Sholly decision, an expansive reading here would mean that even insignificant construction permit amendments could not be accomp1'ished dithout a prior hearing should an interested person request one.
The potential' for constant interruption in power plant construction could be endless.
7.
Natural Resources Defense Council v. URC (D.C. Cir. Uos.
80-1863 and 80-1864)
These lawsuits challenge the Commission's decision to hold same-thing less than an adjudicatory hearing.with respect to the on-going license amendment proceeding for the NFS Erwin facility.
Since petitioners have not sought to enjoin operation of NFS Erwin, the case should pose no threat to. the Navy's continued supply of fuel for its nuclear-powered war ships.
However, the I
lawsuits dc raise the significant issue whether the Commission is entitled to hold something less than an adjudicatory hearing when a license proceeding is focused on the operation of a facility essential to national defense.
The cases also involve the pro-cedural powers of the Commission to apply by immediate effective 1
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1 rule in on-going proceedings, restricitons on adjudicatory rights.
Additionally, the' lawsuits could potentially raise the qu'estion uhether the Commission is entitled to withhold from a participant in the licensing proceeding classified information which the Con-mission has relied upon in reaching its decision.
An adverse ruling from the court could deprive the Commission of flexibility it thinks is important uhen establishing the hearing format for cases that bear upon national defense matters.
8.
Kerr-McGee Nuclear Coro. v. NRC (10th Cir. No. 80-2043);
United Nuclear Coro
- v. NRC (10th Cir. No. 80-2229)
These cases challenge the Commissi n's licensing requirements for uranium mills.
The complaint alleges in general terms that the Commission's regulations imposed a substantial and unreasonable b'urden upon uranium processing operations.
Since petitioners have not yet filed their brief their complaint with the rule 0
remains general.
An adverse court decision could potentially l
have a significant impact on the Commission's long-term plans for a
uranium mill tailings management.
0 9.
Potomac Alliance v. NRC (D.C. Cir. No. 80-1862)
This case challenges an Appeal Board decision granting VEPCO an l
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operating' license amendment to expand the capacity of its North Anna Unit 1 spent fuel pool.
Petitioner claims that the Comuis-sion illegally failed to consider the environmental effects of L
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7 storing spant fuel at the site after the plant's operating license has expiried.
An cdverse court decision could mean that the Commis-sion weald be obiiged, before approving any spent fuel pool expan-sion cr re-racking, to conduct.for each case an adjudicatory hear'.ng on its confidence that nuclear waste will be disposed of safely, and when that is expected to occur.
Twelve spent fuel peal expansion requests are presently pending and some 9 other ydwe.r plants are projected to. lose hall core reserve by 1985.
10.
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) s These consolidated cases challenge three related versions of the Commission's uranium fuel cycle rule.
An adverse court decision could require the Commission in all licensing actions to discuss the environmental impact of the back end of the fuel cycle rather l
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l than handling the matter by generic rule.
It might also lead to
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requests for further hearings on completed licensing actions which had been issu?d based upon the rules'which have been in effect.
This would cover all plants whose environmental report was submitted since mid-1974.
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Pending Cases 1
Sho11y v. NRC (D.C. Cir., Nos. 80-1691, 80-1783 and 80-1784)
This lawsuit sought an injunction against the venting of Krypton-85 from the TMI-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. URC (3d Cir. Nos. 80-1094 and 80-1995), 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.
Suscuehanna Valley Alliance v. Three Mile Island, 485 F. Supp. 81 (M.D. Pa.), rev'd in cart, 619 F.2d 231 (3d Cir.), Cert. cet.
Pehding sub nom. General Public Utilities Corn. v. Susquehanna Valley Alliance (S.Ct. No.80-382) (TMI) l The Susquehanna Valley Alliance brought this lawsuit on May 25, 1979, alleging that the Commission,had approved the construction and operation of EPICOR-II, a demineralizing and filtration l
l system designed to decontaminate intermediate-level radioactive i
waste water resulting from the TMI accident, and intended to allow.
discharge of the treated water into the Susquehanna River in vio-l lation of the Atomic 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.
l NRC (D.D.C., No. 79-1368)) the Commission issued a statement pro-
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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 Thir6 Circuit reversed the dismissal of SVA's claims ~under NEPA, the Clean Uater Act and the Constitution, but affirmed the dismisst.1 cf the Atomic Energy Act claim.
A petition for writ of certf orari, filed by the utility, is pending.
Union of Concerned Scientists v. NRC (D.C. Cir. No. 80-1962)
On August 14, 1980, the Union of Concerned Scientists and five other organizations sought review in the D.C. Circuit of the Com-l 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 MRC adjudications by permitting applicants 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.
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Citizens Action for Safe Energv v. NRC (D.C. Cir. No. 80-1566)
This lawsuit, filed May 27, 1980, challenges the Appeal Board's further decision in ALAB-587 which deferred for the present
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Petitioners consideration of Class 9 accidents at Black Fox.
contend that NEPA requires the Coc: mission to prepare a supple-mental environmental impact statement to consider the conse-quences of Class 9 accidents.
