ML20045F641
| ML20045F641 | |
| Person / Time | |
|---|---|
| Issue date: | 06/11/1993 |
| From: | Corded J NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| To: | |
| References | |
| SECY-93-163, NUDOCS 9307080178 | |
| Download: ML20045F641 (32) | |
Text
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RELEASED TO THE PDR p** ~%
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- &sfi ADJUDICATORY ISSUE June 11, 1993 SECY-93-163_
(Informat. ion)
FOR:
The Commission FROM:
John F.
Cordes, Jr.
Solicitor
SUBJECT:
LITIGATION REPORT - 1993 - 08 Advanced Medical Systems. Inc.
- v. United States, No. 93-3602 (6th Cir., filed June 3, 1993)
This petition for review attacks a Commission adjudicatory decision, issued March 30, holding moot an agency proceeding on two related decontamination orders.
Petitioner AMS, although agreeing that it had already complied with the decontamination orders, insisted before the Commission that continued litigation I
was necessary to resolve the legitimacy of the orders.
The Commission held that no exception to the mootness doctrine permitted continued litigation over orders that had no ongoing effect.
The court of appeals established a briefing schedule requiring petitioners to file their brief in mid-July and the NRC to file i
its brief in mid-August.
We may file a notion prior to briefing seeking dismissal of petitioners' suit as untimely, as it apparently was filed more than sixty days after the Commission decision.
Attachment:
Petition for Review j
Contact:
Carole F.
Kagan NOTE:
TO BE MADE PUBLICLY AVAILABLE 504-1620 IN 10 WORKING DAYS FROM THE DATE OF THIS PAPER I
9307080178 30613 P
l PDR SECY v
93-163 9 PDR
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2 1
Datta v.
Selin, No. H93-1418 (D. Md.,
filed May 14, 1993) l This is a civil rights suit against the NRC claiming illegal age and race discrimination in a hiring decision.
Please contact OGC if interested in more information.
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Attachment:
Summons
Contact:
Marvin Itzkowitz 504-1566 United States v. Conley, Civ. no. 91-11556-K (D. Mass., May 24, 1993)
For a number of years the Commission, and later the NRC's Inspector General, have been seeking by subpoena audio tapes of telephone conversations between Stephen Comley and an NRC l
official.
Mr. Comley has declined to apply with court orders to produce the tapes and has been assessed substantial fines for contempt.
In the latest turn of events, the district court (Keeton, J.) has dismissed the government's subpoena enforcement action on the grounds that the contempt fines against Mr. Comley were serving no coercive purpose and that the government had not sought Mr. Comley's imprisonment.
.The government has sixty days to appeal.
We currently are consulting with the United States Attorney's office in Boston and with the NRC's Office of Inspector General on the appeal question.
Attachment-Memorandum and Order
Contact:
.l Carole F. Kagan 504-1620 N
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n F.
Cordes I
S licitor l
DISTRIBUTION:
OPA IP OCA OPP REGIONAL OFFICES EDO-ASLBP j
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1020 LONDON ROAD
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CLEVELAND, OHIO 44110
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LE0flARD GREE!!, Cid Petitioner
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AND
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DR. SEYMOUR STEIN
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4d 1020 LONDON ROAD
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CLEVELAND, OHIO 44110
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Petitioner
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CIVIL ACTION NO.
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v.
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THE UNITED STATES OF AMERICA
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Respondent
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Serve:
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Janet Reno
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U.S. Attorney General
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py Department of Justice
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A 10th and Constitution Avenue
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Washington, D.C.
20530
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i "L,.J.T.3 GREEN. Clerk cfN Ocputy Cicrk PETITION FOR REVIEW TO THE HONORABLE, THE JUDGE OF SAID COURT, the Petitioners, through
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counsel state as follows:
- 1. This action is brought against the United States of America under Article 28, Sections 2341(2) and (3)(A), 2342(4), 2343, and 2344. Venue lies in this Sixth i
Circuit under Section 2343 since the Corporate Petitioner has its principle office in Ohio which is in this judicial circuit. Individual Petitioner Stein is President of this corporation.
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- 2. The Nuclear Regulatory Commission is the successor of the Atomic Energy Commission and is an " agency" as defined by. Article 28, Section 2341(3)(A). This action is brought against the United States pursuant to Article 28, Section 2344.
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3.
On October 10, 1986, the AMS license was suspended by the Nuclear Regulatory Commission (NRC) for alleged violations. Subsequent to this action, one of the AMS facilities was ordered to decontaminate by using outside consultants.
