ML20046C982

Discusses Litigation Rept - 1993 - 12

ML20046C982
Person / Time
Issue date:	07/26/1993
From:	Cordes J NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:
References
SECY-93-206, NUDOCS 9308130166
Download: ML20046C982 (22)

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ADJUDICATORY lSSUE July 26, 1993 (InfOrmatiOn)

SECY-93-206 FOR:

The Commission FROM:

John F.

Cordes, Jr.

Solicitor

SUBJECT:

LITIGATION REPORT - 1993 - 12 Ke13ev v.

NRC, No. 93-3749 (6th Cir., filed July 9, 1993)

This is the fourth. lawsuit filed by the Michigan Attorney General and the Lake Michigan Federation against the NRC seeking to halt use of an NRC-approved dry storage cask, the VSC-24, at the l

Palisades nuclear power plant in Michigan.

Petitioners filed this suit after we had filed a motion to dismiss two of their previous suits as premature.

The court of appeals has not yet acted on our motion to dismiss.

Petitioners still intend t'o argue that the NRC rule approving the VSC-24 violated the National Environmental Policy Act and the Atomic Energy Act.

Eriefing should take: place this fall, but no briefing schedule currently is in effect.

Attachment:

Petition for Review

Contact:

Peter G.

Crane 504-1622 1]ampton v.

United States, Civ. No. 93-A-798-S (M.D. Ala., filed June 30, 193)

This is a tort suit for damages against the government brought by

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the estate of an e>:-member of the Navy who was exposed to nuclear weapons tests in the 1940's.

Plaintiff alleges that the government negligently conducted the tests and negligently failed to warn those in the vicinity of the tests of possible adverse NOTE:

TO BE MADE PUBLICLY AVAILABLE IN 10 WORKING DAYS FROM THE n-DATE OF THIS PAPER 170044' 920!7 6 g

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health effects.

The suit names the NRC as a defendant, although

.i the. complaint does not indicate why.

We will cooperate with the United States Attorney's office as necessary in the government's

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defense of this suit.

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Attachment:

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,i Complaint i

Contact:

l Daryl M.

Shapiro j

i 504-1631

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Young v.

NRC, Civ. No. JFM93-1809 (D. Md.,

filed June 29, 1993) f Plaintiff in this suit claims that she wrongfully lost her NRC job due to alleged sexual, racial and-handicap discrimination and i

to reprisal for past EEO complaints.

Plaintiff previously filed j

this same suit in state court, but after being informed by the U.S.

Attorney's office that she could not proceed ir, state court, i

she now has refiled her complaint in federal court.. We.will work

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with the United States Attorney's office in defending the case.

Attachment Complaint a.

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contact:

Brad Fewell 504-1569 Graham v NRC, Civ. No. JFM93-1808 (D. Md.. filed June 29' 1993)

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Plaintiff claims that she was forced to resign from the NRC for l

wrongful racial and retaliatory reasons.

She, like Ms. Young, j

j originally filed suit in state court, but now has refiled her j

suit in federal district court in Baltimore.

We will work with the United States Attorney's office in defending the case.

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Attachment:

Complaint i

Contact:

Karl L.

Farrar l

504-1556 DISTRIBUTION:

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Cordes OIG Solicitor OPA 1

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ATTACHMENT -

Kellev v.

NRC, No. 93-3749 (6th Cir., filed July 9, 1993) l l

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UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FRANK J. KELLEY, Attorney General

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for the State of Michigan on

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behalf of the Citizens of the

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i State of Michigan, and

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THE LAKE MICHIGAN FEDERATION

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Petitioners,

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Petition For Review b ~3 Y

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No.

c UNITED STATES NUCLEAR REGULATORY

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COMMISSION and THE UNITED STATES

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OF AMERICA

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Respondents.

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PETITION FOR REVIEW Kelley, Attorney General for the State of Frank J.

Michigan on behalf of the Citizens of the State of Michigan, and The Lake Michigan Federation, an Illinois not-for-profit association (" Petitioners"), respectfully petition this Court for review of a final rule and the accompanying denial of a request for an adjudicatory hearing of the United States Nuclear Regulatory Commission.