Briefing is expected to be
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completed by December, 1980.
80-1477)
Natural Resources Defense Council v. NRC (D.C. Cir. No.
TPhilippines)
On May 6, 1980, a number 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 Republic of the Philippines met all the applicable licensing
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criteria in the Atomic Energy Act of 1954, as amended by the Nuclear Non-Proliferation Act of 1978, and directed issuance of In the export licenses to the Westinghouse Electric Corporation.
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 reaetors that affect the territory of the The case was argued before United States or the global cou: mons.
the~D.C. Circuit in September, 1980, and is awaiting decision.
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Watural Resources Defense Council.v. NRC (D.C. Cir. Co. 80-1328)
TPart 21)
On March 24,1980, 'the Natural Resources Defense Council sought review of a January 23, 1980 letter from the Chairman of the that the Com-Nuclear Regulatory Commission denying its request 21.
The Com-mission rescind certain amendments to 10 CFR Part mission had adopted the amendments on October 19, 1978, without notice and cocment, through the issuance of an immediately effec-tive rule clarifying that items that are available in general commerce and which 'have no unique design requirements imposed for nuclear application, are not within the scope of the Commis-sion's rule pertaining to the reporting of defects in safety-Briefing was completed in October, 1980.
related components.
80-1163)
People of the State of Illinois _v. ERC (D.C. Cir. No.
(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 The Commission's decision noted that pilings issues had hearing.
appropriately been left for later resolution, and that the Advisory Committee on Reactor Safeguards had advised that the use of shorter
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5 pilings was not a significant design change from the standpoint of engineering.
Briefing was completed in October, 1980.
80-1863 Natural Resources Defense Council v. NRC (D.C. Cir. Nos.
Hnd 80-1864) (NFS Erwin)
These lawsuits, filed July 28, 1980, seek review of two Commis-sion orders involving the NFS Erwin facility.
In No. 80-1863, NRDC challenges an interlocutory Commission order that granted NRDC a hearing on'a proposed license acendment for the NFS Erwin In facility which was less adversary than petitioners sought.
No. 80-1864 MRDC challenges an immediately effective rule issued June 26, 1980 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 On the ongoing license amendment proceeding for NFS Erwin.
September 29, 1980 the D.C. Circuit denied the Cocmission's i
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. Hendrie (D.D.C., No.
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 operating license The basis for application for the Diablo Canyon Nuclear Plant.
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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 staff employee of the Atomic Energy Commis-sion.
The parties have filed dispositive motions and the case is awaiting oral argument.
Prairie Alliance v. URC (C.D. Ill. Uo. 80-2095 General Electric *Co. v. NRC (D.D.C.'Uo. 80-2659)
On May 7,1980, the Prairie Alliance sued the URC under the Freedom of Information Act to compel disclosure of the General Electric Nuclear Reactor Study known as the Reed Report for its principal author.
While that lawsuit was pending, on Cetober 9,1980, the 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 GE's case be transferred to federal district in Illinois where the Prairie Alliance case had been filed, court and enjoined the Commission from releasing the Reed Report pending disposition of the case by that court.
A decision is expected in the first quarter of 1981.
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Simmons v. Arkansas Power and Light Comoany and NRC (E.D. Ark.,
UR-80-C-263, on acoeal, 8th Cir., No. 80-1633) l On May 30, 1980, plaintiffs Sim=ons, 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.
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A hearing on the, motion for preliminary injunction was held on June 17-18.
At the conclusion of plaintiffs' testimony 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 matter 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 l
the Commission's final rule on radiological emergency planning issued August 11, 1980.
The utility indi-cated that it would also ask for Commission re-consideration of i
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the rule and would defer pressing the lawsuit pending Commission
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disposition of the petition for reconsideration.
Kerr-McGee Nuclear Coro
- v. NRC (10th Cir. No. 80-2043)
On October 3, 1980, Kerr-McGee petitioned the Tenth Circuit to review the Commission's Uranium Mill Licensing Requirements which were issued that day.
45 Fed. Reg. 65521-38.
The compalint con-tends that the Commission's regulations imposed a substantial and i
unreasonable burden upon Kerr-McGee's uranium-processing opera-tions.
Pierce Utilities Authority v. NRC (D.C. Cir. No. 80-1099)
Ft.
On January 21, 1980, the Ft. Pierce Utilities Authority filed a lawsuit challenging the Commission's decision not to initiate at i
this time a Section 105a antitrust proceeding 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 Florida Power Company to divide the wholesale power The Commission reasoned that Section 105a was market in Florida.
designed to supplement court ordered relief and that until the federal district court issued its decision it was unclear what supplementary relief from the Commission might be necessary.
Briefing was completed in July, 1980.