The Petitioners filed timely and appropriate Motions and Petitions with the proper Administrative bodies requesting that the decontamination order be dismissed and that damages be assessed as a result of all of the actions of the Nuclear Regulatory Commission. In addition, the Petitioners requested that all actions against the Respondent be consolidated.
4.
On March 30, 1993, the Nuclear Regulatory Commission denied AMS's Petition for review of the decontamination matter and consolidation of all actions against the Respondent. A copy of that Memorandum and Order is attached as Exhibit One.
5.
Relief is sought based on the grounds that it was error for the Respondent to determine that the issue was moot regarding the mootness of the decontamination orders. The Respondent, as the deciding administrative body had an obligation to determine the issues on their merits since otherwise, at least at the i
administrative level, the Petitioner would be without a remedy even if there was a wron g.
Certainly, if the Respondent suffered damages as a result of an incorrect action by the Nuclear Regulatory Commission, it has a right to restitution for those damages even if the decontamination order was later withdrawn.
6.
The Petitioner prays that this Honorable Court, pursuant to Article 28, l
Section 2342(4), will determine that the final order of the Nuclear Regulatory Commission is invalid since it was based on an incorrect premise or in the alternative, that this llonorable Court will set aside the Order of the Nuclear Regulatory Commission.
i 1
l 1
J4[ET G. ALDRICH, ESQ. "
9309 Colesville Road Silver Spring, Maryland 20901 301/565-0049 h
M SifERhY J. S'($11Y, ESQ.
131 North Eagle Street Geneva, Ohio 44041 216/466-4671 ATTORNEYS FOR THE PETITIONERS 2.
RECElvgoppg_5 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'93 NE 30 P2:24 Commissioners:
LawY; Ivan Selin, Chairman e
Kenneth C.
Rogers James R.
Curtiss Forrest J. Remick E. Gail de Planque
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SERVED MtP 3 n,.'s In the Matter of
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ADVANCED MEDICAL SYSTEMS, INC.
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Docket No. 30-16055-OM One Factory Row
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Geneva, Ohio 44041
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(Byproduct Material
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(Decontamination Order)
License No. 34-19089-01)
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MEMORANDUM AND ORDER i
n.
CLI-93-8 I.
Introduction The Atomic Safety and Licensing Board has dismissed as moot a long-pending proceeding on two related decontamination orders that the Nuclear Regulatory Commission (NRC) staff issued to Advanced Medical Systems, Inc. (AMS), a byproduct materials licensee.
LBP-92-36, 36 NRC (Dec. 15, 1992).
AMS has petitioned the Commission for review of the Boars order in d
accordance with 10 C.F.R. S 2.786(b).
Although AMS has taken the underlying action required by the orders and does not contest the necessity of the decontamination measures, AMS claims that the proceeding is not moot and insists that it is entitled to
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2 litigate the legitimacy of the staff's use of immediately effective orders to require AMS to decontaminate its facility.
The NRC staff opposes AMS's petition for review.
Upon consideration of these filings and the record of the proceeding, l
the Commission finds no clear error or substantial question requiring our review.
AMS's petition is, therefore, denied.
II. Background i
The proceeding stems from two staff orders issued in 1987.
The first order, issued on July 23, 1987, modified AMS's license to require AMS to commence decontamination and other related facility modifications by August 31, 1987.
52 Fed. Reg. 28,366 (July 29, 1987).
The order described the existence of significant contamination and radiation levels at AMS's facility on London Road in Cleveland, Ohio, and recited the history of the
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staff's efforts to obtain commitments from AMS to develop and implement plans for decontamination of the facility.
After several communications with AMS, the staff amended AMS's license on June 25, 1986, to require AMS to submit within 60-days a decontamination plan for the facility and a contract for decontamination by a qualified contractor.
After AMS identified a contractor in July 1986 and a schedule for developing a decontamination plan, the staff extended 'tlue time for submittal of the plan.
AMS submitted a decontamination plan and an associated schedule for its completion in September 1986, and the staff thereafter issued a license amendment in October 1986 to require initiation of decontamination in accordance with the plan r
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3 by December 22, 1986.
One day after this deadline had passed, AMS requested that the license condition requiring initiation of decontamination be put in abeyance pending resolution of a separate suspension order then in effect against AMS for alleged i
violations of AMS's license conditions pertaining to service and i
maintenance of teletherapy units supplied to its customers.
The staff declined such relief, but AMS further requested in March i
1987 that its license be modified to defer commencement of decontamination until March 1, 1988.
As a result of the lack of progress toward decontamination of AMS's London Road facility and AMS's violation of specific license conditions pertaining to decontamination activities, the staff issued its " Order Modifying License, Effective Immediately, and Demand for Information" on July 23, 1987.
