ML20046B216
| ML20046B216 | |
| Person / Time | |
|---|---|
| Issue date: | 07/16/1993 |
| From: | Cordes J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| References | |
| SECY-93-196, NUDOCS 9308030318 | |
| Download: ML20046B216 (30) | |
Text
.
pm RECgj 4
ih E* -
S 5-
'E gE"
%b ADJUDICATORY ISSUE July 16, 1993 SECY-93-195 FOR:
The Commission FROM:
John F.
Cordes, Jr.
Solicitor
SUBJECT:
LITIGATION REPORT AS OF July 15, 1993 PURPOSE:
To inform the Commission of the Status of Litigation DISCUSSION:
Attached is an update on NRC litigation.
The status report reflects the status of our litigation as of July 15, 1993.
During the December 31, 1992 through July 15, 1993 reporting period, the Commission or its officials were sued eight times in the court of appeals,
1 2Advanced Medical Systems, Inc. v. United States, No. 93-3602 (6th Cir.); Combustion Encineerino, Inc. v. NRC, No. 93-1094 (D.C. Cir.); Dow v.
NRC, No. 93-4267 (5th Cir.) Kellev v.
- Selin, No. 93-1646 (6th Cir. ) ; Kellev v. Selin, No. 93-3613 (6th Cir.) ;
Kellev v. Selin, No. 93-(6th Cir.); Nuclear Information and Resource Service v.
NRE, No. 93-1164 (D.C. Cir.); Orr v.
NRC, No.
93-1263 (D.C. Cir.).
NOTE:
TO BE MALE PUBLICLY AVAILABLE IN 10 WORKING DAYS FROM THE DATE OF THIS PAPER f
, e c.
6,)
9308030318 930716 PDR SECY g
i f
i The Commission 2
I six times in the district courtz, and three times in the state courts.'
The NRC filed one suit in the court of appeals.'
Durin twenty-two cases were closed.g this same period J
[
Cordes, Jr.
licitor
Attachment:
Litigation Report 2Datta v.
Selin, No. H93-1418 (D. Md.); DeLoatch v.
- Selin, No. 93-0163 (D.D.C.); International Brotherhood of Electrical Horkp_rs v.
Southern Nuclear Ooeratina Co., Civ. No. 93-A-397-S (M.D. Aic.); Kellev v.
Selin, No. 4:93-CV-67 (W.D. Mich.);
Oncoloov Services Coro.
v.
NRC, No 93-0939 (W.D. Pa.); State of Nevada v.
O'Learv, Civ. No. 93-399-ECR (D. Nev.).
3Graham v.
NRC, No. 106859 (Mont. Cty. Cir. Ct.); Local Union-1515. IBEW v. Commonwealth Edison Co., No. 93-CH-00794 (Cir. Ct.
of Cook Cty., Ill. ) ; Youna v.
NRC, No. 106860 (Mont. Cty. Cir.
Ct.).
'NRC v.
FLRA, No. 93-1704 (4th Cir.).
SAllied-Sicnal. Inc. v. NRC, No. 91-1407 (D.C. Cir.);
Allied-Sicnal, Inc. v. NRC, No. 92-1019 (D.C. Cir.);
Allied-Sicnal. Inc. v. NRC, No. 92-1374 (D.C. Cir.); American Public Power Association v. NRC, No. 92-1061 (D.C. Cir.); Burton v.
NRC, No. 4:CV92-3217 (D. Neb.); Combustion Enoineerina. Inc.
- v. NRC, No. 91-1435 (D.C. Cir. ) ; Combustion Encineerino. Inc. v.
HEC, No. 92-1390 (D.C. Cir.); Combustion Encineerina. Inc. v.
HEE, No. 93-1094 (D.C. Cir.); Combustion Enaineerina. Inc. v.
EEC, No. 92-1001 (D.C. Cir. ) ; Cowper v.
Harrinaton, A-87-468-CIV (D. Alaska); Critical Mass Enercy Proiect v. NRC, No. 90-5120 (D.C. Cir.); Dow d\\b\\a Discosable Workers of Comanche Peak Steam Electric Station v. NRC, No. 92-1348 (D.C. Cir.); Dow d\\b\\a\\
Discosable Workers of Comanche Peak Steam Electric Station v.
HEC, No. 92-1376 (D.C. Cir.); Dow v. NRC, No. 92-8045 (D.C.
Cir.); Dow v. NRC, No. 92-8046 (D.C. Cir. ) ; Dow v. NEC, No. 93-4267 (D.C. Cir.); International Brotherhood of Electrical Workers v.
Southern Nuclear Operatino Co..
Inc., Civ. No. CV 93-T-397-S (M.D. Al.); Kelly v.
Stello, No. C-91-464 (S.D. Tex. ) ; Local Union 1515, IBEW v. Commonwealth Edison Co.,
No. 93 CH 00794 1
(Cir. Ct. of Cook Cty., Ill.); Revtblatt v.
United States, No.
86C385 (N.D. Ill.) ; Revtblatt v. NRC, No. 92-1029 (7th Cir. ) ;
Wamoler v. NRC, No. 91-2190 (6th.Cir.).
4 J
_ = _.___
i i
r
.i i
i I
i i
i i
i ATTACHMENT -
Litigation Report
____g
1 LITIGATION STATUS REPORT
}
As of July 15, 1993 i
Advanced Medical Systems. Inc. v. United States, No. 93-3602 (6th i
Cir.)
CONTACT : Carole Kagan 504-1620 i
This petition for review, filed June 3, 1993, 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 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 l
petitioners to file their brief in mid-July and the NRC to file its brief in mid-August.
We have filed a motion seeking dismissal of of petitioners' suit as untimely, as it was filed t
more than sixty days after the Commission decision.
l Atlas Coro. v. United States of America & NRC, No. 92-1561 (D.C.
Cir.)
CONTACT : L. Michael Rafky 504-1974 i
This petition for review attacks an NRC decision refusing to give petitioner relief from a $100,000 annual fee for FY 1991.
Petitioner owns a defunct uranium milling operation.
In 1991, however, petitioner held a license that permitted operation of the milling facility.
While the petitioner argues that the i
facility was defunct at that time, and was undergoing
' decommissioning, petitioner did not seek a possession-only license until FY 1992.
Once petitioner obtained a POL, the NRC assessed no further annual charges but has insisted on payment of l
the $100,000 fee for FY 1991.
Petitioner challenged the NRC decision in court.
l
- Those cases considered to be most significant to the agency are marked with an asterisk.
~
LITREP 2
July 15, 1993 After considerable discussion, and pursuant to the D.C.
Circuit's
" alternate dispute resolution" program, the NRC and petitioner have reached a compromise settlement that is now being e
implemented.
The lawsuit will be withdrawn in the near future.
- City of Cleveland v. NRC, No. 92-1532 (D.C. Cir., filed October 9,
1992)
CONTACT:
Marjorie Nordlinger 504-1607 In 1987-88, three utilities, the Ohio Edison Company, the Cleveland Electric Illuminating Company and the Toledo Edison Company, asked the Commission for relief from the antitrust conditions in the Perry and Davis-Besse nuclear plant licenses.
