ML20148M786

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Submits Status Rept for Apr & May 1977 Re Pending Litigation
ML20148M786
Person / Time
Issue date: 05/31/1977
From: Eilperin S
NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To: Gilinsky V, Kennedy R, Rowden M
NRC COMMISSION (OCM)
Shared Package
ML20148M724 List:
References
NUDOCS 8012240039
Download: ML20148M786 (42)
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May 31, 1977 [l**:.*T:..

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MEMORANDUM TO: Chairman Rowden  !=

Commissioner Gilinshy M

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Conunissioner Kennedy ,9,.(- .. -

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FROM: Stephen F.,E11perinlklSo icitor .

'UBJECT:

S OGC LITIGATION REPORT -- APRIL AND MAY, 1977 I am trancmitting with this memorandum a status report on pendi ng - litigation . Since the February and March report .

'soven cases have been concluded and six new casos have. ~

been brought. Additionally, in a significant ruling in a not yct concluded case on liarch 31 Judge McMillan ruled .

that the Prico-Anderson Act' limitation on liability was unconstitutional. Carolina Environaental Study Groun, ~ u ,

Inc. v. AEC, et al. (M.D.M.C., No. C-C-73 '.39). d The caso Ts-~not yet concJ.uded since both we and Duke Power Company G have filed notices of appeal to the Supreme Court.

a. Concluded Cases In Union of Concerned Scientists, et al. v. NRC, et al., No. .

76-IIT/0 (lf.~D.C.), an Exemption 5 F01A suit, Judge I'lannery  :

on March 14 granted our summary jud Jment motion as to 67 of _

the 77 Hanauer-Muntzing docuuents nt issue in that case.

Moither party has appealed the decision. Another Excnption  !.

5 FOIA suiL, that involving Exemption 5 docur.cnLs underlying the Commission's Movember 14, 1975 CES: O Federal Regis ter .'

notico was dccided by Judge Bryant April 14. Natural

.h.e..n.o. ur.,.ces D.c Conse Council v. M._R_.C. , No. 7G-0502 (D.D.C).

The deca.s).on wc.s largely f avorablo and ue have decided nguinst an appeal. Plainti ^?s have until Jana 13 to fi3 e thei.:- ,

appeal shou'Jd they' choose. [ _.

Thn Comminuion's reJulations regarding release of proprietary inkreation when the Com:aission finds dlaclosure to be in' tho public interest vura uphold in a 23--p 00 opinion by the Third Circuit in iR otin.;houp 1..: l o. c..i ,ci c Co.r>7. v. XRC (Mr. . 76-1611)

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" 5 (March 22, 1977). In another lengthy opinion, Judge Pettine _

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declined to interfere with the Commission's environmental revicu of New England Power Company's application for permits g; to construct two power reactors near Charlestown, Rhode l Island, holding that plaintiffs must await an adverno final 2-order and then scck judicial review in the courts of appeals. . af Concerned Citizens of Rhode Island, et al. v. NRC, No.76-520  :

(D. R.I.) (April 19, 1977). 73 1

r Plaintiffs' choice of a mistaken courthouse was again the basis of decision in Cincinnati Gas & Electric Co., et.'al. E -

v. NRC, et al., No. 76-2376 (D. D.C.) and City of Louisville,_  ;

et al. v. NRC, No. C-77-0053-L (N.D. Ky.). In the Cincinnati Gas case, Judge Gesell on March 15 ruled from the , bench that -

a challenge to the Commission's license fee rule d.ust bc ~

brought in the court of appeals, not the district court. In City of Louisvilla, plaintiffs had sought review of a prelimin- .e ary Appeal Board order without awaiting a final order review-able in the court of appeals. The complaint was dismissed on _

March 7. Finally, in Jerry DiGiovanni T/A Jorry's Co:r73rcial Art v. Robert McKinney, No. 77-0003 (D.D.C.), a suit urought by a commercial artist against an NRC employee personally for m h, a claimed contract to purchase .a design for an AI:C logo was g hold barred by the D.C. statute of limitations. 5 e

b. New Cases Six new cases have been brought -- John Abbotts, et al v. NRC _.