In view of the continuing degradation of radiological conditions at the site and l
the potential for significant radiation exposures, and the lack of adequate assurance, as evidenced by AMS's failure to meet the terms of its license, that AMS would undertake decontamination of its facility, the staff found that the public health, safety, and interest required commencement of decontamination in accordance with AMS's license conditions by August 31, 1987.
The staff l
therefore made the order "immediately effective" in accordance with the provisions of 10 C.F.R. S 2.201(c) and S 2.204 (1987).
AMS demanded a hearing on the order, arguing that AMS had taken reasonable steps to undertake decontamination but that the NRC itself had blocked its efforts through delay in reviewing
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AMS's plans, imposition of unreasonable requirements, and a l
suspension of AMS's license.
AMS also challenged the basis for making the order immediately effective.
AMS subsequently requested relief from 'the order because its contractor for the decontamination work had gone out of business.
The staff permitted adjustments in the schedule and plan in a l
" Confirmatory Order Modifying License, Effective Immediately" issued on October 30, 1987.1 AMS further demanded a hearing on I
the October order, alleging that the relief granted by that order did not resolve the un6erlying controversy over the appropriateness of issuing an order to AMS in the first instance
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or over the staff's invocation of its power to make the order immediately effective.
AMS's hearing requests were referred to the Licensing Board.
j Although there was consideration of whether the Board could conduct some sort of " preliminary hearing" on the immediate effectiveness of the orders, the Licensing Board eventually determined, at a prehearing conference on July 20, 1988, to grant AMS's request to hold the proceeding in abeyance pending completion or resolution of the remaining actions under the order.
Transcript at 42-43, 47.
Although AMS's counsel suggested that some settlement with the staff night be reached, i
he maintained that the staff's use of immediately effective 1
52 Fed. Reg. 43,693 (Nov. 13, 1987).
Although labelled
" confirmatory", AMS had not consented to entry of the order; the order only " confirmed" staff's agreement to provide AMS relief from some of the requirements of the earlier order.
1
S orders would remain a litigable issue even after the underlying requirements of the orders had been satisfied.
Id at 40.
AMS completed the decontamination activities under the order to the staff's satisfaction in 1989, a point that the staff has repeatedly stressed to AMS and the Licensing Board.
Eng LBP 36 at 2 n.4.
The staff unsuccessfully sought to reach an agreement with AMS to dismiss the proceeding.
Failing that, the staff then sought and the Licensing Board granted dismissal on grounds of mootness.
The Licensing Board rested its determination primarily on the fact that AMS had satisfied the decontamination requirements of the staff's orders.
Because the decontamination had been completed, the Licensing Board believed it impossible to fashion any remedy even if AMS were able to convince the Board that the orders had been improperly issued.
Thus, the intervening clean-up rendered the controversy moot, and the Board saw no exception to the mootness doctrine.2 III. Analysis In determining whether to grant, as a matter of discretion, a petition for review of a Licensing Board order, the Commission gives due weight to the existence of a substantial question with respect to considerations set out in 10 C.F.R. S 2.786(b) (4)
(1993).
The considerations set forth in 10 C.F.R. S 2.786(b) (4) 2 LBP-92-36 at 4 n.7.
The Licensing Board also denied for lack of jurisdiction AMS's motion to consolidate this proceeding with two other proceedings in which AMS's appeals are pending before the Commission.
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6 are: (1) a clearly erroneous finding of material fact; (ii) a necessary legal conclusion that is without governing precedent or departs from prior law; (iii) a substantial and important question of law, policy or discretion; (iv) h prejudicial procedural error; and (v) any other consideration deemed to be in the public interest.
Although AMS does not reference the particular criteria in section 2.786(b) (4), we understand its petition to allege that the Licensing Board departed from prior law and committed a prejudicial error in dismissing the decontamination proceeding as moot.
Accordingly, AMS asks that we reverse the Licensing' Board's order and further that we consolidate this proceeding with two others in which AMS's appeals are presently pending before the Commission.3 We have closely examined AMS's petition and the record of the proceeding, but AMS has not persuaded us that the Licensing Board committed a legal or procedural error warranting our further review or reversal of the Licensing Board's decision.
3 Whatever the merits of the Licensing Board's determination of mootness in the decontamination proceeding, the Board properly denied AMS's motion for consolidation of two other proceedings involving AMS with the decontamination proceeding.
Because appeals are pending before the Commission from the Board's decisions in these other proceedings, gag LBP-90-17, 31 NRC 540 (1990), and LBP-91-09, 33 NRC 212 (1991), the Licensing Board retained no jurisdiction over those matters.