This rule was published on April 7, 1993 in 58 Fed. Reg. 17948, amending 10 C.F.R.

a copy of which is attached hereto as Exhibit A.

5 72.214, In an order entered on July 1, 1993, the NRC terminated consideration of a request for rescission of the i

1993 rule filed by these Petitioners and declared April 7, Accordingly, as a the " rule final with respect to" them.

t precautionary measure, and in order to avoid continued argument over the timeliness of their prior Petition For 1993, Petitioners are Review filed in this Court on June 4,

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f now filing this additional Petition For Review, which they

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seek to consolidate with all prior proceedings now on appeal i

before this Court.

Petitioners respectfully submit that all i

actions as censolidated can be briefed under the briefing schedule set on July 7, 1993 by this Court.

Pursuant to 28 U.S.C.

5 2344, Petitioners further state as follows:

1.

Petitioners advise the Court that this Pe.ition For Review is substantially the same as the Petition For Review filed in this Court by Petitioncrs and a third party, " Don't Waste Michigan," on June 4, 1993 and docketed i

under No. 93-3613.

On June 18, 1993, Respondents United States Nuclear Regulatory Commission (the "NRC") and the 4

United States of America filed a notion to dismiss the instant two Petitioners from the June 4, 1993 Petition For Review (No. 93-3613), asserting that their Petition was a

j premature in light of a motion for stay and rescission of the i

j April 7, 1993 rule filed by the instant Petitioners before 3

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the NRC on May 24, 1993.

Consumers Power Co=pany

(" Consumers"), an intervenor respondent in the June 4, 1993 proceeding, subsequently filed a, motion to dismiss on June 18, 1993, raising the same arguments asserted by the i

NRC.

The difference between the two motions is that the NRC l

only moved to dismiss Petitioners while Consumers also moved i

, i

4 to dismiss Don't Waste Michigan.F These motions are currently pending before the Court.

2.

As Petitioners advised the Court in their response to the motions to dismiss, the NRC's and Consumers' arguments lack merit, and more importantly are moot.

(EER 6/28/93 Plaintiffs-Petitioners' Response to Motion to r

Dismiss.)

The proceeding about which the NRC and Consumers complained was withdrawn and is no longer pending.

(Ex. B)

Indeed, in recognition of the fact that the request for rescission is no longer pending, on July 1, 1993, the NRC entered another order " restoring the finality of the rule with respect to the novants."

(Ex. C) 3.

Petitioners continue to believe that the l

motions to dismiss filed by the NRC and Consumers lack merit.

However, Petitioners have no interest in burdening the Court with additional motion practice on this issue, and instead are eager to provide the Court with an opportunity to hear the merits of the critically important issues presented by the appeal.

For those reasons, and as a precautionary measure taken in light of the Respondents' argument that Petitioners' prior Petition For Review of June 4, 1993 was premature, Petitioners hereby file this additional Petition F

Don't Waste Michigan is not a party to thi. Petition for Review because under no set of facts could it be dismissed from the June 4, 1993 Petition for Review.

Don't Waste Michigan was not a party to the proceeding before the NRC which the NRC and Consumers cited as the alleged basis for having the petition for review dismissed.

Apparently, the i

NRC recognized this as it did not seek to have Don't Waste Hichigan dismissed from the June 4, 1993 Petition for Review.

. l

f For Review and ask that it promptly be consolidated and briefed with the other three consolidated actions pending before this Court, namely Nos. 93-1646, 93-1710, and 93-3613.2/

4.

The proceedings sought to be reviewed are those which resulted in the amendment to 10 C.F.R.

5 72.214 entered on April 7, 1993, adding the VSC-24 cask to an approved list of outdoor storage containers for high-level radioactive nuclear waste.

Petitioners also seep review of the denial of their request during the relevant proceedings for an adjudicatory hearing.

In connection with the proceedings, Respondents violated the Atomic Energy Act, their own regulations, and the National Environmental Policy Act ("NEPA").