The NRC Staff denied the requests, and the utilities sought administrative hearings.
This petition for review, filed the City of Cleveland, challenges the Commission's August 12 adjudicatory decision (CLI-92-11) holding (1) that section 189(a) of the Atcmic Energy Act grants hearing rights to utilities seeking license amendments; (2) that the Commission possesses regulatory authority to amend antitrust license conditions; and (3) that the dispute properly was referred to the Licensing Board.
The Licensing Board recently decided the case in favor of the City of Cleveland, and the case is now on appeal to the Commission.
)
Petitioner's judicial challenge to the Commission's jurisdictional ruling may well be premature.
On motion by petitioner, the court has held the case in abeyance subject to status reports on a monthly basis.
City of Holvoke Gas & Electric Dept. v. NRC, No. 92-12F7 (D.C.
Cir.)
CONTACT: Marjorie Nordlinger 504-1607 j
Petitioner, a municipal utility in Massachusetts, has filed suit attacking the NRC's recent approval of the transfer of Seabrook's i
license to the Northeast Utilities Service Company.
Petitioner apparently intends to argue that the agency mishandled the antitrust aspects of the transfer.
In petitioner's view, the transfer of Seabrook's license required a fresh antitrust review by the NRC.
After consultation with the Antitrust Division at
LITREP 3
July 15. 1993 the Department of Justice the NRC declined to perform one.
Petitioner sought a court order holding the case in abeyance in light of settlement efforts between petitioner and Northeast Utilities.
The case is currently held in abeyance on petitioner's motion.
Datta v. Selin, No. H93-1418 (D. Md.;
CONTACT : Marvin Itzkowitz 504-1566 This is a civil rights suit, filed May 14, 1993, against the NRC claiming illegal age and race discrimination in a hiring
+
decision.
Please contact OGC if interested in more information.
DeLoatch v. Selin, Civ. No. 93-0163 (D.D.C.)
CONTACT : Marvin Itzkowitz 504-1566 This is a Title VII lawsuit, filed January 26, 1993, alleging race, gender and age discrimination in a promotion decision in l
the NRC's Division of Contracts and Property Management.
Plaintiff's effort to obtain administrative relief proved unsuccessful, and he now seeks a remedy in federal district court in Washington, D.C.
Plaintiff may have filed suit in the wrong court, as discrimination complaints against against the NRC for headquarters activity normally lie in the federal district court for Maryland (in Baltimore).
We will work with the United States Attorney's office both on this procedural problem and on the merits of the case.
i l
')
- In re El Paso Electric Co.,
Case No. 92-10143-FM (Bkrptcy Ct.,
j W.D. Tex.)
CONTACT:
Edwin J.
Reis 504-1578 The El Paso Electric Company, a partial owner of the Palo Verde nuclear power plant, is attempting to reorganize its financial affairs under the protection of Chapter 11 of the Bankruptcy Act.
As part of the bankruptcy proceeding El Paso has tried to
" reject" leases it entered with a bank that led to what El Paso views as onerous payment.
However, under bankruptcy law,
~
LITREP A
July 15. 1993 i
rejection of the leases also amounts to a loss of a right to possession.
On October 16, 1992, the United States, on behalf of the NRC, moved to intervene in the proceeding to protect the NRC's statutory prerogative to approve transfers of operating licenses.
The bankruptcy court has granted the motion to intervene, and has indicated its intent to defer to the NRC's regulatory authority over license transfers.
- Environment and Resources Conservation Orcanization v. NRC, No.
92-70202 (9th Cir.)
CONTACT : Charles Mullins 504-1606 This lawsuit challenges the NRC's issuance of a " possession only" license (" POL") to the owner of the Rancho Seco Nuclear Generating Station in California, the Sacramento Municipal Utilities District ("SMUD").
SMUD ceased operation of the plant in 1939 pursuant to a voter referendum.
Petitioner is a group opposing Rancho Seco's shutdown.
Petitioner argues that the POL is unlawful on a number of grounds, including a NEPA violation.
On April 22 a motions panel of the 9th Circuit denied petitioner's emergency motion for a stay of the POL.
The Court' also refused petitioner's request for expedited review.
On June 30, 1993, the Court dismissed the petition in an unpublished order, citing numerous procedural deficiencies.
Petitioners have 90 days to seek Supreme Court review.
i GAP v.
NRC, C.A. No. 86-1976 (D.D.C.)
Nuclear Awareness Network V,
- NRC, C.A. No. 86-3201 (D.D.C.)
Kansas Gas & Electric v. NRC, C.A. No. 87-2748 ' (D.D. C. )
t CONTACT:
John Cordes 504-1600 On July 18, 1986, the Government Accountability Project sued the i
NRC under the Freedom of Information Act (FOIA).
The suit challenged the agency's withholding of documents related to the Wolf Creek Generating Station.
Later GAP moved to consolidate this case with Nuclear Awareness Network v. NRC, C.A.
No. 86-3201 (D.D.C.), a similar case challenging the agency's withholding of Wolf Creek documents.
All Commission generated documents were processed.
A motion for summary judgment with declarations and a Vauchn Index of those records or portions of records which i
LITREP 5
July 15, 1993 remained withholdable pursuant to Exemptions 5 and 7 of the FOIA were filed.
The Court did not rule on the motion, but it did order the production of a small portion of documents withheld j
from GAP for an 1D camera inspection.
With respect to the utility-generated documents in the agency's possession, DOJ and the agency concluded that KG&E's reliance on Exemption 4 was unfounded and that the documents should be i
released to NAN.
Attorneys for KG&E were advised of this conclusion and on October 9, 1987, KG&E filed a reverse FOIA lawsuit challenging the agency's decision to release j
approximately 2,000 pages of KG&E documents (provided to the agency by a confidential source) to the plaintiffs.
Cross-i motions for summary judgment were filed in 1988.
In June 1993 the district court (Hogan, J) issued two decisions ruling on the pending motions in both cases.
The court ruled almost exclusively in favor of the NRC on all FOIA and " reverse" FOIA issues.
Except for one document, a 1985 OGC memo that in l
the court's view fell outside the " deliberative process" privilege, the court sustained the NRC's FOIA decisions.
Our opponents have sixty days to appeal.
l Graham v.
NRQ, No. 106859 (Mont. Cty. Cir. Ct.)
CONTACT : Karl Farrar 504-1556 This is a pro se Title VII discrimination suit brought by a former NRC employee.
On June 7, 1993 she brought the case in state court rather than, as required, in federal court.
The United States Attorney's office has notified the plaintiff and the state court of this error, and an appropriate motion will be filed if necessary.
l
- Kellev v. Selin, Nos. 93-1646; 93-1710; 93-3613; 93-(6th Cir.)