Egg Georcia Power Cat (Vogtle Electric Generating Plant, Units 1 and 2),
ALAB-859, 25 NRC 23 (1987).
Moreover, we perceive no reason why we should consolidate the proceedings; each proceeding involves substantially different facts and AMS makes no showing that consolidation will be conducive to the proper dispatch of the proceedings and the ends of justice.
See 10 C.F.R.
S 2.716; Safety Licht Corp., CLI-92-13, 36 NRC 79, 89-91 (1992).
The Commission expects to render decisions on AMS'S remaining appeals in the near future.
I
7 The mootness doctrine derives from the Constitution's limitation on federal courts' jurisdiction to " cases" or j
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" controversies".
Flast v. Cohen, 392 U.S.
83, 94 (1968).
Although the Commission is not strictly bound by the doctrine, the agency's adjudicatory tribunals have generally adhered to the principle.
Sag, susL_, Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), ALAB-455, 7 NRC 41, 54 (1978), remanded on other arounds sub nom. Minnesota v. NRC, 602 j
F.2d 412 (D.C. Cir. 1979).
A case is moot wheri there is no reasonable expectation that the matter will recur and that interim relief or intervening events have eradicated the effects of the allegedly unlawful action. County of Los Anceles v. Davis, 440 U.S.
625, 631 (1979).
Even when an agency's order no longer has effect, a case may not be moot if it is " capable of repetition, yet evading review":
1.e.,
if the challenged action was too short in duration to be litigated and there is a i
reasonable expectation that the same party will be subjected to the same action again.
Southern Pacific Terminal Co. v.
Interstate Commerce Comm'n, 219 U.S. 498, 515 (1911); Securities
& Exchance Comm'n v.
Sloan, 436 U.S.
103, 109 (1978); Center for Science in the Public Interest v. Recan, 727 F.2d 1161, 1170 (D.C. Cir. 1984).
There is no dispute that the decontamination actions required by the orders have been completed satisfactorily.
Notwithstanding the Licensing Board's determination that its ability to fashion a remedy had been extinguished by completion e
h a
8 of decontamination, AMS insists a litigable controversy remains.
We understand AMS's-argument to be two-fold:
first, that the Licensing Board erred in deciding that no live controversy remained in view of the lingering effects of the orders on AMS; and second, that the Board erred in deciding that the case did not fall within an exception to the mootneFS doctriDO.
I With respect to the first part of AMS's argument, AMS claims that the orders continue to affect it because the orders will subject AMS to " heightened scrutiny and the potential for escalated fines".
Petition at 8.
Under the Commission's enforcement policy, similar violations identified in prior enforcement actions are considered in escalating enforcement actions or in assessing the amount of civil penalties if such violations occurred within the past two years or since the last inspection, whichever time period is longer.
See 10 C.F.R. Part 2, Appendix C, S VI.B.2.(c), Licensee Performance, & Table 2 (1993).
To the extent that the staff's orders are said to rest on a violation of AMS's license (i.e., ANS's failure to commence decontamination activities by the time prescribed in its license conditions), the violation would not be considered under the enforcement policy as a basis for escalating future enforcement actions because it occurred over six years ago and was cited in an order issued well over five years ago.
The staff has inspected AMS twice since the orders were issued - on November 14-18, 1988, and January 23-26, 1990.
Ege NRC Staff Response in
. Opposition to AMS' Combined Motion to Deny the Staff's Motion for o
9 Termination and Request for Order Compelling Staff Response to Interrogatories, at 7.
The staff deems the orders satisfied.
Thus, we can fathom no real possibility, absent some extraordinary circumstance not described for us here, that the orders would be used as a basis for escalating any future enforcement sanction.
The orders also do not appear to have any other collateral legal effects.
Notwithstanding the orders, AMS's subsequent application for license renewal was granted in 1989.' In these circumstances, AMS's claim of future adverse effects from the orders is specu'.ative and insufficient to overcome the Board's finding of mootness.
Egg Friends of Keeseville. Inc. v. FERC, 859 F.'d 230, 234 (D.C. Cir. 1988); Westmoreland v. National e
Transo. Safety Bd.,
833 F.2d 1461, 1463 (lith Cir. 1987); B & B Chemical Co.
v.
EPA, 806 F.2d 987, 990 (lith Cir. 1986).
AMS also claims that it has been subjected to " ongoing negative publicity" from ne orders which the Board ignored in its determination of mootness.
AMS Petition at 7.
To be sure, AMS identified an NRC press release and a few newspaper reports that refer expressly or implicitly to AMS.5 However, neither At the July 1988 prehearing conference,- AMS counsel indicated that AMS was concerned with the potential effects of the orders on AMS's pending license renewal application.
Transcript at 49-50.