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80-1862)
Potomac A111a'nce v. N'RC (D.C. Cir,. No.
the Potomac Alliance sought review of the On August 28, 1980, Appeal Board's decision granting VEPCO an operating license 1 spent amendment to expand the capacity of its North Anna Unit 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 expired.
The Commission.'s cotion to dismiss the petition as unticely was denied on September 29, 1980.
80-2122)
Potomac Alliance v. NRC (D.C. Cir. No.
the Potomac Alliance filed this lawsui On September 18, 1980 seeking to enjoin the repair of the Surry Nuclear Power Station Unit 1 steam generators pending a more complete environmental On October 3, 1980, the D.C. C'ircuit denied imp'act statement.
Repairs on the steam petitioner's request for an injunction.
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 Judge Penn ruled request for a subscription to Media Monitor.
in existence that the FOIA did not encompass documents not yet and that the Commission had not withheld any copies of the
10 publication The D.C. Circuit heard argument in the case.on December 12, 1980.
Virginia Sunshine Alliance v. NRC (D.D.C. N'. 80-2099) o On August 18, 1980, three groups brought suit to compel the Commission to release agency records concerning the details about routes for spent fuel shipments.
The administrative request had pre-dated enactment on June 30, 1980 of a new section 147 to the Atomic Energy Act.
Consequently, the request 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 withbolding of Laformation cover-ing communication dead zones, safe havens, and law enforcement response capabilities.
U.S. Nuclear Regulatory Commi'ssion v.. Radiation Technology, Inc.
(D.N.J. No.80-218 7) l t
On July 15, 1980, the Commission sued Radiation Technology, Inc.
to collect civil penalties imposed by the NRC under Section 234 l
of the Atomic Energy Act, for a series of infractions and I
deficiencies at defendant's Rockaway, New Jersey facility.
A motion for summary judgment is in preparation.
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Frisby, Kaiser and Clary v. IRS, NRC and MSPB (D.C. Cir. No.
80-1442) 1 This lawsuit was brought on April 18, 1980 by employees of two l
federal agencies who had been dismissed from government service.
The Merit Systems Protection Board re-opened the cases in light of the Board's decision in Wells v. Harris (MSPB No. RR-80-3) for hearing officers to determine whether dismissal would have t
been proper under the standards' for adverse actions of 5 U.S.C.
Chapter 75.rather than under the Civil Service Reform Act of 1978 where an OPM-approved performance system had not yet been properly implemented.
On re-consideration the hearing officer upheld the removal of the NRC employee.
Court proceedings 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. No.
)
t 458-80)
On August 27, 1980 IVRI sued the United States claiming that the f
NRC illegally breached' plaintiff's contract to provide stenographic
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reporting services.
The Commission will counterclaim for excess reprocurement costs.
Its position is that the reporting company i
failed to provide adequate reporting services.
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12 Ill.
People of che. State of Illinois v. General Electric.(U.D.
-l 80-1962)
No. 79-C-1427, appeal pending 8th Cir. No.
the State of Illinois sued General Electric, On April 11, 1979, the Commission, and the Department of Energy over the G.E. Morris l
spent fuel storage facility.
Illinois claimed that its Radio-
' active Waste Act violates the Illinois Constitution, is pre-and hence voids its perpetual empted by the Atomic Energy Act, care contract with GE, and'that the Department of Energy violated NEPA in not preparing an EIS to accompany proposed legislation on J
On the use of G.E. Morris as an away from reactor storage site.
December' 18, 1979, Judge Will dismissed all but the EIS. claim involving the Department of Energy; that latter claim was dis-a missed as moot on May 8,1980 based on DOE's expressed intention to prepare a site-specific EIS before acquistion of Morris or any On other facility once congressional authorization was obtained.
June 27, 1980 Illinois appealed.
Briefing was completed in l
october, 1980.
Woliver v. NRC (D.D.C. No. 80-2627)
On October 15, 1980 this Freedom of Information Act lawsuit was filed seeking a copy of a 1969 Sargent & Lundy Engineers' report to the Cincinnati Gas & Electric Company "An Economic Evaluation The Commission had denied the request for the of Alternatives".
report under Exemption 4 as proprietary.
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13 Common Caus e v. NRC (D. D. C. No. 80-2347)
On September 15, 1980, Cocmon Cause filed a Sunshine Act lawsuit j
against the NRC claiming that the Commission's July 18, 1980 Common budget meeting was improperly closed to the public.
Cause seeks a copy of the transcript of the meeting.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 !!ile Island Litiration (M.D. Pa. No. 79-0432)
This is a consolidated complaint seeking money damages for personal injuries, property losses, and business losses alleged to have resulted from the Three Mile Island accident.