CONTACT : Peter Crane 504-1600 This lawsuit, now pending before the Sixth Circuit, has a complicated procedural history, reflected in the four separate case numbers listed above.
j I
1 l
l
LITREE 6
July 15, 1993 On May 4, 1993, plaintiffs, the Michigan Attorney General, several private citizens, and the Lake Michigan Federation, filed suit in Federal District Court for the Western District of Michigan asking for an injunction that would prevent Consumers Power Company from using an NRC-approved dry storage cask, the "VSC-24," for storing spent fuel from the Palisades Nuclear Power Plant.
Kellev v.
Selin, No. 4:93-CV-67.
Plaintiffs' central claim was that the NRC had failed to perform a site-specific NEPA analysis of the effects of using the VSC-24 cask at Palisades.
In reply, we argued that NRC had met all its NEPA responsibilities, and that in any case, the actions complained of proceeded from a recently issued rule that added the VSC-24 cask to the list of NRC-approved spent fuel casks.
Since the suit was in effect a challenge to the rule, we said, only the Court of Appeals had jurisdiction over the case.
The district court agreed and at plaintiffs' request, transferred the case to the Sixth Circuit Court of Appeals, where it was docketed as No. 93-1646.
The plaintiffs also appealed to the Sixth Circuit (which docketed the appeal as No. 93-1710) the district court's ruling that it lacked jurisdiction over the case.
Once in the Sixth Circuit, the plaintiffs asked that court for an order halting use of the VSC-24.
After considering the responses of the NRC and Consumers Power, the court of appeals denied the request on May 17, 1993, noting among other things that the plaintiffs had not sought administrative relief from the NRC.
On May 21, therefore, the plaintiffs filed a motion with the NRC's Secretary, asking that the Commission either stay the effectiveness of the new rule or rescind it.
On May 26, the EDO issued a document in which he denied the requested stay, and with regard to the request for rescission of the rule, found the petition incomplete.
He therefore declared that he would hold the matter in abeyance and allow the plaintiffs time in which to supplement their petition.
On June 4, the plaintiffs (now petitioners) filed a petition for review of the rule approving the VSC-24 cask.
This was docketed as No. 93-3613 and consolidated by the court with the other two cases on June 9.
The petitioners in this case included a new party, the citizens' group Don't Waste Michigan.
On June 17, the NRC filed a motion for partial dismissal of the case, pointing out that two of the petitioners (the Michigan Attorney General and the Lake Michigan Federation) had a request for administrative relief pending before the Commission, and that this rendered their petitions for review " incurably premature,"
under established case law.
Consumers Power Company also filed a notion to dismiss.
~
LITREP 2
July 15, 1993 On June 22, the Michigan AG and the Lake Michigan Federation wrote to the EDO, asking to withdraw their motion for rescission.
The EDO granted that request on July 1, and so informed the court.
On July 9, those petitioners filed a new petition for review of the April 7 rule, as a precaution in case their earlier petitions of review were dismissed.
As of July 14, the court had yet to assign a number to the new petition or to consolidate it with the earlier cases.
On July 9, the Court of Appeals, which had earlier granted the petitioners an extension of time until July 23 to file their brief, ordered briefing held in abeyancs pending a determination on the two motions to dismiss.
Lona v. Selin, No. 1:88-CV-263-RCF (N.D. Ga.) (appeal pending)
CONTACT:
J.
Bradley Fewell 504-1569 In 1988, Anne Rebecca Long, a reactor inspector for NRC's Region l
II, filed an action in U.S. District Court against the NRC for purported violations of Title VII cf the 1964 Civil Rights Act, as amended, 42 U.S.C. Section 2000e, et sea., and the Equal Pay Act, 29 U.S.C.
Section 206(d), et sea.
In her complaint she claims that:
(1) when she was hired by the NRC in February 1986, she was not paid a salary equal to that of certain male employees; (2) she was not promoted in a timely manner; and (3) she was subjected to harassment and retaliation by her supervisors.
The NRC has maintained throughout this litigation that plaintiff's claims are unfounded and constitute inappropriate challenges to legitimate exercises of managerial discretion.
In 1990 the Equal Pay Act claim was transferred to the U.S. Claims Court.
The hearing on the Title VII claims began in March 1990, and after further discovery, ended in March 1991.
The magistrate issued a decision in favor of the agency on all counts.
The case then went before the U.S.
District Court judge for final disposition.
The judge ruled that a jury trial and compensatory damages would be available to Ms. Long under the Civil Rights Act of 1991, which the judge ruled to be retroactively applicable to this case.
The NRC petitioned the Eleventh Circuit to grant interlocutory appeal on the retroactivity issue.
The petition was granted.
On August 14, 1992, the U.S. Claims Court dismissed the Equal Pay Act claim, giving plaintiff leave to amend her complaint for the proper jurisdictional amount and transfer it back to U.S.
LITREP R
July 15. 1993 District Court.
Plaintiff has amended her complaint and is-waiting for the District Court to acknowledge acceptance of jurisdiction over the amended complaint.
On May 18, 1993, the Eleventh Circuit granted Ms. Long's motion to vacate the NRC's interlocutory appeal.
Therefore, all claims are now proceeding in district court.
- Macias v. Kerr-McGee Coro., No. 92 C 3389 (N.D. Ill.)
Contact:
Grace H. Kim 504-1634 This is a common law tort suit for damages originally brought in state court against Kerr-McGee and the City of West Chicago.
Plaintiffs allege that thorium-containing materials originating at Kerr-McGee's West chicago site have contaminated their property.
Kerr-McGee brought what it characterizes as a
" counterclaim" against the NRC, the EPA, the Illinois Department of Nuclear Safety, the Illinois EPA, Dupage County, the C.ity of West Chicago, and the various individuals heading those government units, including NRC Chairman Ivan Selin.
Kerr-McGee's " counterclaim" seeks a declaratory judgment that the various government units it names as defendants, including the NRC, have " prevented Kerr-McGee from carrying out its thorium removal program at off-site properties" and that the defendants "are required to permit Kerr-McGee to remove thorium-containing materials from off-site properties and to store the removed materials at the West Chicago facility."
We are working with the department of Justice in defending this The case was removed to federal district court on May 21, case.
1992.
A motion to dismiss for lack of subject matter jurisdiction was filed on June 22, 1992 on behalf of the NRC and the EPA, and a response to Kerr-McGee's opposition was filed on October 9, 1992.
On August 19, 1992, the district court (J.
Norberg) issued an opinion ruling that the case was properly removed.
The court rejected arguments by the plaintiffs and by the State of Illinois that the suit ought to be remanded to the state court.
We are currently awaiting a decision by the federal court on our pending motion to dismiss.
4 LTTREP 1
July 15. 1993
- Nuclear Information and Resource Service v. NRC, No. 93-1164 (D.C. Cir.)
CONTACT : John Cordes 504-1600 Petitioner seeks judicial review of the Commission's revisions of Part 52, issued in December 1992, that were designed to' conform the Commissions regulations to the recently-enacted Energy Policy Act. E23 Fed. Reg. 60975 (Dec. 23, 1992).
Petitioner apparently intends to argue both that the Commission should have followed a notice-and-comment process before issuance of a revised Part 52 and that the revisions misconstrue congressional intent.