(D.D.C., No.77-624) seeks various safeguards docaments under the Frcedom of Information Act; Natural Resources Defense Council, Inc. v. HRC (D. New MexTho, No. 7/-240-B) chalidnges -

the lack of an enviornmental impact statement in connect.t.on -

with New Mc".ico's licensing of the Church Rock uranium mill; another lawsuit brought by NRDC, Natuntl Resourcen Defense E l Council,~~Inc. v. NRC (D.C. Cir., No. 77-1448) contests tuo l validity of the interim uranium fuel cyclo rule; Mew Engl.and -

Coalition on Nuclear Pollution v. NRC,_ct al. (1s t Cir. , No. 9

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77-1219) sechs rc 1Tw oI~thu Commibsion's M!irch 31 Seabrook .... ,

decision; Dabcock and Milcox Company v. NRC, et al. (D.C. Cir., 6: 9 no. 77-145*/) iccks iianicdiatE~injunctivo rel'i2 against United E

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l Technology Corporation's proposed takeover of B&W -- tho l

court of appeals denicd the request on May 27; finally,  :

Central Powar & 1,.icht Co. v. NRC, et al. (D.C. Cir., No.

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! */7-3464) arkn tac court of appeals to overturn the' Appeal -

Daard's decision that under Comminnion regulations Licensing

()= Boards can not. reopen a concluded conutruction permit proceed-ing for the purpunu of in.itiating a hearing to determine whether unt.itrust conditionn chould be .iupocod on the permi.:.

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.c. Ponding Casos p.. ,

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Mwt of the pending cases were activo since 9 e last report, namely, 4, 5, 6, 7, 9, 11, 12, and 14 thrnu3h t/ all detailed ., ~,

'in the attached litiga'. ion report. ' The

listed be. low *  ;

are of the most ircacdiato significance 1 ans of a possible '

adverso impact on NRC's activities throus a futuro 'courb  ; ...

ruling. '

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Case Reference No. ='

.l . Carolina 1invironmental Scudy Grouo, . 4 Inc. v. AEC, et al. (W.D.N.C.. No.

C-C-73-139) _l ..;

This case challenges the constitutionality of the Prico- I Anderson Act's limitation on liability. On March 31 -

Judge McMillan concluded that plaintiffs had standing, the case was ripe for decision, and that the limitation .

violated both due process and equal protection. An  ;

adverse ruling on the constitutional question _by the Supreme Court could deter utilities, suppliers, and- 5 financial institutions f rom pursuing the nuclear option,  :.j and (depending upon the scope of the court's ruling)  ;

possibly cast doubt on the validity of insurance and p  :

g-indemnity agreements which have previously been signed. f 1

2. NRDC , et al. v. NRC 13 -!

(D.C. Cir., Mo. 76-1525) d 2;

This is the Tarspur case. Should the D.C. Circuit dis- p agree with the NRC's conclusion on standing (which is.

possible in light of the popularity of the notion that a

  • government decision ought to be reviewabic by someone c ,

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somewhere), future export licenso proceedings may become far more time-consuming, especially if the court also .]

requires adjudicatory hearings. Judges Bazelon, Leven- '

than and MacKinnon heard oral argument on December S and the case is now ready for their decision. While the _ ,

standing issue is in doubt, we think it unlikely that i l the court will impose an a6 judicatory hearing r'cquirement. j

3. NRDC, et al. v. Scamans (D.D.C., No. 76-1691) 16

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This suit socks to block construction of the waste tanks projected for the llanford and Savannah River facilitics.

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The caco is before Judge Ri.chey who has sch an expeditc5 schedule for disponing of tiic caso and briefing is now -

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j complete. Judge Richey is often out of sympathy wita. '

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governannt agencies and an c;:pansive reading of !!RC's

, obligation to license ERDA facilitics could result from this lawsuit. This, in turn, may lead Judige Richey to enjoin further construction of ERDA's waste tanks until i

NRC develops regulatory lic'ensing critoria for the tanks ,

and approves their construction. Additionally, I think it is-probable that ERDA will be taken to taskifor not

'having issued an environmental impact statement for l

these projects.

4. Audubon Society of New Hamoshire, et al. 14
v. United States, et al7(1st Cir. , No.

76-1437)

' This case seeks a stay of the Seabrook construction until the Appeal Board decidos the merits of petitioners' appeal i from the Licensing Board's initial decision. Should the i court of appeals grant a stay, we may see licensing deci-sions taken to court at an earlier stage than has been ~

usual -- i.e. , - prior to Appeal Board disposition on the merits. AdclItionally, the court could conceivably rulo C that furthar construction must await a final EPA decision That kind of ruling woult' on an acceptable coolincJ system.

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! be quito harmful. Neither result is likely in this casa since the First Circuit allowed the Commission to dispose of the EPA issues and the case has effectively been super-sodnd by subsequent events including the Commission's March 31 Scabrook decision.

17

5. New England Coalition On Uuclear

- Pollution v. NRC, et al. (1st Cir.,

No. 76-1469) i This case seeks to invalidate the Conmission's direction to review the Appeal Board's Scabrook decicion. An adverso decision (which we consider unlinaly) might

, noccasitate an early revision of the Commission's sua l sponto revice rules.