5 f;se AMS's Combined Motion to Deny NRC Staff's Motion for Termination of Proceeding and Request for an Order that the NRC Staff Be Compelled to Respond to AMS's Interrogatories... And Cooperate with Discovery; at 8-10 (Sept.
2, 1992).
AMS identifies an NRC press release dated April 8, 1992, and three (continued...)
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the press release nor the articles refer to the orders.
Although 1
one article refers -- without identifying AMS -- to radioactive hazards requiring decontamination and other protective actions, the article focuses on a general NRC-sponsored study of radiation hazards related to sewage treatment.
Davis & Sammon, supra note 5.
Any publicity stemming from the NRC press release and the remaining two articles was occasioned not by the 1987 orders but by the NRC's inclusion of AMS in the agency's " Site recommissioning Management Plan" (SDMP).
See Action Plan to Ensure Timely CJeanup of Site Decommissionino Manacement PlaD Sites, 57 Fed. Reg. 13,389 (Apr. 16, 1992).
The SDMP applies to some 40 sites for which the NRC has identified a need-for decontamination.
AMS remains on the SDMP list because "the NRC's estimated cost for final decommissioning exceeds licensee's i
e financial assurance N tement".
SECY-92-200, Updated Report on
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Site Decommissioning.:.e f.( 2nent Plan, at 50, Table 2 (May 29, j
1992); see also id., Appendix A, at A7-A10.
The SDMP also I
indicates that future action will be required to address contamination in AMS's liquid waste hold-up tank room ("WHUT").
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Decontamination of the WHUT was originally within the scope of the 1987 orders, but the staff agreed to AMS's proposal to seal l
the room and to defer development and implementa. tion of 5(... continued) newspaper articles:
Dave Davis & Bill Sammon, Sewace Workers Exposed to Radiation. CLEVELAND PLAIN DEALFD, Aug. 30, 1992, at 1B; Jay Greene, NRC Says S Cleveland Area if qs Laq in Nuclear Clean _
l!p, CLEVELAND PLAIN DEALER, Apr.
9, 1992, aL 1B; Holly Yeager, EPA Report: Ohio's Home to 803 Radioactive Sites, LAKE COUNTY News HImum, Apr.
9, 1992, at 6.
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11 decontamination plans to some future date.'
Thus, publicity given to the possibility of future actions under the SDMP is not fairly traceable to the 1987 orders.
In any event, AMS did not provide the Board with any showing that AMS had suffered any I
specific and direct injury to its business from the publicity.
Efx Reeve Aleutian Airways, Inc. v. United States, 689 F.2d 1139, 1143 (D.C. Cir.1989) (demonstration of particular adverse effects on airline's business).
AMS also argues that the proceeding falls within the etception to the mootness doctrine for cases that are capable of repetition but which will otherwise evade review.
Petition at 8.
j To fall within ths exception AMS nust demonstrate that the challenged action was too short in duration to be fully litigated prior to its cessation or expiration And that there is a or reasonable expectation that AMS will be subjected to the same action again.
Weinstein v.
Bradford, 423 U.S.
147, 149 (1975).
AMS argues that the decontamination orders were " fleeting" events and that AMS can reasonably expect that it will be subjected to such orders in the future.
Petition at 8.
The mootness exception is typically applied in c.ircumstances i
in which a short-term action expires by its own force before the underlying basis for the action can be adjudicated.
- Egg, e.a.,
Securities & Exchance Comm'n v. Sloan, 436 U.S.
103, 109-10 6
Egg Letter from C.
E. Norelius, NRC Region III, to Sherry Stein, AMS Counsel-(Jan. 23, 1992).
Staff plans to review the
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status of the WHUT in connection with renewal of'AMS's license in 1994.
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12 (1978)(20 day suspension); ConnAire. Inc. v Unined States Deo't of Transo., 887 F.2d 723 (6th Cir. 1989)(120 day suspension).
As the staff notes, the orders here were hardly short-lived, fleeting actions, particularly in view of the two-year time period that it took to achieve compliance with the orders.
NRC Staff Response in Opposition to AMS's Petition for Review, at 7 n.7.
Thus, this order does not fall within the category of short-term orders contemplated under the exception.
Contrary to AMS's charge of dilatory tactics by the staff, AMS's own counsel suggested deferral of litigation pending completion of decontamination, resolution of action with regard to the WHUT, and possible settlement of any remaining matters.7 The orders do not appear reasonably capable of repetition.
In this case, there is no genuine dispute over the aa.
appropriateness of the decontamination that AMS undertook; AMS only disputes the staff's use of orders -- and particularly staff's invocation of the procedure to make those orders "immediately effective" -- to achieve the decontamination objective that AMS otherwise agrees was warranted.