On July'10, 1980, Judge Rambo ruled that the federal district court properly
'had jurisdiction over the TMI litigation despite the fact that the Commission had determined that the accident did not consti-tute an extraordinary nuclear occurrence because the lawsuit in any event arises under federal law; second, that the lawsuit could-I properly proceed as a class action as to the " economic harm" l
classes; and third, that insofar as personal injury clains were involved that class action treatrent was proper only as to the i
alleged need for medical monitoring services.
Judge Rambo specifi-cally decided that claims of emotional distress flowing from the i
TMI accident were too diverse and personal to be adjudicated by
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l the vehicle of a class action.
The Commission is participating as a friend of the court in this lawsuit.
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e 14 Friends of the Earth v. NRC (9th Cir. No. 79-7311)
This lawsuit sought review of the Commission's June 22,.1979 decision to re-start Rancho Seco after it had completed various TMI-related modifications.
On July 5,1979, the Ninth Circuit denied emergency relief, and on September 10, 1980, entered an order deferring action on the merits until completion of the ongoing Licensing Board hearing.
State of New York and People od the State of Illinois v. NPC
,S.D.N.Y. 79 Civ. 4568)
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This lawsuit follows similar suits lur the State of New York which sought to stop the air shipment of plutonium pending preparation of an environmental impact statement.
Those earlier l
requests for injunctive relief were rejected.
See State of New Y'ork v. NRC, 550 F.2d 745 (2d Cir. 1977).
The current lawsuit l
challenges the adequacy of the NRC's environmental impact state-ment on the transportation of radioactive material (NUREG-0170) and is still in the early stages.
Upoer Skazit Indian Tribe. Suak-Suiattle Indian Tribe and Swinomish Tribal Community v. NRC (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 petition in abeyance pending the outcome of the administrative proceedings.
The case should e
15 soon.be dismissed as moot since the utility no longer plans to i
t build the pla'nt at the Skagit site.
Peshlakai v. Duncan (D.D.C. No. 78-2416)
This lawsuit was brought December 22, 1978 against a. number of federal agencies, primarily the Department of the Interior but also including NRC, claimed that government actions affecting i
the mining and milling of uranium violated NEPA because national, regional, and individual environmental impact ststements had not been prepared on a multitudinous set of actions.
The case is essentially the nuclear analogue of the Klecoe case which dealt with similar claims regarding coal exploration.
Judge Harold H.
Greene of the federal district court saw it as such in a Septem-ber 5, 1979 opinion which denied plaintiff's motion for a prelim-inary injunction to halt work at Mobil's pilot in situ plant j
project at Crown Point, New Mexico.
Thereafter, on August 29, 1980, Judge Greene denied plaintiff's motion for partial summary t
judgment ruling that the regional EIS issue presented disputed nacerial issues of fact and hence was inappropriate for summary disposition.
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John Abbotts v. NRC (D.D.C. No.77-624) c On April 11, 1977, John Abbotts, the Public Interest Research j
4 Group, and the Natural Resources Defense Council, brought a Freedom of Information Act suit challenging the NRC decision to O
l withhold certain safeguard documents.
The df.spute has since been 1l
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level" testing the proper classification of " baseline threat f
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The court must now decide whether to review the information.
documents in camera and whether there is a valid exemption 1 J
claim by NRC.
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77-1905)
Coalition for the Environment v. MRC, (D.C. Cir. No.
t (Callaway) 73-2266) (Shoreham)
Lloyd Harbor Study Grong v. NRC (D.C. Cir. No.
73-1776 and 73-1867)
_ Nelson Aeschiiman v.'NRC (D.C. Cir. Nos.
(Midland) 74-1385)
Natural Resources Defense Council v. NRC (D.C. Cir. No.
(Vermonc Yankee) f These lawsuits challenge on uranium fuel cycle grounds
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the construction permits for Callaway, Shoreham, an S-3")
l Briefing in these cases and the Vermont Yankee operating license.
t is being held in abeyance pending the D.C. Circuit's decision in d argument in the fuel cycle rulemaking cases where the court hear See Natural Resources Defense Council v. NRC September, 1980.
and State of New 74-1586, 77-1448 and 79-2131)
(D.C. Cir. Nos.
79-2110).
York v. NRC (D.C. Cir. No.
74-1586, Natural Resources Defense Council v. NRC (D.C. Cir. Nos.
~~-
77-1448 and 79-2131) and 79-2110)
State of New York v. NRC (D.C. Cir. No.
These consolidated cases chal.lenge three related versions of l
The rule speaks to the Commission's uranium fuel cycle rule.
l that the environmental-impact of operating a nuc ear the fact fuel power reactor necessarily includes the impacts of off-site
e 17 cycle activities 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 f
The D.C. Circuit'r cor. sideration of these water power reactors.
cases follows the Supreme Court's maand ia Vermont Yankee nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978).
Cral argument was heard in September, 1980. 'The D.C. Circuit has held in abeyance a series of cases involving application of the S-3 rule to individual facilties pending its decision in the rulemaking cases.