. 6. New g,gjgtr a Coalition On nuclear 25 P ollut.t on , et al. v. URC, et. al.

(iTt CiU., No. '77-1219)

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This casc challengos the Commission'n March 31 Snabrook E

decis.i on . An aciverne decision could negate the Commis-cion's HimA guidanc for asucaning alternative sites, as ..
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wc31 au the guidance for tahing into account sunk costs. '
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7. Tenne mec Valley Author $tf v. Mnc 20  :

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TVA docs not wish MRC to take an independent look at its ?i!.

  • environmental-impact statoments - and is suing for a - -

declaratory judgment that exercise of NEPA authority- j.gg over carly site- c1 caring activities was. beyond URC's -

, h; ~ 1 authority. An adverse decision would effcet all TVA 5'

nuclear projects and perhaps bear on URC' review of'ERDA projects-as well'. ,p.l, . .;

'8. Natural Resources Defense Council, Inc. 23

v. NRC, et-al. (D. New Mexico, No.

77-240-B)

This is the challenge to New Mexico's licensing of the -

Church Rock uranium mill without an environmental .l.mpact statement having been prepared. This case could.  :

significantly effect the manner in which Section 274

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Agreements. are entered and administrated, and could have broad ramifications regarding other federal programs which call for a relinquishr.ent of federal authority to the States.

(" 9. Natural Res'ourcesI Defense Council, Inc. 24

v. NRC, et al. (D.C. Cir., Ho. 77-1448)' .

- NRDC has challonged the Commission's interim fuel cycle rule. If the challenge succeeds before a final rule is in place, it could seriously impact on power plant  ;

licensing.- We doubt that the D.C. Circuit would set aside the interim rule on procedural grounds while the Supreme Court has those issues pending before it in the '

Vermont Yankce case.-

10. The Babcock and Milcox Company v. NRC, 26 et al. (D.C. Cir., No. 77-1457) 1 .,

in ,

On May 27 the court of appeals rejected. (ab icast on an E R

, cmergency basic) B&W's attempt to emx.esh the Commission '

b 9 in the midst of a corporato tahcover move. Should the court of appenis change its mind af ter a more leisurely , g bricfing schedulo, the Commission s policy of reviewing i

gc j Section 184 transfers would be affected. '

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.cc: Loc V. Gossich N lloward K. Shapar g.g q;; 4

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(7 Joseph 1.'elton f l J.M. Cutchin . ,

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OcC LITIGAIION REPORT .

4 April and May 1977 Pending Cases "ASE CASE

SUMMARY

STATUS

1. S'inneseta Environmental Centrol FILED: February 15, 1972 On July 28, 1972, Judge Miles

?I?Tihn's Association, et al. v. ACTION: ' Plaintiffs, a citizens' asso- Lord issued an opinion re-nto ric Er.crgy Commission, et al. ciation, seek to enjoin further fusing to enjoin construction (D. Minn., no. 4-72-109) development and operation of or provisional operation, but .

Nerthern States Power Company's holding that before full operat-

' Monticello and Prairie Island ing permits for these facilities

facilities on the ground that could be granted a fuli NEPA the Prairie Island construc- review was required. The court tion perm'.., and the Monticello retained jurisdiction over the provisional operating license matter to ensure th-t such a were issued without preparation review was performed. Curing cof an environmer.tal impact the past five years the Com-statement. mission has undertaken this environmental review, and both licensing preceedings are ncar-ing completion. Once they are completed, we will trove to dis-miss the complaint on grounds of -

mootr.ess, as well as ti:e ex-clusivity of. court of appeals 4 revies. ~

FILED: March 1973 Opinion, June 1974, placing

2. Uest Michican Environmenta' Action .

case in abeyance pending GESMO.'i teuncil, Inc. v. AEC, et al. (u.D. ACTION: Citizen group plaintiffs seek

.Micn., No dTSS-73) tan injunction against increased review. The utility has not s,.

use of mixed oxide feel in pressed its application nor -

Consumer Power Co.'s Big prepared the requir.2d environ a Rock power reactor. mental r'eport, and iience the T case may moot out.

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SUMMARY

STATUS

3. l_loyd Harbor Study Group v. FILED: December 26, 1973 On November 9, 1976, the O.C.

lMC (D.C. Ci r. , No. 73-2266) ACTION: Citizen group challenged Circuit entered a one-page order issuance of construction which dismissed the Class 9 con-and permit en grounds that NEPA- tention on 'he basis of CESG v.

review for the Shoreham AEC, 510 F.2d 79C- (D.C. Cir. 1975),

Long Island Lighting Co. v. facility was deficient in Fut remanded the fuel cycle aspcct i_loyd Harbour Study Group, Inc. that it: (1) reserved for of the case for further considera -

8,S. Ct. No.76-745) generic treatment the ques- tion in conformity with ECC v.

tion of incremental impact NRC (D.C. Cir. D. 76-15 F f.' See of the uranium fuel cycle; Item 6. On November 30 the utility and (2) failed to consider petitioned the Supreme Court for the consequences of a a writ of certierari . The Supreme class 9 accident. Court has taken no action en the -

certiorari petition, thus in effect' holding the case in abeyance pend-ing its disposition 6f NRDC v. NP.C_.