The orders themselves and the bases for making them immediately effective were truly sui aeneris in that they involved particular Egg Transcript at 31, 39-40, 42, 47-48.
Counsel stated that the remaining issue was the issuance of an immediately effective order that "goes into our enforcement history"; he also indicated concern over the potential impact of the orders on AMS's then-pending license renewal application. Transcript at 39, 49-50.
As we have noted, however, AMS's license was renewed in late 1989, and the orders entail no apparent consequences to possible future NRC enforcement actions against AMS.
13 circumstane s peculiar to AMS and the Cleveland site which are unlikely to 'a repeated.
They do not involve the application of any sm.~^-rt
.e regulatory rule or requirement, the interpsctation of which is likely to be invoked again and again in subsequent agency actions.
The staff acknowledges that AMS has satisfactorily performed decentamination within the scope of the orders.
Any future orders would be based on matters beyond the scope of the instant orders or on future intervening circumstances.
Although AMS as a licensee is certainly subject to future orders,8 the legitimacy of such orders is highly fact-dependent, and a mere possibility of future action is not sufficient to eclipse a finding of mootness.
Friends of Keeseville, Inc.
v.
FERC, 859 F.2d 230, 234, 237 (D.C. Cir.
1986).
Moreover, such orders and any immediate effectiveness provisions would not evade review in the future.
The Commission adopted procedural rules in 1992 which provide for a prompt review of the immediate effectiveness of staff enforcement orders which the NRC deems final agency action on the question of immediate effectiveness.
Revisions to Procedures to Issue Orders:
Challences to Orders That Are Made Immediatelv l
Effective, 57 Fed. Reg. 20,194 (May 12, 1992)(amending 10 C.F.R. 5 2.202 (c) (2)).
AMS has not shown, therefore, that this l
In fact, however, no orders have been issued Egainst i
8 AMS's license since 1987.
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14 proceeding satisfies either aspect of the exception to the nootness doctrine.
IV. Conclusion AMS has not identified a prejudicial er'ror in the Licensing Board's dismissal of this proceeding or other substantial question regarding its determination of nootness that would warrant our further review in accordance with 10 C.F.R.
S 2.786(b).
Consequently, AMS's petition for review of LBP-92-36
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and its request for consolidation of all proceedings involving AMS are denied.
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'I For the Commission f
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M h~b e
L SAMUEL 7 CHILK
'ecretary of he Commission Dated-a,>t Rockville, Maryland, this 3-day of March 1993.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of i
ADVANCED MEDICAL SYSTEMS, INC.
Docket No.(s) 30-16055-0M CERTIFICATE OF SERVICE i
I hereby certify that copies of the foregoing COMM M&O (CLI-se u, vic 3/30 have been served upon the following persons by U.S. mail, fit st class, except as otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712.
Office of Commission Appellate Administrative Judge Adjudication Robert M. Lazo, Chairman U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Administrative Judge Director su Ernest E. Hill Office of Inspection & Enforcement Hill Associates U.S. Nuclear Regulatory Commission 210 Montego Drive Washington, DC 20555 Danville, CA 94526 Administrative Judge Stephen H. Lewis, Esq.
Harry Foreman Senior Supervisory Trial Counsel 1564 Burton Avenue Office of the General Counsel St. Paul, MN 55108 U.S. Nuclear Regulatory Commission Washington, DC 20555 Colleen P. Woodhead, Esq.
Counsel for NRC Staff Sherry J. Stein, Esq.
Office of the General Counsel 131 Porth Eagle Street U.S. Nuclear Regulatory Commission Geneva, OH 44041 Washington, DC 20555 i
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Docket No.(s)30-16055-0M COMM M&O (CLI-93-8) DTD 3/30 Regional Administrator Janet G. Aldrich, Esq.
U.S. Nuclear Regulatory Comission 9309 Colesville Road Region III Silver Spring, MD 20901 799 Roosevelt Road Glen Ellyn, IL 60137 Dated at Rockville, Md. this 0 litfid. L)[i L t^
< $t 30 day of March 1993 Office of the Secretary of the Comission e
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filed May'14, 1993)-
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IN THE UNITED STATES C' STRICT COURT FOR THE DISTRICT OF MARYLAND CIVIL ACTION NO.
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Van b61ln ho r rin4 r1 1h U.S. kuc ecc kegulaftry cmdssion 3j C
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You are hereby summoned and required to serve upon C
12400 Rost ourt Plaintiff's my whose address is PDtonTf. fnd 2CT59 an answer to the complaint which is herewith served upon you, within [, $
days af ter service of this summons upon you, exclusive of the day of service. If you fall to do so, judgment by default will be taken against you for the relief demanded in the complaint.