No briefing schedule has yet been established.
- NRC v.
FLRA, No. 93-1704 (4th Cir.)
CONTACT : Brad Fewell 504-1569 In April the Federal Labor Relations Authority ruled that the NRC I
must enter labor negotiations over union proposals regulating Inspector General investigatory interviews.
In reaching this result the FLRA overruled a prior precedent insulating IG investigatory practices from labor management negotiations.
At the strong urging of the NRC's Inspector General we recommended to the Department of Justice that a petition for review be filed challenging the FLRA decision.
In early June DOJ filed a petition for review on the NRC's behalf I
in the United States Court of Appeals for the Fourth Circuit.
The Solicitor General of the United States must authorize pursuit of the case.
He currently is considering the matter.
Briefs are due in court later this summer.
- O' Conner v. Commonwealth Edison Co., No. 88-1272 (C.D. Ill.)
CONTACT:
Eric Jakel i
504-1628 This is a private tort suit arising out of alleged radiation injury to a pipe fitter at the Commonwealth Edison nuclear power plant in Cordova, Illinois.
Commonwealth Edison removed the suit from state to federal court pursuant to the Price-Anderson Act (as amended in 1988).
The plaintiff challenged the removal i
provisions of the Price-Anderson Act as an unconstitutional 1
9 LITREP 10 July 15. 1993 expansion of federal court jurisdiction to include state-law tort' claims.
The United States intervened to defend the constitutionality of the Act.
The district court (Mihm, J.) issued a thorough opinion upholding the constitutionality of the Price-Anderson Act removal provision.
The court found that "[n]umerous federal questions will necessarity arise in the course of litigation under this Act, which questions must be resolved consistent with the pervasive federal scheme" (Slip op. at 13).
The court specifically disagreed with In re TMI Coordinated Proceedinas, 735 F. Supp. 640 (M.D. Pa. 1990), which had struck down the Act's removal provisions.
The TMI decision itself later was overturned by the U.S.
Court of Appeals for the Third Circuit.
Plaintiffs appealed the issue of the constitutionality of Price-I Anderson Amendments Act removal provision.
The U.S.
Court of Appeals for the Seventh Circuit heard oral argument on this issue last winter.
As yet, no decision has been rendered by the Court of Appeals.
Oncoloav Services Corp. v. NRC, No 93-0939 (W.D. Pa.)
CONTACT : L. Michael Rafky 504-1974 i
This is a Freedom of Information Act lawsuit, filed June 14, 1993, seeking access to various documents relating to plaintiff and to the NRC's inspection program at medical facilities.
The NRC's FOIA office had not yet finished processing the request when the suit was filed.
Plaintiff takes the view that the FOIA request had been " constructively" denied.
We will work with the United States Attorney's office in Pittsburgh in defending this lawsuit.
i Orr v. NRC, No. 93-1263 (D.C. Cir.)
CONTACT : Charles Mullins i
504-1618 This lawsuit seeks to reinstate petitioners' adjudicatory challenge to the extension of Texas Utilities Electric Company's construction permit for Comanche Peak, Unit 2.
On March 30 the r
commission dismissed petitioners' claims on mootness grounds.
On April 6 the Commission declined to stay or reconsider its
LITREE 11 July 15, 1993 decision.
On the same day the Commission also granted TUEC a full power operating license for Comanche Peak, Unit 2.
Petitioners filed motions seeking (1) summary reversal of the Commission's adjudicatory decisions and (2) a stay of the operating license.
The D.C. Circuit denied both motions.
We are now awaiting a briefing schedule from the Court.
P
- State of Michican v. United States, No. 91-2281 (6th Cir.).
CONTACT:
Susan Fonner 504-1632 Three years ago Michigan brought suit in federal district court against the United States, the NRC and several other agencies.
The suit challenged as unconstitutional the 1985 Low-Level Radioactive Waste Policy Act and also demanded that the NRC prepare a fresh NEPA analysis of the agency's Part 61 regulations on waste disposal.
The Supreme Court resolved the constitutional question in New York v. United States, 112 S.
Ct. 2408 (1992),
where it approved the entire 1985 Act except its "take title" provision.
The district court threw out Michigan's NEPA claims for lack of jurisdiction.
s The United States Court of Appeals for the Sixth Circuit (Ryan, Milburn & Coffin, JJ) affirmed the district court judgment on June 2, 1993.
The court ruled that Michigan's challenge to the NRC's Part 61 regulations on NEPA grounds required Michigan first to ask the agency to change its regulations, followed by judicial review directly in the court of appeals under the exclusive jurisdiction provisions of the Hobbs.Act.
The court also ruled that Michj gan lacked standing "to police the Nuclear Regulatory Commission" by disclaiming an attack on agency regulations and seeking NEPA relief in the abstract.
The court reasoned that, for standing purposes, NEPA reviews "are only significant because of their effect on regulations."
Michigan has ninety days to seek review in the Supreme Court.
State of Nevada v. O'Learv, Civ. No. 93-399-ECR (D. Nev.)
CONTACT : Marjorie S. Nordlinger 504-1616 On June 14, 1993 Nevada brought this suit against the Department of Energy, the NRC and the EPA, as well as the heads of those agencies.
Nevada seeks court authorization for depositions of
i j
LITREP 12 July 15. 1993 various scientists involved in a controversy over " episodic recurrence of flooding" at the proposed Yucca Mountain high-level nuclear waste repository.
Nevada seeks to " perpetuate" the scientists' testimony for possible use in federal court proceedings the state may bring years from now to challenge some aspect of the Yucca Mountain site.
Federal Rule of Civil Procedure 27 permits lawsuits to perpetuate testimony in some circumstances.
We will cooperate with the Department of Justice and other defendant agencies in responding to this suit.
United States v. Comlev, M.B.D. No. 91-11556K (D. Mass.)
CONTACT:
Carole Kagan 504-1634 This lawsuit is the latest development in the long running NRC effort to obtain audio tape recordings in the possession of Stephen B.
Comley.
Mr. Conley allegedly taped telephone conversations between himself and Roger A.
Fortuna, the Deputy Director of the NRC's Office of Investigations.
The district court ruled in November 1990 that the original Commission subpoena no longer retained validity because the Inspector General, who has his own independent subpoena authority, had taken over responsibility for the Fortuna/Comley investigation.
Subsequently, after abortive efforts to settle the matter, the Inspector General issued his own subpoena for the tapes.
Mr.
Comley refused to comply.
In April 1991 the United States Attorney in Boston filed suit to enforce the IG subpoena.
In October the district court issued an order enforcing the subpoena.
Mr. Comley failed to comply and appealed the district court's order to the First Circuit.
On August 31, 1992 the First Circuit issued a brief par curiam opinion affirming the district court judgment enforcing the IG subpoena.
The court of appeals rejected Mr. Comley's arguments that the NRC IG lacks the authority to issue subpoenas in support of investigations into employee misconduct and that the IG subpoena here was part of an effort to supress Mr. Comley's First i
Amendment rights of free speech and association.