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CASE

SUMMARY

STATUS CASE Carclina Environr.antal Study Group, FILED: June 1973 Dismissed except as to 4.

inc. v. AEC, et al., U.S.D.C., ACTION: This suit, filed by citizens Price-Anderson issue in groups, challenged the grant- June 1975. In January W.D.N. C. , No. C-C-73-139 ing of a construction permit 1976, the ccurt ordered cn to Duke Power Co. for the evidentiary hearing on i McGuire facility in North plaintiffs' standing and

. Carolina. Plaintiffs alleged ripeness to challenge the

< 'that the Commission's NEPA re- limitation of liability.

i view was inadequate. They also The hearing was held Sep-

attacked, on constitutional i tcmber 27, 29 and 30. We grounds, the limitation of called Joseph _Marrone of
liability in the Price-Anderson NEL-PIA, Victor Bond and

. Act. The court held this case M;chael Ber. der of BNL, Hal

, in abeyance pending the D.C. Lewis of U. of Cal . , and Ed i Circuit's decision in C.E.S.G., Case, Saul Levine and Waync

v. AEC. Following that decision Britz of MRC, to testify as ~

uphofrling the Commission (510 to the absence of " injury"

- F.2d 796), the court dismissed from the operation of nuclear those issues which were treated plants. Post-hearing briefs-by the D.C. Circuit. were filed October 18 and ,

reply briefs.wcre filed October 26. On March 31 Judge McMillan ruled that -

plaintiffs had standing to challenge the Price-Anderson Act', that the risk of injury was real, and that the limi-

'., tation on liability was un-constitutional. Da May 2 and May 13, respectively, Duke Power and HRC filed i notices of a direct appeal

- of the decision to the Supreme Court pursuant to 28 U.S.C. 1252. On May 19

,' - Judge McMillan denied Duke n :,- - - - - . Jo'.jer Co,'s.mo. Lion for stfy_

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5. J:ylsen Aeschliman, et al. v. FILED: July and August 1973 AdC, et al., U.S.C.A., D.C. ACTION:

NP.C's brief filed August 29, Ci r. , ';o. 73-1776; and Saginaw Private citizens and citizen 1974. Oral argcment held on Valle_v tiuclear Study Group, et groups challenged the grant- November 27, 1974. On April 8, of a construction permit for 1975, the court of appeals cl. v. AEC. et al., U.S.C.A., two commercial reactors in L.C. Cir., No. 73-1867 Michigan. A broad range of ordered that the cases be held in abeyance pending the ccart's safety and environmental and decision in imDC v. NRC (No.

issues was raised. 74-1586). See item 6. The Consumers Podier Co. v. D.C. Circuit decided the case ielson Aeschliman, et al. On July 21, 1976. 547 F.2d 622.

It disapproved the Ce:nuission's

-IS. Ct. No.76-528) treatment of energy conservnion .

-issues, ruling that the Cc=is-sion had placed tco stringent an. .

cvidentiary burden on groups seck '

ing Conmission considerction of energy corservation issu?s.

The court also held that ACRS reports must be sufficiently explicit to_ inform the pu'a lic of all identified hazards of reactor operation, and that the Licensing Boards have the obligation to return cryptic  :

reports to the ACRS for fur-  !

ther cla'onution.

c The case was remanded to the Comission for the purpase of re-stri%ing the i NEPA cost / benefit balanca. Con-  !

sumers Pcwcr filed its certiorari

[ Continued]

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CASE CASE SUPJtARY- STATUS .

5. Aeschiinan v. AEC [ Continued] petition on October 15. On.

December 27 Aeschliman and Sagina.: Valley filed their

! ' opposition to Supreme Court review. On January 10, 1977,  :

the United States and the NRC l

~ filed a joint memorandu:: setting forth their respective views.

NRC's position is that.the

- Supreme Court should review the case (ir it revicts the fuel cycle case) to correct the ,

court of appeals' rulings.

The United States, while agrec--

ing that the lower court erred. -

) in some respects, suggested that i

the case ivas not important encugh .

to warrant Supreme Court review.- i On Fc~ruary 22 the Supreme o

i Court granted certiorari and  :

! consolidated this. case with 1

the fuel cycle case. The utility's bricf'and ours are to be filed June-6.