5.

Venue in this Court is proper based upon 28 U.S.C.

5 2343.

6.

Relief is sought on the grounds that the amendment to 10 C.F.R.

5 214 adopted by Respondents is without authority, unlawful, and in violation of, inter alia, 1

I' Even under the NRC's argument as stated in its motion to dismiss, the instant Petition for Review is timely.

It has been filed within 60 days of the April 7, 1993 order.

The 60 day period at issue must take into account the period from May 24, 1993 to July 2, 1993 during which the Petitioners' notion for rescission of the NRC's rule before the NRC was pending, and during which the running of the 60 limitations period was toiled.

Egg NRC Motion to Dismiss at 6 (Hobb's Act's limitations period is stayed until the petition at issue has been acted upon by the agency).

In any event, this Petition for Review has also been filed within 60 days of the July 1, 1993 NRC order declaring the rule final with respect to these Petitioners.

For this additional reason, the instant Petition for Review is clearly timely..

I the Atomic Energy Act, Respondent's own regulations, and l

NEPA.

i 7.

The relief Petitioners are seeking from this Court is a review and set aside of the recently adopted amendment to 10 C.F.R. 5 72.214, and the accompanying i

decision to allow VSC-24 casks to be used at the Palisades Nuclear Reactor Complex in Van Buren County, Michigan, unless and until Respondent has fully complied with its obligations under the Atomic Energy Act, its own regulations and NEPA, which include but are not limited to, holding an adjudicatory hearing on the issue of adding the VSC-24 cask to an approved list of casks, conducting an environmental impact statement or adequate environmental assessment, and considering a i

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reasonable range of alternatives to the addition of the VSC-24 cask to an approved list of casks.

Respectfully submitted, FRANK J.

KELLEY THE LAKE MICHIGAN FEDERATION Attorney General of the State of Michigan By A. Michael Leffler One of Its Attorneys Assistant Attorney General in Charge Robert L. Graham, Esq.

Environmental Protection Joel T.

Pelz, Esq.

Division Terrence J.

Truax, Esq.

' D 1JENNER & BLOCK

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Chicago, Illinois 60611 John C. Scherbarth (P28865)

(312) 222-9350 Assistant Attorney General Environmental Protection Eleanor K. Roemer, Esq.

Division Lake Michigan Federation 59 E. Van Buren Street

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Suite 2215 l's 'J l.1, O

g/le W % b.zih vChicago, Illinois 60605

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Kelly G. Keenan (P36129) /

(312) 939-0838 Assistant Attorney General Executive Division P.O.

Box 30212 Lansing, Michigan 48909 (517) 373-7780 O

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i Hampton v.

United States, Civ. No. 93-A-798-S ( M'. D. Ala.,

i filed June 30, 193) f.

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jsnitch $tates pistrict Glaurt ALABAMA MIDDLE DISTRICT OF j

SILVIA I. HAMPTON, Administratrix of the Estate of J 9 O.

HAMPTON, JR.'

SUMMONS IN A CIVIL ACTION Plaintiff, 93-A-798-S CASE NUMBER:

y, UNITED STATES OF AMERICA, ET AL.,

Defendants.

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Nuclear Regulatory Commission Washington, D.C.

YOU ARE HEREBY SUMMONED and recuired to file with the clerk of this court and serve upon PLAINTIFFS ATTORNEY re, m ace==>

J. Rick Hollingsworth, Esq.

P.O.

Box 1662 Enterprise, AL 36331 60 days after service of an answer to the complaint whien is herewith served upon you, within this summons upon you, exciusiva of the day of service. If you f ail to do so, judynent by default will be taken against you for the relief cemandea in the complaint.

mmasa caer f -3o,93 CLIRK / j DATE b

BY DEPUtftLERK l

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i Ao.caween s-.a o c-a e RETURN OF SERVICE s

Service of tne Summons and Comptaint was mace by met NAME OF SERVER (PRihTi TITLE l

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Check one box telow to ondtCate SDpropr'icie meth03 Of service i

O Served personally upon the defendant. Place wnere served:

O Left copies thereof et the defendant's dwelling house or usual place of abode wim a person of suitable age and r

discretion then residing therein.