Meanwhile, in July 1992 during the pendency of the appeal, the district judge (Keeton, J.) held Mr. Comley in contempt, and ordered him to pay fines of $200 a day for the first five days of non-compliance, $500 a day for the next ten days, and $1000 per day thereafter.
Mr. Conley neither complied nor paid the fines.
LITREP 12 July 15. 1993 The district judge took no further action.
We have filed a
. motion for a hearing to consider further sanctions.
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 are currently consulting with the United States Attorney's office in Boston and with the NRC's Inspector General on the appeel question.
i United States v. Pesses, Civ. Action No. 90-0654 (W.D. Pa.)
CONTACT:
Carole Kagan 504-1634 The government brought this lawsuit under CERCLA against numerous defendants to recover costs incurred in cleaning up the contaminated Metcoa Radiation Site in Pulaski, Pennsylvania.
A few of the defendants filed a counterclaim against the government claiming that the government itself is liable for the cleanup as a " responsible party."
Among other government agencies, the NRC is named, on the ground that it improperly licensed the site.
The U.S. Magistrate, to whom this case was assigned for deciding preliminary motions, ruled (among other things) that the government can be held liable under CERCLA for failures in its regulatory mission.
The government does not agree with this reading of the law and has appealed the Magistrate's decision to the district judge.
Youna v. NRC, No. 106860 (Mont. Cty. Cir. Ct.)
CONTACT : Brad Fewell 504-1569 This is a pro se Title VII discrimination suit filed by a former NRC employee on June 7, 1993.
Ms. Young brought her case in state court rather than, as required, in federal court.
The United States Attorney's office has notified the plaintiff and the state court of this error, and an appropriate motion will be j
filed if necessary.
l
.1
~
i
~
1 11 I
INACTIVE CASES i
Advanced Medical Systems. Inc.
v.
NRC, No. 88-2924 (D.D.C.)
CONTACT:
Carole Kagan 504-1634 On October 11, 1988, Advanced Medical Systems, Inc. ("AMS"), and its president, Dr. Seymour Stein, filed suit against the agency and twenty-six present and former NRC employees in the United States District Court for the District of Columbia.
Plaintiffs ask for approximately twelve million dollars in damages for the actions of the agency and the named agency employees who are being sued in their individual capacity.
The claims relate to the October 1985 suspension of AMS's license to service cobalt teletherapy equipment and to a July 1987 order requiring AMS to decontaminate certain of its facilities in Geneva, Ohio.
Plaintiffs allege various legal claims against the agency and individual employees, including abuse of process, malicious prosecution, deprivation of property and liberty without due process of law, discrimination on the basis of age and religion, i
and violations of the federal constitution and the Civil Rights Act, 42 U.S.C. Sections 1983 and 1985.
The suit also claims damages for these actions under the Federal Tort Claim Act 1
("FTCA").
i i
On March 8, 1989, in conjunction with the U.S. Attorney's Office, we filed a motion to dismiss on several Rule 12 grounds, including lack of personal jurisdiction, venue, qualified immunity, lack of exhauction and several others.
That motion was granted and the case was dismissed "as conceded" and on the entire record by Judge Penn on March 29, 1989 because AMS failed to file a timely response.
In April 1989, plaintiffs moved for i
reconsideration.
That motion remains pending before Judge Penn.
County of Suffolk and Town of Southamotom v. NRC, No. 89-1184 (D.C. Cir.)
State of New York and Gov. Mario Cuomo v. NRC, No. 89-1185 (D.C.
Cir.)
CONTACT:
Charles Mullins 504-1606 On March 6, 1989, two petitions for review of the Commission's dismissing the Governmental intervenors from the Shoreham proceeding were filed in the U.S. Court of Appeals for the District of Columbia Circuit.
One petition was filed be New York State and Governor Mario Cuomo; the other was submitted by
LITREP 15 July 15, 1993 Suffolk County and the Town of Southampton.
As is usual with petitions for review of agency decisions, the petition did not indicate what arguments would be advanced.
The two petitions were subsequently consolidated, and LILCO was admitted as a party to the case.
A Suffolk County motion to declare the case moot and to vacate the underlying Commission decision was denied by the D.C. Circuit in December 1989.
The Court set an initial briefing schedule, but later held the case in abeyance at the request of all parties, pending possible mootness and/or settlement negotiations.
With the settlement of the Shoreham i
adjudications, this case may be moot.
We are now pursuing dismissal of this case, but the parties have not yet agreed to terms of dismissal.
i Homestake Minina Co. v.
NRC, No. 92-2057 (D. Colo., filed Oct.
15, 1992)
CONTACT:
John F. Cerdes 504-1600 Plaintiff in this lawsuit seeks monetary relief against the NRC under the comprehensive Environmental Response, Compensation and Liability Act (CERCLA).
Plaintiff owns a uranium milling facility in New Mexico.
Plaintiff says that the old AEC's efforts "to develop a domestic uranium procurement program" led to contamination at the site.
Plaintiff has sued the NRC as a successor to the AEC.
Because plaintiff hopes to obtain financial support for its clean-up activities under the energy legislation enacted this past fall, plaintiff has indicated to us that it may not pursue this suit.
It currently is being held in abeyance.
It is highly doubtful, in any event, that plaintiff has any valid claim against the NRC.
Kerr-McGee Chemical Corp. v. NRC, No. 90-1534 (D.C. Cir.)
CONTACT:
Grace Kim 504-1634 This lawsuit challenges the Commission's decision to amend the existing agreement between the NRC and the State of Illinois to permit Illinois to assume regulatory jurisdiction over uranium and thorium mill tailings.
Petitioner is the owner of a contaminated site in the City of West Chicago that now falls within the State's jurisdiction under the new agreement.
I m
~
LITREP 16 July 15, 1993 After petitioner filed its brief in the court of appeals, and while we were preparing ours, we learned that petitioner and the State were engaged in settlement negotiations on the disposition of the contaminated West Chicago site.
On June 5, 1991, the Court of Appeals granted the parties' joint motion to hold the proceedings in abeyance to allow settlement negotiations to proceed.
The petitioner and the State are still engaged in settlement negotiations, and the proceeding continues to be held in abeyance.
Merklin v.
U.S., No. 85-5079 (3d Cir.)
CONTACT:
Pamela Urban 504-1600 This Federal Tort Claims Act suit was brought against the government by a foreman who sustained cancer injuries allegedly contracted from working in a plant that processed radioactive monazite ore.
The Atomic Energy Commission supplied the ore and retained the title to the products, although the plant was owned and operated by a private organization.
The district court granted our motion for summary judgment, but the court of appeals reversed on the grounds that the AEC, as the ultimate supplier of a non-obviously dangerous chattel, "had" a duty under state law to warn employees of the ore's hazardous propensities.
The court of appeals remanded the case to the district court to determine whether Merklin had been aware of the risks associated with handling monazite so as to absolve, upon a finding of such awareness, the AEC of any duty to warn.
Plaintiff is pursuing an action in the state court versus the private contractors, and the federal action is being held in abeyance until the resolution of the state action.