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SUMMARY

STATUS '

6. i;atural Resources Defense Council, FILED: March 1974 Argued beforc the D.C. Circuit loc., et al. v. AEC, et al., ACTION: Petitioners challenged the on~May 27, 1975. The D.C. Cir-U.S.C.A., D.C. Cir., No. 74-1385 Commission's issuance of cuit decided this case together the Vermont Yankee operating with No. ~74-1586 (see item 7) en and license. Relying on NEPA, July 21. 547 F.2d 633. It set.

they attacked the Commis- aside the Commission's'cranica ,

Cerp. v. NRDC (S. Ct. No. sion's treatment of environ- fuel cycle rule (Table S-3)_in-76-149) mental effects of fuel cycle sofar as that rule assiscs numer-activitics attributable to crical. values to the envirormental Vermont Yankee's operation. effects of reprocessing and waste disposal attributable to the licensing of a nuclear power plant. The court also re--

manded the Verment Yankee- .

operating licens9 to the Commis-sion for further consideration pending an adequate assessr.ent .

of those issues. .Vertont. Yankee ,

- filed a certiorari ~ petition with i' the Supreme Court on September 21-and a supplemental ~brief on Occcmber 6. NROC filed its '

opposition to certiorari on December 27. On January 10, 1977, the United States and the NRC filed a icint memorandum setting forth their respective-views. See item 6. On Feb- l

, - ruary 22 the Supreme Ceurt granted certiorari 'and con-solidated this case with Aeschl iman. Driefs are to be

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SUMMARY

STiiT:.*S i

7. ':-tu r.7 : . Resources Defense Council, FILED: . June 1974 The D.C. Circuit heard crgument inc.. et cl. v. AEC, et al., ACTION: , Petitioners challenged the on May 27, 1975 and decided this L.5.C.A., D.C. Cir.,Ito. 74-1586 Ccenission's issuance of a case with No. 74-13S5 en July 21. i

. rule prescribing the manner 547 F.2d 633. See item 6.*  ;

and ,of accounting, in individual Vermont Yar.kee and Baltimore'

' licensing cases, for the Gcs & E cctric Co. sought paltimore Gas & Electric ,' environmental consequences . Supreme Court revic.1 en Co. , et al . v. itattra l ;of the uranium fuel cycle September 21 and October 19 F.escarce_s Cefense ,activites. respectively. Vencont Yan?.cc Coun ii Inc. , et al . filed a supplementai brief in

5. Ct. ;e.76-653) support-cf its certicari peti-tion on December 6. On October 8 the D.C. Circuit stayec its can-date pending Supreme Court dis- ,

position of the petitions for .

certiorari, and stcted that con- ~

ditional licenses could be '

issued in the interim. .:RDC sought clarificatica of that stay order, which the Court of Appeals denied -February 17, i thus reinforcing MRC's inter-pretation of the October G stay of tcandate that' condi-

~tional licensing.was per-

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missible. Vermont Yankee and i Baltimore ~ Gas & Electric' '

also opposed haDC's interpre-tation of the Ccicher 8 stay

-order. On December.27 NP.D0 filed ,_

its opposition to the Vermont Yankee cnd UG5E certior:.ri peti-l tions, arguing that the court of l

appeals' decision was based simply; on the inadequacy of factual sup-

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CASE CASE

SUMMARY

- STATUS

7. TiRCC v. AEC [ Continued]

reprocessing values of Table S-3.. '

On January 10 the United. States and NP.C fiicd a joint memorandum >

l with the Supreme Ceurt setting forth their respective vicxs.

NRC's position is that the cer-tiorari petitions should be .

granted since the court of appeals has errer.cously- required' more than notice-and-co:rr.ent procedures for the waste dis-The United States posal rule.

suggested that the petitiens .

should be denied because the lover court decisions were based  ;

on the inadequacy of the fcctual '

record.' On February 22 the Supreme Court 5; ranted Verment Yankee's certiorari petitien..

Briefs are due June 6.

lio action was taken en 3G5E's petition. The Supreme Court has decided to hold-that case in abeyance pending its decision in yermontYankee.

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SUMMARY

STATL'S

8. _ State of New York v. NRC, et al., FILED: May 1975 Motion for preliminary injunc-tion denied, September 1975.  ;

(S.D. H.Y. , No. 75 Civ. 2121) ACTION: State seeks to stop air ship-ment of plutonium, pending Appeal taken to 2d Circuit.