See Lloyd Harbor Study Group v. NRC (D.C. Cir. Uo. 73-2266) (Shoreham);
Nelson Aeschliman v. NRC (D.C. Cir. No. 73-1776 and 73-1867) (Mid-land); Natural Resources Defense Council _ v. FRC (D.C. Cir. No.
74-1385) (Vermont Yankee); Coalition for the Environment v. MRC (D.C. Cir. No. 77-1905) ' (Callaway) ~.
United States v. New York City (S.D.N.Y. No. 76 Civ. 273)
On January 15, 1976, the NRC, DOE, and DOT sought a judgment declaring a New York City Health 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 materials.
The government's request for a preliminary injunction against enforcement of the Health Code provision was denied on January 30, 1976 in view of the absence of DOT regulations under the Harardous Materials Trans-portation Act prohibiting such local ordinances.
On Aprit 4, An.
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18 1978, DOT ru' led that the New York City ordinance was not incon-sistent with DOT's then existing statutory scheme and regulatory policy but that a rulemaking wouid be held to consider what restrictions should be placed on local regulation of the routing of nuclear materials.
The rulemaking has not yet been completed and the lawsuit is still pending.
State of New Y' rk v. NRC (2d Cir. No. 75-4278) o Natural Resources Defense Council v. NRC (2d Cir. Co. 75-4276)
Allied General Nuclear Services v. NRDC (S.Ct. No.76-653)
Commonwealth Edison Co. v. NRDC (S.Ct. No.76-762)
Baltimore Gas & Electric Co. v. NRDC (S.Ct. No.76-774)
Uestinghouse Electric Corn. v. URDC (S.Ct. No.76-769)
These GESMO lawsuits have been pending before the Second Circuit ev'er since the Supreme Court on January 16, 1978, vacated the court i
of appeals decision in Natural Resources Defense Council 'v.
- URC, 539 F.2d 824 (1976), and remanded the case to the Second Circuit "to consider the question of mootness".
The court of appeals has h
not yet acted on our request to dismiss the cases as moot.
West Michigan 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 GESMO proceeding.
The utility has not pressed its application nor prepared the environmental
19
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report preliminary to pressing its application.
Settlement attempts to have the lawsuit voluntarily dismissed without prejudice to bringing a new lawsuit should the utility activate its application have thus far been unsuc~cessful, and the case remains inactive on the court's docket.
r Minnesota Environmental Control Citizen's Association, et al. v.
AEC (D. Minn. No. 4-72-109)
Plaintiff, a citizen'.s association, sought to enjoin further development and operation of Northern States Power Company's Monticello and Prairie Island facilities on the ground that the i
Prairie Island construction permit and the Monticello provisional operating license were issued without preparation of an environ-
~
mental impact statement.
On June 28, 1972, the District Court issued an opinion refusing to enjoin the construction or provis-
' onal operation, but holding that before full operating permits i
for these faciltiies could be granted, a full NEPA 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.
When the administrative proceedings are completed, we will move to dismiss this lawsuit.
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Rosanna Kelly v. Hendrie, et al. (D.D.C..No. 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-tion against discrimination.
NRC's answer, filed in September 1979 denies the substantive allegations of her complaint.
The court has deferred consideration of this case pending resolution at the administrative level.
An E.E.O.C. hearing has been held, but the E.E.O.C. hearing examiner has not yet rendered an opinion.
Thot-Thompson v. McVeagh (D. Md. No. B-79-1703)
On August 16, 1979 plaintiff sued for damages alleged to be the result of certain statements defendant made.
The NRC pocition is that the defendant was acting within the scope of his employment l
with NRC when he made the statements.
The lawsuit was removed to federal district court on September 13, 1979 and on August 18, The case 1980, the government's motion to dismiss was denied.
the is being handled through the Department of Justice and is at discovery stage.
e
i 21 Kertis v. United States (W.D. Pa. No. 77-1259)
On November 4, 1977 plaintiff sued the United States to recover damages for the death of her husband who contracted leukemia after having been a worker in the Westinghouse Cheswick facility engaged in repair of Navy submarine pumps.
Westinghouse held a byproduct license permitting it to 'po'siess a 'small' amount of
~
radioactive caterial incident to maintenance of Navy reactor A similar lawsuit was dismissed in 1976 as plaintiff ccmponents.
was limited to workmen's compensation Against Westinguouse under The lawsuit is being handled by the Department of State law.
Justice.
Gentrv v. U' ited States (N.D. Ala. No. CA 79-L-5181-NE) n This is a Federal Tort Claims Act lawsuit brought on September 14, 1979 by a former employee of.Thiokol Corporation seeking money damages for exposure to radiation while working as a radiographer l
On March 5, 1980 the court dismissed all l
on government projects.
1 defendants except the United States.
A motion for summary judg-ment based on statute of limitations grounds was filed October 24, 1
l 1980 and is presently pending.
The lawsuit is being defended by p
I the Department of Justice.
