ML20140C476
| ML20140C476 | |
| Person / Time | |
|---|---|
| Issue date: | 06/04/1997 |
| From: | Cordes J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| References | |
| SECY-97-114, SECY-97-114-R, NUDOCS 9706090284 | |
| Download: ML20140C476 (13) | |
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ADJUDICATORY ISSUE (information)
June 4, 1997 SECY-97-ll4 For:
The Commission From:
John F. Cordes, Jr.
Solicitor
Subject:
LITIGATION REPORT - 1997 - 2 City of West Chicago v. NRC, No. 96-1125 (D.C. Cir., dismissed May 16, 1997)
This lawsuit challenged a Commission adjudicatory decision that: (a) terminated as moot a proceeding seeking NRC authorization for onsite burial of mill tailings at Kerr-McGee's Rare Earths facility in West Chicago, Illinois; and (b) vacated Licensing Board and Appeal Board decisions that the Commission had not reviewed. See CLl-96-2,43 NRC 13 (1996). The City of West Chicago and the State of Illinois sought judicial review of the Commission's vacatur order.
After the case had been held in abeyance for about a year, the City and State decided to withdraw it, apparently after reaching a settlement with Kerr-McGee. On May 16, the court of appeals formally dismissed the petition for review.
CONTACT:
Grace H. Kim 415-3605 0
Mabey v. NRC, Nos. 95-1399 & 95-1400 (D.C. Cir., dismissed May 8,1997)
This lawsuit, formerly known as Cajun Electric Power Cooperative v. NRC, challenged two NRC license amendments accommodating a merger between Gulf States Utilities, principal owner of the River Bend nuclear power reactor, and Entergy. Cajun Electric (now represented by bankruptcy trustee Ralph Mabey) and a group of small Arkansas cities and cooperatives ("ACC") argued that the NRC wrongly had rejected their antitrust claim that "significant changes" had occurred since River Bend's initiallicensing and warranted a hearing. Last year, after the case was fully briefed but prior to oral argument, the parties jointly sought and obtained an order from the court of appeals holding the case in abeyance pending implementation of a settlement of a bankruptcy proceeding involving Cajuf. That, settlement called for a withdrawal of Cajun's petitions for review. M
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SECY NOTE:
TO BE MADE PUBLICLY AVAILABLE I 5 WORKING DAYS FROM THE DATE OF THIS PAPER.
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O The Commission !
l On May 8, at trustee Mabey's request, the court of appeals issued an order formally dismissing Cajun's petitions. That court order does not terminate the lawsuit, however, because ACC's petition for review remains before the Court. The parties must file a motion to govern further proceedings by July 2,1997.
CONTACT:
Grace H. Kim 415-3605 l
Reytblatt v. NRC, No. 95-1578 (D.C. Cir., rehearing denied April 10,1997)
As reported in Litigation Report 1997-1, SECY-97-040, the court of appeals in this case rejected a challenge to 1995 changes in 10 C.F.R. Part 50, Appendix J. The lawsuit attacked only the information-reporting aspects of the new rule. One of the petitioners, Dr.
Zinovy Reytblatt, sought panel rehearing and/or rehearing en banc from the full court of appeals. On April 10, the court issued orders denying both requests.
l The petitioners have until July 9 to seek Supreme Court review, l
CONTACT:
Grace H. Kim 415-3605 I
Thermal Science v. NRC, No. 4:96-CV-2282 CAS (E.D. Mo., Order holding case in abeyance
(
l entered May 9,1997) l 1
This lawsuit chaMenges the NRC's constitutional and statutory power to impose'a civil penalty against plaintiff, the manufacturer of Thermo-Lag, for alleged misrepresentations l
about its product. Plaintiff's constitutional claim arises under the Double Jeopardy Clause.
Plaintiff contends that its acquittal nn criminal charges for some alleged misrepresentations prevents the NRC from pursuing a civil penalty. A case currently before the Supreme Court, Hudson v. United States, will address the relationship between civil penalties and the Double Jeopardy Clause. Hudson case is unlikely to be decided before 1998.
Accordingly, the district court (Shaw, J.) has decided to hold the current lawsuit in l
abeyance pending the Supreme Court's Hudson decision. What is unclear is whether the court left the NRC free in the meantime to pursue its administrative civil penalty proceeding.
On the one hand, the court seemed to suggest that further proceedings against plaintiff might cause irreparable injury, but on the other hand tne court denied "all pending motions,"
including the motions plaintiff had filed seeking a halt to NRC proceedings.
We have filed a motion for clarification.
CONTACT:
Charles E. Mullins 415-1618 i
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l The Commission 1 r
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Jones v. Jackson, No. 97 C 3087 (N.D.111., filed April 29,1997) l This complaint was filed by an NRC employee for alleged violations of the Age Discrimination in Employment Act and the Rehabilitation Act in a promotion decision. The j
complaint seeks both injunctive and monetary relief. A copy of the complaint is available from OGC.
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CONTACT:
Donald F. Hassell 415-1550
. y1 o n F. Cordes, Jr.
I licitor l
DISTRIBUTION:
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City of West Chicago v. NRC, No. 96-1125 (D.C. Cir., dismissed May 16, 1997) i f
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Einitch sibrates Court of Eppeals l
FoR THE DISTRICT OF COWMBiA CIRCulT l
No. 96-1125 September Term,1996 City of West Chicago, Illinois, et al.,
i UNITED STATES COURT OF APPEA! S Petitioners
' FOR DISTRICT OF COLUMBIA CIRCdli FILED l
v.