. preparation of environmental State's meticn fer seemary and impact statement. judgment was filed on Decen-ber 11, 1975. The State's State of New York v. NRC, et al., motion for surmary judgment-t.os. 75-6115, 76-6022 and 76-6081 was denied and it has sought (2d Cir.) review of that decision in the Second Circuit. The two appeals were censolidated as was a third ap;'eal taken from ,

the district court's ceder t dismissing CAG and the i Custons Service. Oral argu- .

ment was heard on July 21.

t ~ On February 14 the Secend

~

Circuit issued a 39-page

! opinion affirr.iing the dis-trict court's denial of.

l plaintiff's motion for a pre-liminary injunction. The Court reasoned that plaintiff

'- had failed to prove irrepar- ,

able injury in view of the remoteness of a transporta-

- tion accident ard the absence

  • of an agency commitment of re-  !

sources to a particular trans- ,

portation mode. The Second , - ,

[Centinued] ...-

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CASE CASE

SUMMARY

STATilS

8. State of New York v. NRC, et al. Circuit also dismissed on

[ Continued] procedural grounds that a final appealable order was lacking, the appeals from the district court's dis-missal of the CfB and Customs Service, and the denial of plaintiff's summary judgment motion. The Second Circuit noted our expectation (stated in a November 17 letter to

- the U.S. Attorney) that the-Conunission's impact statement will be published early in February 1977. We have in ,

fonned the U.S. Attorney of.

the latest delay in this re-gard. The case now returns

- to the district court for further proceedings.

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CASE

SUMMARY

STATUS CASE

9. State of New York v. NRC, (2d FILED: December 1975 The ' Government's brief was filed '

Cir., No. 75-4278) ACTION: New York State and citizen groups on March 12, 1976. Argument seek review of HRC's November 14 was heard on April- 12, 1976.

and 1975, Federal Register statement On May 26, 1976, the court as to the Commission's standards issued a decision. upholding in flatural Resources Defense for interim licensing prior to a full the Conmission's GESMO Council, et al. v. NRC, et al., Commission decision on wide-scale hearing procedure, including U.S.C.A., 2d Cir., No. 75-4276 plutonium recycle. bifurcation and predominantly legislative fonnat. It also and upholds the. scope of staff re-view and hearings on individual license applications set forth Allied-General Nuclear in the November flotice. As 'for Services, et al. v. HRDC, interim licensing, however, the et al., (S. Ct. No.76-653) decision forbids all except that done for " experimental and feasi -

and bility purposes." This prohibi '

tion covers all separations, Commonwealth Edison Co., et al . v. NRDC, et al . (S. Ct.

conversion, fuel fabrication, imports, and loading of mox.in No.76-762) -

reactors unless it can' be clearly -

and shoun that the action isinot re-lated to " commercial" plutonium-Baltimore Gas & Electric Co., recycle. . The thrust of the et al. v. NROC, et al. (S. Ct.- opinion is that it would be Very difficult to justify any No.76-774) interim licensing not obviously limited to experimental purposes,'

and '

Current uses of mixed oxide fuel,:

however, are unaffected by the

'<!estinghouse Electric Corp._ v.

NROC, et al . (S. Ct. No.76-769) opinion. 539 F.2d 824.. .

[ Continued]

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12 .

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CASE

SUMMARY

STATUS-CASE .

State of New York v. NRC &

In passing references not  :

9. necessary to the decision, Natural Resources Defense -the opinion also-asserts the Council, et al. v. NRC, et al. draft GESM0 is inadequate be- ,.

1

[ContinuedJ cause it does not treat non- j nuclear'a'ternative power ',

sources. 1Cn June 30 t!RC filed a petit:sn for rehearing or rehearing en banc. The N

- court of appeals denied the {

petition in a short opinion-  !

issued September 8 which ad- 1-hered to the court's earlier .i conclusions. On February 4 {

the Solicitor General filed a ,

t memorandum on our behalf with the Supreme Court suggesting .

that the Supreme Court 'should --

~ summarily reverse the'Second Circuit's decision as incon-sistent with Klepp_e v. Sierra '

Club. AGNS filed its petition for certiorari on November 9.  !

Commonwealth Edison, Westing-  !

house Electic, and Balti- '

- more Gas & Electric filed' their-petitions on December 3 i December 7, and December 7, 3 t

- respectively. New York State {

and NRDC opposed certiorari, j The Supreme Court granted cer- l tiorari on March 21, and on .

May-18 our tine for filing a brief was extended until Aug-  ;

ust 12 in order to allow the -;

Conmiission to reconsider GESMO in light of the' President's j

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13 -

f CASE

SUMMARY

STATUS-CASE United States v. New York City FILED: January 15, 1976 On January 30, 1976, the United.