Shannon v. NRC, No. 89-0872-Y (D. Mass.)
CONTACT:
Carole Kagan 504-1634 The Massachusetts Attorney General's Office has sued the NRC for not responding to a FOIA appeal for certain documents concerning the Pilgrim restart.
The documents under appeal, which were withheld under Exemption 5 of the FOIA, are also subject to a subpoena issued in the Public Utility Commission's rate proceeding on Pilgrim.
Only a few documents remain at issue.
4 LITREP 11 July 15. 1993 We are working with the U.S. Attorney's Office in Boston to resolve the case.
Our answer was filed on May 22, 1989.
A response to the administrative appeal, releasing some documents and denying release of others, was sent by the FOIA branch.
The Massachusetts Attorney General's office and the U.S. filed a motion to dismiss the case without prejudice.
To our knowledge, the court has not yet acted on that motion.
US Ecoloav. Inc. v. Northwest Interstate Compact on Low-Level i
Radioactive Waste Manaaement, Civ. No. C92-5091B (W.D. Wash.)
CONTACT : Sdsan Fonner 504-1632 US Ecology brought suit against a number of defendants, including the NRC and the Chairman (in his official capacity), in federal district court in Tacoma, Washington.
US Ecology operates a low-level radioactive waste disposal facility located at Richland, Washington, on the Hanford Federal Reservation.
US Ecology's 36 page complaint alleges that the Northwest Interstate Compact on Low-Level Radioactive Waste Management, various state officials and the NRC have illegally failed to take action to prevent a competitor of US Ecology, Envirocare, from accepting low-level radioactive waste at a site in Utah.
At the request of the U.S. Attorney, we agreed to handle the case for the Government.
We filed a motion to dismiss the case on the ground that the r
district court lacks jurisdiction to consider those claims. We also argued that the claims should be dismissed because the plaintiff failed to exhaust adninistrative remedies by not first petitioning the NRC for relief.
Oral argument on the motion was heard on July 2, 1992.
After hearing oral argument, the district court, (J. Bryan) dismissed US Ecology's claim against the NRC for failure to exhaust.
The court did not reach the exclusive jurisdiction issue.
Subsequently, U.S.
Ecology submitted a petition to the NRC requesting review and revocation of Utah's agreement state program based on Utah's failure to require state or federal ownership of the Envirocare site.
The petition has not yet been resolved.
i i
t E
f
LITREP 18 July 15, 1993 l
l USR Industries. Inc. v.
U.S.A.
and NRC, Nos. 89-1863 and 90-1407 (D.C. Cir.)
CONTACT:
Charles Mullins 504-1606 USR Industries and four associated corporations have petitioned the D.C. Circuit for review of an immediately effective order issued by the NRC staff on August 21, 1989.
The order directed these corporations to establish an escrow account to initiate characterization and decontamination activities at the Safety Light, Inc. facility at Bloomsburg, Pa.
The Staff has asserted jurisdiction over USR because the USR corporations were split off from Safety Light evidently in an effort to separate the corporation's assets from its liabilities, and to prevent them from being required for clean-up activities.
In ALAB-931, the Appeal Board affirmed a Licensing Board Order finding that the Staff has jurisdiction over some of the companies, and remanded the case for further proceedings.
The Commission did not take i
review of ALAB-931 and the USR group has filed a challenge to that decision as well.
The Court of Appeals has held both federal court proceedings in abeyance during the administrative proceedings.
l I
19 CLOSED LITIGATION
- Allied-Sional. Inc.
v.
NRC, Nos. 91-1407, 91-1435, 92-1001 and 92-1019 (D.C. Cir.)
CONTACT:
L. Michael Rafky 504-1606 These consolidated lawsuits challenged the NRC's annual fee rule for fiscal year 1991.
FY 1991 was the first year that the NRC was required by statute to collect 100% of its budget from its licensees through annual fees and users fees.
See 1990 Omnibus Reconciliation Act, 42 U.S.C.
2214.
The Court of Appeals (Williams, Silberman & D.
Ginsburg, JJ) issued a decision upholding the rule in part, remanding aspects of the rule for reconsideration and requiring the agency to grant an exemption to one of the petitioners.
In several respects the Court's decision is helpful to the NRC.
First, the Court found no Congressional directive that the NRC must spare from annual fees those licensees who cannot " pass through" NRC fees to customers.
Second, the Court approved the NRC's generic approach to fee-setting, finding unworkable petitioners' argument that the agency should adjust eac2 licensee's annual fee according to the amount of regulatory attention it receives.
Finally, the Court upheld the NRC's
" equal fee per license" approach to allocating fees amor.g licensees in each category (power reactors, fuel fabricators, uranium mills, etc.).
The Court remanded the case to the NRC to reconsider two questions:
(1) whether the agency inequitably exempted colleges and universities from fees because of an inability to " pass through" costs while declining to give the same treatment to private businesses; and (2) whether the agency unreasonably apportioned fees for low-level waste without regard to the actual waste generated by each licensee.
The Court pointedly declined to vacate the annual fee rule on these grounds, but left to the NRC the responsibility either to change its rule appropriately or to reaffirm it on the basis of a fresh set of reasons.
Lastly, the Court ordered repayment of annual fees assesed against Combustion Engineering for one of its two licenses.
The Court accepted Combustion Engineering's argument that its special situation -- it ma.ntains two licenses for one uranium enrichment process -- entitled it to an exemption under the NRC's " fairness and equity" standard for exemptions.
Granting exemptions to CE
e LiTREP 22 July 15, 1993 r
for FY 1991 and 1992 will result in refunds totalling more than one million dollars.
.The NRC chose not to seek further review, and has complied with I
the Court's instruction to refund a portion of Combustion Engineering's FY 1991 and 1992 annual fees.
The Commission also reconsidered the remanded issues of cost passthrough and low-level waste cost allocation per the Court's opinion in the proposed and final FY 1993 fee rules.
t Allied-Sianal. Inc. v.
NRC, No. 92-1374, 92-1390 and 93-1094 (D.C. Cir.)
CONTACT:
L. Michael Rafky 504-1606 These are follow-up cases to the Allied-Sianal annual fee case above.
They were held in abeyance pending that decision.
Pursuant to our request, the Court of Appeals disposed of the FY 1992 cases in the same way as it disposed of the FY 1991 cases.
Thus, it issued an order remanding the FY 1992 cases to the NRC to consider whether licensees' inability to pass through costs justifies special annual fee treatment and whether the NRC's method for apportioning low-level radioactive waste disposal costs was reasonable.
The Court also ordered the Commission to grant an exemption to Combustion Engineering for fees attributable to " double-licensing" its facilities.
The Court denied the petitions for review "as to any remaining claims."
We had already taken account of this anticipated ruling.
The NRC has arranged for payment of CE's 1991 and 1992 exemption claims.
The agency is also considering the FY 1991 and FY 1992 remand issues in connection with its 1993 annual fee rule for FY 1993.
- American Public Power Association v. NRC, No. 92-1061 (D.C.