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Broudy v. United States (C.D. Calif. No. 79-02626 LEW (GX))
4 Punne tt v. Car ter ( E. D. Pa. No. 79 - 29 )
Skinner v. United State's (N.D. Calif. No. CA-79-1231-UAI)
Hinkie v. United States (E.D. Pa. No. 79-2340)
Runnels v. United States (D. Hawaii No. 79-0385)
These are a series of cases seeking ~ money damages for injuries The suffered as a result of the atomic weapons testing program.
principal defendant in the suits is the United States and the In cases are being deferded by the Department of Justice.
Skinner, Hinkie and Runnels the government has motions to dismiss pending.
Broudy was dismissed on January 3, 1980 on the ground for an that no action will lie under the Federal Tort Claims Act injury which arises out of activity incident to military service.
The case is now on appeal.
In Punnett plaintiff's motion for a to notify all l
preliminary injunction to compel the government soldiers formerly involved in the atomic testing program of potential risks of genetic damage was denied on March 30, 1979; the denial was later upheld by the Third Circuit.
l Won-Door Coro. v. United States (Ct. Claims No. 109-79L) 1 Won-Door sued the United States on March 20, 1979 for compensation for an alleged taking of its property by virtue of radon contamina-l tion from the adjoining Vitro uranium mill tailing site.
The govern-
~
ment answered denying a taking on June 11, 1979.
On August 20, i
l 1979 Judge Harkens stayed the proceeding at the request of the l
l l
23 Deparecent of-Justice which is handling the defense of this action to allow for, settlement negotiations.
Negotiations are contianing.
Kepford v. NRC (D.C. Cir. Nos. 78-1160 and 78-2170)
In No. 78-1160 petitioner brought suit on Feburary 27, 1978, to I
stay operation of the Three Mile Is1'and Unit 2 facility, primarily because of claimed unacceptable health impacts from raden-222 releases attributable to the mining and milling of urani'm to u
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 No. 78-2170 petitioner brought suit on November 13, 1978 to review a September 15, 1978 Cassission order affirming the Appeal Board's decision, ALAB-486, which authorized an operating 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.
e M
a Closed Cases United States v. McGovern (M.D. Pa. No. 80-0560; on appeal 3rd Cir. t!o. 80-2182)
On June 2,1980, the United States on behalf of NRC brought a subpoena enforcement action against five Metropo'11 tan Edison employees as part of the Commission's ongoing investigation of the transfer of information from Met-Ed to the URC on the first day of the Three Mile Island accident.
Following two eviden-
~
tiary hearings Judge Rambo granted the Com=ission's motion 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 Mr. Justice.Brennan refused to stay enforcement of the subpoenas.
United States v. Henry (S.D. Ala. Nisc. No. 80-0319-H)
On May 12,1980 the United States on behalf of NRC brought a subpoena cnforcement action against a former employee at the Marble Hill nuclear power plant as part of the Comnission's investigation into the procedures followed in testihg concrete used to construct the power plant.
The case was withdrawn on June 23,1980 when the employee agreed to respond to the sub-poena.
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!.I Desrosiers v. NRC (E..D. Tenn. Civ. Action No.1-80-36)
On February 12, 1980, Jim Desrosiers. individually and as Chair-man of the Chattanoogans for Safe Energy, brought suit to enjoin the NRC from issuing a low-power operating license for the Sequoyah nuclear power plant.
On April 3 the district courc dismissed the lawsuit for lack of jurisdiction.
Westinghouse Flectric Coro. v. Hendrie (D.D.C., No. 79-2060, on appeal, D.C.
Cir. No. 79-2069)
Westinghouse Electric Corp. v. Vance (D.D.C. No. 79-2110, on
- appeal, D.C. Cir. No. 79-2070)
Westinghouse sued the NRC and the Department of State, alleging i'
unreasonable delay in the processing of its licenses to export a reactor and components to the Phil'ippines.
On August 30, Judge f
. June Green denied the Westinghouse motion for injunction, and
)
found that the NRC delay was not unreasonable given the important health and safety considerations implied by the application.
I Westinghouse appealed to the D.C. Circuit, but then withdrew its l
9 appeal.
g I
Mississiopi Power and Light Comoany, et al. v. NRC, et al. (5th
-Cir. No. 78-1565)
Nuclear Engineering Company v. NRC. et'al. (5th Cir. No. 78-1871)
Chem-Nuclear Systems v. FRC. et al. (5th Cir. No. 78-2200)
(
5 A number of utilities sued the NRC on -its February 9,1978 license fee rule.
The utilities alleged that NRC exceeded its statutory
~ _ _. _,
7
3 authority in setting the fees.
They sought a declaratipn in the interim, and a refund of all fees collected under the rule and its 1973 predecessor.
The Fifth Circuit affirmed the FRC schedule generally and as against each specific challenge on August 24, 1979.
601 F.2d 223.
The Supreme Court denied certiorari on February 19, 1980.