JOSEPH A. HAAS Clerk of Court
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Deputy Clerk NOTE: THIS S MMONS IS ISSUED PURSUANT TO RULE 4 OF THE FEDERAL i
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I (a) PLAINTIFFS DEFENDANTS Ivan Selin, Chairman Amarendranath Datta Nuclear Regulatory Commission 12400 Frost Court One White Flint North Bldg.
Potomac, MD 20854 11555 Rockville Pike Rockville, MD 20852 (b) COvNTv Or sESioENCt Or naSt tiSito PtuNTar #.ontgomery COUNTY OF RESIDENCE OF F6RST LISTED DEFENDANT iEFCEP11N U S PLAINTIFF CASES)
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Violation of Section 717 of the Civil Rights Act, 42 U.S.C. 2000e-16 and Age Discrimination in Employment Act, 29 U.S.C.
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i ATTACHMENT -
I United States v. Comlev,.Civ. no.- 91-11556-K (D.. Mass., May 24, 1993)
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. < '.'+* ' + * * ' " ^ 2 ' em i, w r r r. c-Gava *Jsvw'a 4 UNITED STATES DISTRICT COURT DISTRICT OF MASSACIIUSETTS UNITED STATES OF AMERICA,
)
Petitioner
)
)
v.
)
CIVIL ACTION
)
NO. 91-11556-K STEPliEN B.
- COMLEY,
)
Respondent
)
)
Memorandum and Order May 24, 1993 Now before the court is petitioner's Motion For Entry of Partial Judgment Regarding Fines For Contempt (Docket No. 43, filed November 17, 1992),
together with petitioner's Memorandum In Support (Docket No.
47, filed April 2,
1993) and respondent's Memorandum in Opposition (Docket No. 48, filed April 16, 1993).
Also before the court is respondent's Motion to Dismiss And Memorandum In Support Thereof (Docket No. 46, filed April 2,1993),
together with petitioner's Memorandum in Opposition (Docket No. 52, filed May 4, 1993).
I.
Background
By order dated July 10, 1992, this court held respondeilt Stephen B. Conley in contempt for failure to comply with this court's order of October 31, 1991, which required the respondent to appear and produce all documents demanded in a subpoena issued March 12, 1991 by the Nuclear Regulatory Commission.
This court also imposed on respondent the following fines if he failed to
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caus;sagvu,u a comply by July 13, 1992:
$200.00 per day for the first five days of noncomplianco (including July 13, 1992) ; $500.00 per day for the next ten days of noncompliance; and $1000.00 per day for each day of noncompliance thereafter.
To date, respondent has neither complied with this court's October 31, 1991 order nor paid any of the accrued fines.
II.
Petitioner's Motion for Entry of Partial Judgment On November 17, 1992, petitioner moved for entry of i
partial judgment in the amount of $115,000.00 against respondent (representing fines accrued and unpaid between July 13, 1992 and November 13, 1992, inclusive).
Petitioner's motion states that
"[t]he United States seeks entry of partial judgment so that it may effectuate the collection of the =onics due."
Motion for Entry of Partial Judgment (Docket #43) 55.
Petitioner argues that such a partial judgment falls within the neaning of " judgment" contained in the Federal Debt Collection Procedure Act ("FDCPA"), 28 U.S.C.
53001 si set.
and that such a judgnent would be enforceable in accordance with the proceduros set forth in the FDCPA.
Petitioner also relics upon two First Circuit cases, In Re Grand Jury Proceedinos, 795 F.2d 226 (lat. Cir. 1986) and In Re Grand Jurv
~
Proceedinas, 871 F.2d 156 (1st.
Cir.
1989),
to support its contention that this court has the authority to enter such a partial judgment.
Although the First circuit in the earlier of ~
~
those two cases recites that Judge Mazzone entered three separate partial judgments, each relating to different time periods following a contempt order, the authority of the district court generally to issue such a partial judgnent was not at issue in the 2
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I Petitioner has cited no other cases in its favor, and the appeal.
For the reasons explained below, however, court has located none.
i it is unnecessary for the court to determine its authority to enter such a partial judgment.
III.
Respondent's Motion to Dismiss on April 2,1993, respondent moved to dismiss this action for lack of prosecution and because the ineffectiveness of the coercive fines renders such fines punitive and beyond the power of the court to impose here.
Four Month Delay in Government Action A.
Respondent has moved to dismiss this action for lack of 1992 and prosecution, citing the four month period between July 13, November 13, 1992, during which petitioner took no action against i
respondent.