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Name of person with #.om the summons and complaint were left:

O Returned unerecuted:

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C Othe (specify r

i STATEMENT OF SERVICE FEES TRAVEL SERVICLE TOTAL t

h DECLARATION OF SERVER i

i declare under penalty of perjury under the laws of the United States of America that the foregoing information l

contained in the Return of Servic= and Staterr.ent of Service Fees is true and correct i

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3) As to who may serve a swmmons see Ruse a of tne Fasers' RutM et CivH Processes.

FILED E'F ] t{THE UNITED STATES DISTRICT COURT JUN 25993

" MIDDLE DISTRICT OF ALABAMA 93 JUN 25 PH 4: 19 u.s. DisTaE count

,,,gww o I.OFAR SILVIA Kg}{l@RTON g/gr0F3*8 JAMESS23MMfh bR.

l'JCCLE DISTRICI ALA Plaintiffs, CASE NO. bh-9 3,A-P g6 VS.

UNITED STATES OF AMERICA; THE VETERANS ADMINISTRATION; DEFENSE NUCLEAR AGENCY; DEPARTMENT OF ENERGEY; NUCLEAR REGULATORY COMMISSION; and THE UNITED STATES NAVY, Defendants.

COMPLAINT COUNT I TO THE HONORABLE JUDGE OF SAID COURT:

Come now Silvia I.

Hampton, Administratix of the Estate of James O.

Hampton, Jr.,

hereinafter called Plaintiff, complaining of the United States of America, et al., hereinafter called Defendant, and for a cause of action would show the Court the Court the following:

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1.

The Plaintiff is a resident citizen of Coffee County,,-

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Alabama, 2.

This is a claim for damages for injuries sustained by the James O. Hampton, Jr. as a result of the negligent conduct of the Defendants in exposing Plaintiff to nuclear radiation during atmospheric testing between April 1,

1946 and October 31, 1946, while the Plaintiff was a serviceman in the United States Navy stationed around Bikini Atoll; said claim is within the admiralty jurisdiction of the United States under the Public

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Vessels Act, 46 U.S.C. 55781-790 (1976) as that act incorporates the Suits in Admiralty Act, 46 U.S.C. gg741-752 (1976).

Federal l

jurisdiction in this cause is based upon 28 U.S.C.

1346 (b).

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3 3.

Between April 1,

1946 and October 31, 1946, James O.

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Hampton, Jr., while a member of a crew of a crash boat patrolling l

around the waters of Bikini Atoll during the two (2) detonations test series of Operation Crossroads, was exposed to nuclear

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ionizing radiation resulting in the Plaintiff's present medical maladies consisting of but not limited to, a severe form of rheumatoid arthritis, acute photophobia, pulmonary carsonmia j

which resulted in a right upper lobectomy, reiter's disease, phsorisis, subungula infecticn, phsoriatic arthritis,

iritis, j

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i conjunctivitis, uvitis & Pyruia.

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A claim for damages, injury or death was filed with j

3 the Department of Energy and the Defense Nuclear Agency on August j

6, 1982 and was forwarded to the Department of Navy.

On August j

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j 19, 1982, an amended claim for damages, injury and death was filed with the Department of Navy.

On December 8,

1982, the Department of Navy made a determination that it would not proceed

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This claim is filed within six (6) months of said j

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decision.

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5.

Said Defendants acted negligently by placing the Plaintiff in an area that the Defendants knew or should have 4

known had a high probability of death or injury to the Plaintiff; I

and further, the Defendants were negligent in not contacting j

the Plaintiff after 1960, when the Defendants became aware of the health problems manifested by the nuclear testing conducted 4

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i by the United States and in not warning the Plaintiff to seek l

f, immediate follow-up care and advising him of the high probability t

and likelihood of his physical deterioration and disease.

6.