100 S.Ct. 1066.
A.R. Martin-Trizona v. Department of Justice, et al. (S.D. Ill.
No. 78-4006) t Cormon-on January 30, 1978, plaintiff sued the Justice Department, wealth Edison, and the MRC concerning the withholding.under the FOIA of documents pertaining to the Guad Cities power' station.
NRC 'is asserting Exemption 7 as grounds for withholding the documents.
The court granted the motion to dismiss.
Detroit Edison Company v. NRC '(6th Cir. No. 78-3187 and no.
78-3196) f On September 5,1980, the Sixth Circuit affirmed 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 Court, followi;.g the reasoning in Public
_.. Service Ccmpany of New Hampshire v. United States Fuclear Pegula-tory Commission, 582 F.2d 77 (1st Cir.) c e r t'. denied, 439 U.S.
l 1046 (1978), found that because the Atomic Energy Act provides the Commission jurisdiction over transmission lines, licenses can be conditioned to mitigate the environmental impacts of the routes of
~
4 The Court did not decide whether NEPA provides the such lines.
Commission an independent source of substantive jurisdiction.
On October 22, 1980 the court denied petitioners' motion for rehearing.
Akron, Canton & Younestown R.R. v. ICC (6th Cir. No. 78-3425),
petition for cert. cending (S.Ct. Uo. 79-1833)
On August 3, 1978 the eastern railroads sought review of an ICC decision ordering the railroads to publish tariffs for the carriage of spent fuel.
On December 20, 1979 the Sixth Circuit affirmed the ICC, ruling that the railroads had a common carrier obligation to carry spent fuel.
The court also decided that the ICC should defer to NRC and DOT for setting industry wide safety standards for the carriage of radioactive materials, but che ICC nay allow 611 F. 2d 1162.
individual cariers to make more stringent rules.
The railroads filed a petition for writ of certiorari on May 19, 1980 which is presently pending with the Supreme Court.
Radiation Technology v. NRC (D.N.J. No,79-753)
Claims Act Plaintiff sought money demages under the Federal Tort for costs flowing from the suspen'sion of his materials license.
URC's response alleged that counts 1 and 2 of the complaint were time-barred under the Tort Claims Act, and. disputed the facts of I
the remaining claim.
Judge Stern granted NRC's motion to dismiss counts 1 and 2 on statute of limitations grounds; the remaining
5 claim was settled and subsequently dismissed by the court on February 25, 1980.
78-1855)
Ecoloey Action of Oswego. N.Y. v. NRC (D.C. Cir. No.
the D.C. Circuit affirmed the Appeal Board's On March 12, 1980, refusal to stay the Sterling nuclear power plant construction permit and refusal to enjoin Rochester Gas & Electric Company I
from contracting for uranium to fuel the proposed plant pending Commission re-evaluation of the enviornmental impacts of the The petition for review of the mining and milling of uranium.
25, 1978.
The court Appeal Board's decision was filed August f
agreed with our argument that Ecology Action's assertion o irreparable injury from radon releaser was contrary to the Con-gressional judgment contained in the Uranium Mill Tailing Rad tion Control Act of 1978 that the risk from radon emission be 1Lnited to acceptable levels without stopping uranium mining,
and milling.
79-1368)
City of Lancaster v. URC (D.D.C. No.
f This lawsuit was brought May 21, 1979, seeking to enjoin use o discharge of the EPICOR-II demineralizer system and to enjoin 2 into the accident generated water from Three Mile Island Unit Susquehanna River pending completion of an environmenta The case was settled l
statement and license amendment proceedings.
I 0
1 the C tmission and dismissed with prejudice on February.28, 1980, 9
1terated its intent to prepare a progrannatic caviron-having mental impact statement and having agreed that no accident generated wastewater will be discharged into the Susquehanna River until completion of that sectement or such other environ-mental review as is contemplated by the Commission's November 21, 1979 policy statement, or until December 31, 1981, whichever is earlier.
i 78-1369)
Commonwealth of Kentucky v. NRC (D.C. Cir. No.
the Cocnonwealth of Kentucky sought review of On April 24, 1978 ALAB-459, an Appeal Board decision weich held that th,e Kentucky /
l' Indiana border was the 1792 low water mark on the northwestern or The issue arose when Kentucky Indiana side of the Ohio River.
the discharge pipe'of the Marble Hill facility.would
[
claimed that be in Kentucky territ'ory, and consequently that the Section Federal Water Pollution Control Act permit necessary for 401(a) (1) construction of the plant should have been obtained from Kentucky rather than Indiana.
On April 18, 1980 the D.C. Circuit affirmed 24, 1980 Supreme the Appeal Board finding conclusive a March Court decision in the related case of Kentucky v. Indiana (S.Ct.
l No. 81 Original) which fixed the border as of the 1792 low water mark.
1
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7 Friends of the Earth v. NRC, et al. (D.C. Cal.f.. Div. No.