I find that petitioner was not unreasonable in
)
allowing four months to pass in order to determine whether or not 1992 Order.
respondent would comply with this court's July 10, B.
Effectiveness of Coercive Fines Petitioner's statenents at the hearing held on March 19, however, have raised a more fundamental issue regarding the
- 1993, continuing accrual of fines.
At that hearing, petitioner conceded in view of respondent's ongoing failure to comply with this
- that, court's orders, the continued accrual of fines was unlikely to induce compliance.
Respondent has moved for ' dismissal on the grounds that the failure of the coercive fines to produce compliance renders those fines punitivo, in which case the fines f
would be beyond the power of this court to impose in a civil contempt proceeding.
i 3
l Despite petitioner's admission of the ineffectiveness of the continuing fines, petitioner specifically declined, at the i
1993 hearing, to request the incarceration of respondent March 19,
- Instead, in order to compel compliance with this court's orders.
petitionar argued at that hearing for the imposition of some form i
of alternative sanction, such as home confinement or weekend The court invited petitioner to provide the court I
incarceration.
with a memorandum to support petitioner's contention that the court has the authority to impose such an alternative sanction in a contempt proceeding.
Petitioner has not submitted such a
memorandum, nor has petitioner moved for incarceration of Petitioner's submissions address only its request for respondent.
the entry of partial judgment in the amount of accrued fines.
In view of (1) petitioners' admission that the continued accrun1 of finos is unlikely to produce compliance by respondent, petitioner's failure to support its request for the imposition (2) of an alternative sanction, and (3) petitioner's unwillingness to request the incarcoration of respondent, it appears that petitioner is unprepared to proceed to stronger remedies to secure The court is without authority to impose respondent's compliance.
punitive fines, as opposed to coercive or compensatory fines, in a
_ civil contempt proceeding.
G.
C.
Merrian Co.
v.
Webster giggionary Co.. Inc., 639 F.2d 29, 41 (1st Cir. 1980); parkel v.
United
- States, 153 F.2d 66, 70-71 (1st Cir.
1946).
- Here, petitioner has failed to produce any evidence to support a finding
- Also, l
that additional fines may secure respondent's compliance.
l this court has previously entered a final judgment in the amount of 4
c m
-- + -. -. -
1991 (M.B.D. No.89-422) in
$135,500 against respondent on May 20, an action on an earlier subpoena requesting the same information sought here.
I find that, even if the court has the authority to issue a
continuing series of partial judgments, there is little likelihood that such a
sequence of judg2nents would produce compliance here.
I find also that (1) the fines imposed on and after July 13, 1992, unaccompanied by any stronger sanction such as incarceration until respondent complied with the court's order, proved to be ineffective to induce compliance; (2) the ineffectiveness of the fines alone to achieve compliance had not become reasonably determinable before November 13, 1992; (3) in 1992 should these circumstances, fines accruing after November 13, be remitted; and (4) it is appropriate to enter final judgment in this case for the fines that aceraod during the period July 13 November 13, 1992.
IV.
Entry of Final Judgment For the reasons set forth above, I deny the pending motions of both petitioner and respondent, and I order final judgment in this case in favor of petitioner in the amount of representing the amount of the accrued coercive fines
$115,000.00, f or the period of July 13, 1992 to November 13, 1992, inclusive.
All remaining claims will be dismissed.
order For the foregoing reasons it is hereby ORDERED:
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Petitioner's Motion For Entry of Partial Judgment (1)
Regarding Tines For Contempt (Docket No. 43) is DENIED:
(2)
Respondent's Motion to Dismiss (Docket No. 46) is DENIED; and (3)
The Clark is directed forthwith to enter Final Judgment in this case as follows:
Respondent Stephen B. Conley is ordered to pay to the
- Clerk, United States District
- Court, District of Massachusetts, because of contumacious conduct through November 13, 1992, the sum of $115,000.00, with interest thereon as provided by law.
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A, United States Distr:;ct Judge e.
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UNITED STATES OF AMERICA,
)
Petitioner
)
)
v.
)
CIVIL ACTION
)
NO. 91-11556-K STEPHEN B.
- COMLEY,
)
Respondent
)
)
i Final Judgment May 24, 1993 1.
Respondent Stephan B. Conley is ordered to pay to the clerk, United States District Court, District of Massachusetts, because of contumacious conduct through November 13, 1992, the sum of $115,000.00, with postjudgment interest thereon at the federal postjudgment interest rate of 3.25% por annum.
2.
All other claims, counter-claims, and cross-claims are dismissed.
Approved:
By the Court:
MM 1 United States District Judge J nne M. Cd11, Deputy Clark l - -}}