Because of the injuries sustained by James O. Hampton, Jr.

which were proximately caused by. the negligence of the Defendants, jointly and severally, Plaintiff, is entitled to recover from the Defendants ONE HUNDRED MILLION DOLLARS f

($100,000,000.00) in damages, reasonable attorney's fees, costs of Court and all other damages provided by law.

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Plaintiff, Silvia I Hampton, as administratrix of the 4

estate of James O.

Hampton, Jr.,

demands a trial by jury upon all contested issues of fact.

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COUNT II a

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Plaintiff realleges paragraphs 1through 8

of Count

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9.

On June 1,

1987, James O. Hampton, Jr. deceased with j

carcinoma of the right lung with metastatic disease to the neck, /

I as a result of his presence during nuclear atmospheric testing j

4 between April 1,

1946 and October 31, 1946, while a serviceman l

in the United States Navy stationed around Bikini Atoll.

i 10.

At the time, James O.

Hampton, Jr.,

was on active

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duty and not allowed of his own will not to be present where ordered by superior officers.

3 11.

The defendants negligently and wantonly conducted the atmospheric tests of nuclear weapons so as to expose James l

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O.

Hampton, Jr.

to nuclear ionizing radiation in such massive doses as to cause permanent and fatal injury, t

12.

As a result of such exposure and the negligent and wanton conduct of Defendants, James O., Hampton, Jr.

suffered i

a severe form of rheumatoid arthritis, acute photophobia, i

pulmonary carsonmia, reiter's

disease, phsor. isis, subungula infection, phsoriatic arthritis,

iritis, conjunctivis, uvitis and Pyruia and ultimately death.

WHEREFORE, Plaintiff, Silvia I.

Hampton, as administrative of the estate of James O.

Hampton, Jr. demands judgment against defendants in the sum of $100,000,000.00 and costs.

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l J/ Rick Hollingswofth' ttorney for Plain'i s

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Box 1662 Enterprise, AL 36331 l

(205) 347-33249

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND YVONNE YOUNG Plaintiff i

vs.

SUMONS U.S.

NUCLEAR REGULATORY COMMISSION CIVIL ACTION NO.

and IVAN PELIN, Chairman JFM93-1809 Defendants TO THE ABOVE NAMED DEFENDANT:

You are hereby summoned and required to serve upon Plaintiff's whose address is 7058 Eastern Avenue, N.W.#210 Washington, DC 20012 an answer to the complaint which is herewith served upon you, I

within 60 days after service of this summons upon you, exclusive J

of the day of service.

If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint.

JOSEPH A. HAAS l

Clerk of Co rt j

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Deputy IMk j

DATE: June dh 1993 NOTE:

THIS SUMMONS IS ISSUED PURSUANT TO RULE 4 OF THE FEDERAL RULES OF CIVIL PROCEDURE, sND OR THE MARYLAND LONG ARM STATUTE.

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NRC, Civ. No. JFM93-1809

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Graham v.

NRC, Civ. No. JFM93-1808 (D.

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B WA PA!Md5 REGE!vE;

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND Jg/]

ll40[$$'U" SHAWNEEQUA M.

GRAHAM Plaintiff vs.

SUMONS U.S.

NUCLEAR REGULATORY COMMISSION CIVIL ACTION NO.

and IVAN FELIN, Chairman JFM93-1808 Defendants TO THE ABOVE NAMED DEFENDANTS l.) C dllGlE",4 R.

tj-You are hereby summoned and required to serve upon Plaintiff's whose address is 14959 Halber Sham Circle, Silver Spring, MD 20906 i

an answer to the complaint which is herewith served upon you, within 60 days after service of this summons upon you, exclusive of the day of service.

If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint.

JOSEPH A.

HAAS I

Clerk of Court b))/Y/A %

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DATE:Junec49 1993 NOTE:

i THIS SUMMONS IS ISSUED PURSUANT TO RULE 4 OF THE FEDERAL RULES OF CIVIL PROCEDURE, AND OR THE MARYLAND LONG ARM STATUTE.

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