10. States' motion for a preliminary (No. 76 Civ. 273 S.D.N.Y.) ACTION: Complaint filed January 15, 1976. . U.S. seeks declaratory injunction was denied, partly
  • and injunctive relief regard- because Judge Wyatt was un-ing a provision of NYC's . convinced that the City's Health Code dealing with the - ordinance was inconsistent transportation of nuclear with DOT policy. 00T has materials through the City. published-regulations under the Hazardous Materials-

- Transpartation Act which became effective January 1977 and allow interested persons to seek a ruling that a local -

ordinance is inconsistent'with DOT regulations. On Feb-ruary 28 Brookhaven filed its .

j request ~for such a ruling with DOT, arguing that the City's-t restrictions on shipping new.  ;

and spent fuel were inconsist-ent with DOT's regulations..

Most likely DOT will not ruleL on the issea-for some months.

After D0T's-position is fixed, the United States will then-t i

seek summary judgment in federal s district court. This summary l judgment motion had been ex-l . .

pected by the summer of 1977, i

but Brookhaven's delay in seek-ing a ruling from DOT and DOT's ,

delay in processing Brookhaven's application may set the schedule back somewhat. . , . - - ,c . . . -

a +- .

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14 . _.

CASE SUM 4ARY STATUS CASE

11. Culpeper League for Environ- FILED: May 28, 1976. On July 6 NRC filed the certified mental Protection v. NRC, ACTION: Petition for review index of the record. . On July 15 the (D.C. Cir. , No. /6-1484) in the U.S. Court of Appeals Court ordered this case consolidated with Item 11. Petitioners' briefs for the D. C. Circuit. Peti- were filed in mid-August and our tioners challenge an Appeal Board decision, not reviewed brief was filed September 20.

' by the Commission, which con- Briefing is complete, and tlu2 Court cerned the routing of high- heard oral argument on April 25.  !

voltage transmission lines The case is now ready for decision. I from VEPC0's North Anna Power Station. Petitioners contend an alternate route would have been preferable from an environ- .

mental standpoint. The Appeal -

~

Board, relying in large measure on evidence brought out during l sever, days of Licensing Board hearings, concluded the route chosen was environmentally sound. ,

12. Fauquier League for Environ- ACTION: This petition is nearly iden- ,

~'

mental Protection v. NRC tical to that filed by C'ulpeper .

(D.C. Cir., No. 76-1632) League for Environmental'Protec-tion (No. 11 above) and has been consolidated with it. .

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15 CASE

SUMMARY

STATUS CASE

13. NRDC, et al. v. NRC (D.C. Cir. FILED: June 11, 1976 The certified index of the NROC and the Union of Concerned record was filed on July 26.

No. 76-1525) ACTION:

Scientists sought leave to inter- - The State Department inter-vene in two NRC export license vened and filed a motion to proceedings involving applica- dismiss, which the court-tions to export low-enriched denied. Petitioners' uranium fuel to India for use brief was filed September 7 at the Tarapur Atomic power Sta- and our brief was filed tion. Although it decided to October 26. Replies (including hold a non-adjudicatory hearing our reply to the Department of

'onfthesearplications,theNRC State's brief) were filed denied petitioners' request to November 9. Oral argument was -

intervene as parties in the NRC heard December 8 before Judges licensing proceedings on the Bazelon, leventhal and MacKinnon

- ground that they bcked standing. Our defenses include lack of Their petition to the D.C. Cir- standing and the absence of a cuit seeks review of the Commis- requirement for an adjudicatory .

sibn's action with regard to hearing.

License No, XSNM-845. They contend that the Commission erred in deter.nining that they lacked standing and that a full adjudicatory hearing was not required.

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CASE

SUMMARY

STATUS.

CASE FILED: July 29, 1976 On August 6 petitioners moved. r .!

14. Audubon Society of New the court to suspend the effective-Hampshire, et al. v. United ACTION: On July 29, two environmental groups petitioned the 1st ness of the construction permits States, et al. ,1st Cir. , until such time as the Appeal Board Ho. 76-1437 Circuit to review the Appeal i

Board's. July 14, 1976, order rendered its decision on the m;rits-declining to stay the issuance of the appeals which had been taken-of construction permits for from the initial decision. On Seabrook Station, Units 1 and August 27 flRC filed its memorandum

2. Petitioners are seeking a in opposition. It is our position stay of construction until the that petitioners' have not demon-Appeal Board can pass upon strated a likely success on appeal their' exceptions to the or irreparable injury. The 1st Cir.