C-8 0-0 234-SU)
~
On January 30, 1980, Friends of the Earth sued the NRC and PG&E to compel the NRC to prepare a supplemental environmental state-ment to discuss the consequences of Class 9 accidents at Diablo Canyon.
F0E 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-gorically exclude detailed discussions of Class 9 events as
" unforeseeable" for purposes of NEPA environmental analysis.
j NRC's cocion to dismiss the lawsuit for lack of subject matter jurisdiction was granted September 26, 1980, on the ground that the licensing proceeding, when the identical issue is pending l
for decision, was still ongoing.
l Honicker v. Hendrie -(M.D. Tenn. Civ. No. 78-3371-NA-CV on appeal l
6th Cir. No. 79-1132, on petition for writ of certiorari S.Ct. No.
I 79-710)
Plaintiff sued the NRC for injunctive relief, alleging that the NRC had permitted nuclear power reactors and fuel cycle facilities to operate while underestimating the magnitude of adverse health l
l consequences from th'e nuclear fuel cycle.
Plaintiff sought revo-cation of all licenses and dismantling of all fuel cycle facili-ties.
On February 19, 1980 the Supreme Court denied Ms. Honicker 's l
petition for a writ of certiorari. from the 6th Circuit decision which had affirmed the district court's dismissal of the case for 1
e 8
lack of subject matter jurisdiction.
See 465 F. Supp. 414 (M.D.
~
Tenn.), aff'd 605 F.2d 556 (6th Cir.), cert. denied 100 S.Ct.
10015 (1980).
Virginia Sunshine Alliance v. NRC, et ~ al. (D.D.C. No. 79-1989, on appeal, D.C. Cir. No. 79-2060)
On July 31, 1979, plaintiff sued to block the shipment of spent
~ fuel from foreign research reactors through Portsmouth, Virginia, based on a claimed threat of sabotage, and alleging that the route On approval was given contrary to UEFA and URC regulations.
August 3, District Court Judge Penn denied plaintiff's request to preliminarily enjoin spent fuel shipments through Ucrfolk, Virginia, finding that the Commission's new safeguards rule pro-vided adequate protection against sabotage. threats and that the l
Commission had taken a "hard look" at the sabotage issue in compliance with NEPA.
An appeal frca 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.
i I
Life of the Land v. Adams (D. Fawaii No. 79-0249)
H 1
h fuel Plaintiffs challenged the transport of two shipments of spent l,
from Japan through Hawaiian waters and the port of Honolulu, seek-ing preparation of an environmental impact statement and compliance with the Ports and Waterways Safety Act.
The application for i
injunction on the first of these shipments was denied on June 7, f
l l
9 1979, and upheld by the Ninth Circuit on June 8, 1979.
The governor closed the port to both shipments.
One was pdrmitted to refuel at Pearl Harbor on an emergency basis; the other refueled in non-Hawaiian waters.
Because no more shipments were scheduied, the Justice Department filed a motion to dismiss on grounds the case was moot.
On December 19, 1979, a voluntary dismissal was approved by the court.
Southern California Edison v. URC (9th Cir. No. 79-7529)
On October 15, 1979, Southern California Edison petitioned the 4
Ninth Circuit to review the Appeal Board's June 15, 1979 decision, ALAB-550, which denied the company's cocion to quash a subpoena the Licensing Board had issued in conneccion 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. NR C ( 3d Cir. N'os. 80-1295 and 80-1307)
Pennsylvania Power Comoany v. NRC (3d Cir. Nos. 80-1296 and 80-1310)
These petitions for review were filed on 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 imposed to correct
l 10 that si'tuation.
'The utilities voluntarily withdrew their appeal and on October 8, 1980, the case was dismissed.
Hunt v. NRC (10th Cir. No. 79-1667) 1 On November 23, 1979 the U.S. Court of Appeals for the Tenth Circuit affirmed a lower court decision that the Sunshine Act does not apply to hearings conducted.by 5tomic Safety and Licensing 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 Commission or to similar subdivisions of other agencies.
Townshio of Lower Alloways Creek v. NRC, (D.N.J. No. 1129)
On December 10, 1979 Judge Brotman of the federal district court l
in New Jersey granted our motion to dismiss a complaint challenging the proposed expansion of the spent fuel pools at Salem Units 1 and 1
2.
He found that plaintiffs had not exhausted their administrative remedies since the utility's request for an operating iicense amendment to expand the Salem Unit 1 spent fuel pool was before a Licensing Board and the Salem Unit 2 expansion request was being l
considered in the review of the utility's operating license appli-l cation.
481 F. Supp. 443 (D.H.J. 1979).
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11 County of Ocean v. MRC (D.N.J. No. 79-1800)
On June 11, 1979 a complaint 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 fuel pool, there was no case or controversy.- As to Oyster Creek plaintiffs failed to exhaust available 10 CFR 2.206 administrative remedies.
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