Cir.)
i CONTACT:
Grace Kim 504-1607 Petitioners challenged the NRC's License Renewal Rule insofar as it does not require antitrust' review at license renewal.
Petitioners argued that the " plain meaning" of section 105(c) of the Atomic Energy Act -- providing for antitrust review of
[
license " applications" -- calls for antitrust review of license renewal applications.
On April 13 the Court of Appeals I
a
~w-
LITREP 21 July 15, 1993 (Silberman, D. Ginsburg & Williams, JJ) issued an opinion rejecting petitioners' position.
The Court found that the statutory language was not "all that clear" (Slip op, at 7).
In the license renewal rulemaking the NRC had relied heavily on legislative history that appeared to rule out antitrust review in license renewal proceedings.
The Court ruled that the legislative history was not itself i
" dispositive," but concluded that the Commission's statutory construction nonetheless was " permissible," in view of "the imprecision in the statutory language and the Commission'~s plausible reliance" on the legislative history (Slip op. at 7-8).
The Court also rejected petitioner's complex statutory argumentthat at least commercial nuclear plants licensed under section 104b ("research and development"' reactors) ought to be subject to antitrust review at license renewal.
The Court accepted our argument that the Atomic Energy Act contains a i
" grandfather clause" (section 102(b)) effectively immunizing section 104b plants from antitrust re tew absent unusual circumstances. Ege Slip op. at 8-9.
Finally, the Court rejected petitioners' " policy arguments" as a ground for upsetting the NRC's approach.
The Court stated that it " suppose [d] the NRC could have accepted petitioners' arguments and determined to conduct antitrust review as a matter of discretion, but we cannot say that the commission's construction of the. statute is unreasonable" (Slip op. at 9).
i
- Durton v. NRC, No. 4:CV92-3217 (D. Neb.)
CONTACT : Susan
'r s
504-16.
l This lawsuit challenged NRC regulations on low-level radioactive waste issued some years ago.
Plaintiffs raised constitutional and statutory objections to the regulations.
They argued principally the NRC rules failed to cddress an adequate range of disposal options.
The NRC sought summary judgment both on jurisdictional and merits grounds.
On February 24 the d1 strict court (Warren K. Urbom, J.)
I issued a decision dismissing the lawsuit in its entirety.
The
{
court held that most of the plaintiffs' claims, while styled
" constitutional," actually were garden-variety arguments that NRC regulations were inconsistent with various statutory provisions, and therefore could not be pursued in the district court.
The i
proper means for attaMeing an NRC regulation, held the court, was " appropriate administ stive procedures," presumably followed
)
by review in the courv I appeals.
i
)
LITREP 11 July 15, 1993 The court did find that one of plaintiffs arguments -- the contention that an NRC regulation improperly requires either state or federal ownership of land where low-level waste is disposed -- legitimately did arise under the Constitution, but could not be pursued here because of a lack of standing to sue.
The court explained that plaintiffs had failed to demonstrate how they "are injured by this land ownership requirement."
Cowper v.
Harrinaton, A-87-468-CIV (D. Alaska)
CONTACT:
Charles Mullins 504-1606 This litigation was brought in 1987 to force the government to issue and EIS for plutonium shipments by air through Alaska.
Named as defendants are the Secretaries of Energy, State, Transportation, the Chairman of the NRC and the President.
Plaintiff Cowper is the Governor of Alaska and the Alaska Attorney General's office is directing the lawsuit.
The City of Anchorage has moved to intervene as a plaintiff.
The United States has reached agreements with Japan and Euratom to allow Japan to send shipments.of spent fuel (derived from United States proc e ssed fuel) to Euratom for reprocessing.
After reprocessing, Euratom will ship the reprocessed fuel back to Japan, presumably by air and presumably by polar route to avoid flying over inhabited areas.
Due to the weight of the project cargo, the plane will need a refueling stop.
Canada has refused landing rights to such shipments; thus. Alaska is left as the only practical refueling alternative.
The federal government has not prepared an EIS to examine the environmental consequences of this action.
The lawsuit seeks to enjoin the process until such an EIS is filed.
1 Initially, the lawsuit sought a preliminary injunction to prevent the President from signing the agreements and presenting them to Congress.
DOJ asked the NRC for an affidavit or declaration on the licensing process for casks or containers and the status of our regulations and how they will be applied.
NMSS provided such a declaration.
Subsequently, the plaintiff agreed to withdraw the request for preliminary injunction and to file an amended complaint.
The plaintiff has withdrawn the case.
l Il j
- Critical Mass Enerav Proiect v. NRC, No. 90-5120 (D.C. Cir.)
CONTACT:
John F. Cordes 504-1600 This is a long-running Freedom of Information Act lawsuit seeking i
access to confidential "SEE IN" documents prepared by INPO and i
shared with the NRC.
To protect the documents from disclosure the NRC has invoked FOIA exemption 4 (protecting confidential commercial information received from private parties).
In April 1991 a panel of the court of appeals found the record insufficient to conclude that release of the SEE-IN documents would impede the NRC's ability to obtain full information.
The panel remanded the case for further factfinding.
On September 6, however, the full court of appeals vacated the panel decision and granted rehearing en banc.
In reaching this conclusion the en banc court limited the reach of a longstanding D.C.
Circuit precedent, National Parks and Conversation Ass'n v. Morton, 498 F.2d 765 (D.C. Cir. 1974),
where the court had required government agencies invoking Exemption 4 to demonstrate how disclosure would harm a government interest.
The present case stops short of overruling National Parks outright, because of the doctrine of stare decisis, but limits the National Parks test to situations where (as in National Parks itself) the government has obtained information by compulsory process (e.a., by subpoena or regulatory requirement).
The dissenters (R._Ginsbura, J. Mikva, C. Wald & J.J. Edwards) would continue to follow National Parks in all cases.
In their view "[t]he National Parks formulation fits the congressinnal design better than the virtual abandonnent of federal court scrutiny approved by the court today for Governmer.t withhoAding of commercial or financial materials submitted voluntarily" (Dissent, at 8).
In March 1993 the Supreme Court denied plaintiff's petition for a writ of certiorari, bringing this legnthy litigation to a close.
Dow d/b/a Disposable Workers of Comanche Peak Steam Electric Station v.
NRC, No. 92-1348 (D.C. Cir.)
CONTACT: Charles Mullins 504-1606 In No. 92-1348, the Dows challenged the renewal of the Comanche Peak Unit 2 construction permit and sought to file their petition in forma cauperis, alleging that they had no means to pay the necessary court fees.
On August 2 8, 1992, the court denied the Dows' petition for temporary or preliminary injunctive relief.
4 l
L LITREP 24 July 15, 1993 TU Electric has Jiled a motion to dismiss, which was supported the NRC.
The coe't issued a show cause order to which the Dows responded.
The Court dismissed the Dows' filing because they failed to demonstrate their forma Daunerls status.
This order had the effect of dismissing the entire petition.
Dow d/b/a Disposable Workers, etc.
v.
NRC, No. 92-1376 (D.C.