HAY l 6 l997 Nuclear Regulatory Commission and United States of
- America, Respondents CLERK ORDER Upon consideration of petitioners' motion to dismiss petition for review, it is ORDERED that the motion is granted and this case is hereby dismissed.
The Clerk is directed to transmit a certified copy of this order to the respondent in lieu of a formal mandate.
j FOR THE COURT:
Mark J. Langer, Clerk k
BY:
Robert A. Bonner Deputy Clerk l
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United States Court of Appenla I
for the District of Colustia Circuit
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l Mabey v. NRC, Nos. 95-1399 & 95-1400 (D.C. Cir., dismissed May 8,1997)
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Uniteb difptates Court of Rppealg l
Fon THE DISTRICT OF COLUM8tA CmCUli l
l No. 95-1399 September Term,1996 Ralph R. Mabey, Chapter 11 Trustee for Cajun l
Electric Power Cooperative, Inc.,
Petitioner i
l v.
UNITED STATES COURT OF APPEILT l
FOR DISTRICT OF COLUMBIA CIRCuii.
FILED 8
i Nuclear Regulatory Commission and United States of i
l
- America, l
l Respondents MAY 8l997 1
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Entergy Corporation, et al.,
CLERK Intervenors j
l Consolidated with 95-1400,95-1402 i
ORDER Upon consideration of petitioner's motion to dismiss petitioner as a party, filed as l
a motion to dismiss petitions for review, it is ORDERED that the motion is granted and case Nos. 95-1399 and 95-1400 only l
are hereby dismissed.
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The Clerk is directed to transmit a certified copy of this order to the respondent in lieu of a formal mandate.
FOR THE COURT:
l Mark J. Langer, Clerk
/7 BY:
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Robert A. Bonner Deputy Clerk I
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i Reytblatt v. NilC, No. 95-1578 (D.C. Cir., rehearing denied April 10,1997) l l
Enitch States Court of Eppeals e T oi.mcr-cau c.cwr No. 95-1578 September Term,1996
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Zinovy V. Reytblatt and Ohio Citizens For UNITED STATU COUR
'iALS Responsbile Energy, FOR DISTRICT OF COLUMB..URCuli FILED j
Petitioners APR I 01997 v.
Nuclear Regulatory Commission and United States of k h
- America, R;"
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Respondents i
Nuclear Energy Institute, intervenor BEFORE:
Edwards, Chief Judge, Wald, Circuit Judge, and Buckley, i
Senior Circuit Judge ORDER 1
Upon consideration of petitioners' petition for rehearing filed March 24,1997, it j
is ORDERED that the petition be denied.
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i Per Curiam i
l FOR THE COURT:
i Mark J. Langer, Clerk BY:
/7 Robert A. Bonner Deputy Clerk
Eniteb fatates Court of Hippeals Fon THE Disinscior Cotuus:A CmeusT No. 95-1578 September Term,1996 l
Zinovy V. Reytblatt and Ohio Citizens For UNiiED Si5iEs v_ _
Responsbile Energy, FOR DISTRICT OF COLum_
Petitioners FILED l
APR l g yf v.
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Nuclear Regulatory Commission and United States of i
- America, r
Respondents Y
l Nuclear Energy Institute, Intervenor I
BEFORE:
Edwards, Chief Judge; Wald, Silberman, Williams, Ginsburg, Sentelle, Henderson, Randolph, Rogers and Tatel, Circuit Judges, and Buckley, Senior Circuit Judge ORDER Upon consideration of petitioners' Suggestion for Rehearing in Banc. and the l
l absence of a request by any member of the court for a vote, it is ORDERED that the suggestion be denied.
l Per Curiam FOR, THE COURT:
Mark J. Langer, Clerk BY:
Robert A. Bonner Deputy Clerk
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l Thermal Science v. NRC, No. 4:96-CV-2282 CAS (E.D. Mo., Order holding case in abeye ce entered May 9,1997) i I
P' e*
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FILED l
l UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI MAY X 91997 EASTERN DIVISION 8
. 6 THERMAL SCIENCE, INC.,
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Plaintiff,
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v.
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No. 4:96-CV-2282 CAS
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NUCLEAR REGULA'IORY COMMISSION,
)
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Defendant.
)
ORDER This matter is before the Court on defendant's notification to the Court of the United States Supreme Court's grant of certiorari in Hudson v.
United States, 92 F.3d 1026 (10th Cir. 1996), cert.
oranted, 65 U.S.L.W. 3684 (U.S. April 14, 1997) (No.96-976).
The Court concludes because the case of Hudson v.
United Rtatna presents issues critical to the disposition of this case a stay of this matter until the Supreine Court has issued its decision in Hudson is warranted.
A stay will be in the best interest of judicial economy as further proceedings in this case prior to the Hudson decision may result in potential waste and delay because HudSDD will serve as precedent for this case.
In addition, a decision by this Court in favor of defendant prior to a decision in Hudson may result in needless, irreparable harm to plaintiff.
Moreover, the record does not indicate that the parties would be substantially harmed by a stay of this matter.
Consequently, this case will be stayed until the Supreme Court has issued its decision in Hudson and all pending motions will be denied without prejudice.
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The stay in this case will be lifted following the issuance of the Supreme Court's decision in Hudson.
i Accordingly, IT IS REREBY ORDERED that this case is STAYED.
IT IS FURTEER ORDERED that all pending motions are denied without prejudice to refiling following the lif ting of the stay i
herein.
IT IS FURTEER ORDERED that the parties shall notify the Court, i
in writing, within ten days of the issuance of the United States Supreme Court's decision in Hudson v. United States, tv m oruS A. SEAR
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UNITED STATES DISTRICT JUDGE Dated this
_ day of May, 1997.