Cir.)
i CONTACT: Charles Mullins 504-1606 The petitioners, who have filed several previous lawsuits (all unsuccessful) challenging tlw licensing of the Comanche Peak nuclear power plant, attempted late intervention and reopening in 1
three long closed Comanche Peak proceedings.
In August the Commission denied petitioners' request under its Part 2 l
standards.
Petitioners sought judicial review.
A motions panel of the D.C. Circuit (Mikva, CJ, Williams & Sentelle, JJ) l summarily affirmed the Commission's denial of the late intervention.
The Court concluded that "[t]he merits of the parties' positions are so clear as to warrant summary action."
j Dow v. NEQ, Nos. 92-8045 & 92-8046 (D.C. Cir.)
CONTACT:
Charles Mullins 504-1606 On December 29, 1992 petitioners filed two more lawsuits seeking judicial review of NRC decisions on the Comanche Peak nuclear power plant.
No. 92-8045 attacked the NRC Staff's November 19 denial of a section 2.206 petition demanding revocation of the Comanche Peak license.
No. 92-8046 attacked a December 15 Licensing Board decision rejecting petitioners' request for a hearing on the amendment of Comanche Peak's construction permit for Unit 2.
The Dows filed a motion to withdraw No. 92-8046, which was granted.
The Court dismissed the other lawsuit, No.
92-8045, by denying the Dows' request to file in forma Dauperis.
Dow v. NRC, No. 93-4267 (5th Cir.)
CONTACT : Charles Mullins 504-1606 This was another lawsuit filed by R. Mickey Dow to derail i
nuclear power operations at Comanche Peak.
The suit principally 3
l 1
i r
LITREP 21 July 25, 1993 1
complained of allegedly unfair proceedings leading up to comanche Peak's licensing.
Like Mr. Dow's several previous suits, raising i
essentially the same point, this suit proved unsuccessful.
The Court dismissed it upon filing, without even requesting a l
response by the government.
International Brotherhood of Electrical Workers v. Southern Nuclear Operatina Co.,
Inc., Civ. No. CV 93T-397-S (M.D. Al.)
CONTACT : Marjorie S. Nordlinger 504-1616 This suit by a labor union attacked an alleged NRC requirement that nuclear power plant workers report to their employers all arrests of whatever nature.
In actuality there is no such NRC i
requirement.
While we were researching a planned motion to dismiss this suit, the union withdrew it on May 4,
- 1993, apparently after obtaining clarification on the arrest question i
from the local utility.
Kelly v. Stello, No. C-91-464 (S.D. Tex.)
CONTACT:
Susan Uttal 504-1582 Plaintiff in this lawsuit seeks money damages against several current and former NRC officials for alleged unconstitutional and tortious misconduct.
Mr. Kelly's complaint does not name the NRC as a defendant.
The district court (Samuel B. Kent, J.)
dismissed the suit in its entirety, with prejudice, and held that plaintiff's cause of action had accrued in 1987 and that plaintiff's suit -- which was not filed until 1991 -- therefore was outside the applicable 2-year statute of limitations.
The court concluded its decision with an unusual order prohibiting the parties from filing further district court pleadings and stating that "[a]ny further. relief shall be sought from the U.S. Court of Appeals for the Fifth Circuit."
Plaintiff did file an appeal.
In an unpublished opinion, the Fifth Circuit affirmed the district court judgment, agreeing that the applicable Texas statute of limitations had expired prior to the filing of the plaintiff's suit.
The time for certiorari has passed.
I i
LITREP 16 July 15, 1993 Local Union 1515. IBEW v. Commonwealth Edison Co.,
No. 93 CH 00794 (Cir. Ct. of Cook Cty., Ill.)
CONTACT : Carole Kagan 504-1620 Plaintiff in this case is a labor union that seeks a state court order enforcing a subpoena for the testimony of six NRC employees at an arbitration proceeding.
Two months ago, acting pursuant to the NRC's Touhv regulations, the NRC's General Counsel had issued a letter declining to permit the testimony.
The General Counsel reasoned that there was no health and safety justification for the testimony, nor was there any showing that testinony by NRC employees was the sole means to elicit material factual information.
Plaintiffs agreed to dismiss the case in return for answers to written questions.
The answers were provided by Region III and the case was dismissed.
Revtblatt v. United States, No. 86C385 (N.D. Ill.)
CONTACT:
Charles Mullins i
504-1606 On January 17, 1986, this suit was filed against the NRC and a i
staff member, Gunter Arndt.
The cause of action is an alleged interference with contract and mishandling of proprietary l
information.
The government moved to dismiss because Dr. Reytblatt failed to file his pretrial order and the Federal District Court granted the motion, dismissing the case.
Dr. Reytblatt appealed to the 1
Seventh Circuit.
l l
1 Revtblatt v.
NRC, No. 92-1029 (7th Cir.)
CONTACT : Charles Mullins 504-1606
)
This was a Federal Torts Claim Act suit against the government based on an allegation that the NRC had misappropriated plaintiff's " Integrated Leak Rate Testing Methodology."
Dr.
Reytblatt has a formula concerning containment leak rate testing he is determined to sell.
He asserted the NRC interfered with this effort.
The United States filed motions to dismiss and to substitute parties.
The Court refused to dismiss the case at
O
.. g a
LITREP ZZ July 15, 1993 this stage, but it did substitute the United States as the proper defendant.
After legnthy displays in discovery caused by plaintiff, and after plaintiff's failure to comply with the Court's command to submit a pre-trial order, the district court dismissed plaintiff's lawsuit with prejudice for failure to prosecute.
On March 10, 1993 the Court of Appeals (Cudahy, Cummings &
Mannion, JJ) issued a 4-page Der curiam order affirming the district court judgment.
The Court of Appeals pointed to
" plaintiff's repeated disregard for court orders and related contumacious conduct," and commented that "[a] trial court is entitled to say, under proper circumstances, that enough is enough..." (Order at 4).
Wamoler v. NRC, No. 91-2190 (6th Cir.)
CONTACT:
Marjorie Nordlinger 504-1607 This is a Privacy Act suit for money dhmages and other relief arising out the NRC's inadvertent dissemination (in March 1990) of plaintiff's name, address and other information to all parties to the Seabrook licensing proceeding.
The NRC had gathered this information in response to a Congressional inquiry from Senator Edward M. Kennedy.
Plaintiff is Joseph Wampler, who has made a number of allegations concerning welds at Seabrook.
He brought this lawsuit in Michigan, where he resides.
On September 23, 1992 the district court (Robert E. DeMascio, J.)
granted our motion for summary judgment, agreeing with our argument that the disclosure of the Wampler information did not violate the Privacy Act because it was not held in an NRC " system of records" (i.e., it was not retrievable by Wampler's name or other personal identifier).
The court also found that the NRC
" acted reasonably in accumulating and assuring the accuracy of the information included in the March.
letter" (Slip op at 5).
l Mr. Wampler filed a notice of appeal to the United States Court of Appeals for the Sixth Circuit.
After full briefing the court of appeals in November issued a short opinion affirming the district court judgment.
Mr. Wampler did not seek further review.
i
-