Licensing Board's initial heard argument on September 16 decision. and on October 8 issued an order '

and opinion inviting the Appeal -

~ Board to reconsider its ALAB-333 decision. The court indicated '

that it was unconvinced that pett-tieners had suffered irreparable injury but wished to hear the agency's views on petitioners' turbidity claim. Pursuant to the

~

court's invitation the Appeal Board reconsidered ALAB-338, and on Novem-ber 8 announced its decision to

, adhere to its earlier conclusion ,

denying the stay. ALAB-356. The next day, an EPA Regional Adninis-  !

trator issued an. initial decision denying Seabrook's request for a Federal Water Pollution Control Act discharge permit, finding that

[ Continued]

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17 .

CASE

SUMMARY

STATUS CASE Audubon Scciety v. U.S. the once-through cooling system as

14. proposed by the utility was_not

[ Continued] adequate. On November 11 the court of appeals ordered the parties in this case and in NECNP v. NRC (item 17) to advise it whether

^

EPA's action mcoted the court ,

cases since the Licensing Board had conditioned Seabrook's con-struction permit on EPA not order-ing closed cycle cooling. -On i November 26 we advised the court

~

that the cases are not moot since EPA has not yet ordered closed -

~ cycle cooling (another type of once-through cooling nay suffice),

the' Licensing Board's condition is l on appeal, and the utility has appealed the Regional Adminis-.

trator's decision to the EPA Administrator. On November 30 SAPL-Audubon filed a supplemental

' memorandum again requesting a stay.

The court of appeals on December 3 ordered a conferer.ce on December 9.

After extended argument the First Circuit that same day issued a -J statement' calling on the Appeal

. [ Cont'inued] - ,

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SUMMARY

STATUS CASE

14. Audubon Society _v. U.S. Board-to consider the relevance of' the Regional Administrator's deci-

[ Continued] sion so that the court might have the benefit of the Appeal Board's thinking. In a separate opinion handed down December 17.- the First Circuit asked the Conniission 'for assistance in resolving the diffi-cult stay issues. The First Cir-cuit gave the Commission and the Appeal Board until February 18 to render a decision. On December 10-the Appeal Board heard argument on "

the EPA stay issues as well as on the appeals from the Licensing Board's decision. On January 21 the Appeal . Board ordered a halt '

to construction at Seabrook. ALAB-366. The Conmission directed review and allowed the utility to proceed with-limited excavation

-pending the Commission's. decision on the merits. On March 9 SAPL-Audubon sought a halt to con--

tinuing construction from the l First Circuit. We opposed that-

[ Continued]

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' STATUS CASE CASE

SUMMARY

motion March 22 as did the utility.

14. Audubon Society v. U.S. On March 31 the Commission rendered

[ Continued] its Seabrook decision, allowing ,

limited excavation to proceed.but otherwise suspending the permits pending rcmanded hearings before the Licensing Board. On April-27 the court entered an order advising that it would consider the stay .

issue moot in light of the Com- ,

mission's March 31 opinion unless i counsel objected. Both NECNP and i SAPL-Audubon have objected. Hence the stay of construction issue is

" .again under consi derati on by the ,

court of appeals and, additionally, NECNP has petitioned the First Cir-cuit to review the Commission's March 31 decision. See item 24.-

Meanwhile, the EPA Administrator i is considering the utility's appeal  :

i

~

from the Regional Administrator's i

decision and on March 23 asked for ',

further information as to back- '

flushing. An. EPA decision is still under advisement. ,

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CASE

SUMMARY

STATUS CASE

15. 14artin Hodder, et al. v. FILED: August 2, 1976 On August 13 petitioners filed a NRC, D.C. Ci r. , No. 76-1709 ACTION: Petitioners seek review of the motion seeking summary reversal partial initial decision and injunctive relief. He filed authorizing issuance of an LWA cur opposition on August 27, On 2 for St. Lucie Unit 2. October 21 the D.C. Circuit denied petitioner's motion for summary reversal, but stayed further work under the LWA in light of the Appeal Board's finding that alternative sites were not ade- i quately considered. On October 22, the court of appeals denied the utility's motion for rehearing, and ! '

gave Florida Power and Lignt until November 8 in which to terminate construction activities. On Novem- !

ber 4 the utility moved to delay i that date and filed a suggestici: '

for rehearing en banc. The court i of appeals denied those motions Nov?mber 22. Consequently, work under the LWA ceased pending l consideration of alternative sites,

  • On April 19 the Licensing Board [

1: sued its Initial Decision re-  !

solving the alternate sites con-tention in favor of the St. Lucie site and authorized issuance of a construction permit. lle advised the Court of Appeals of this on i

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  • 21 CASE CASE

SUMMARY

STATUS

15. Hodder, et al. v. NRC April 21. On April 29 peti-

[ Continued] tioners asked the court to enforce the October 21 stay order. We opposed, arguing that the court's stay terminated with completion of the alternate sites hearing by the Licensing Board. On May 12 the Court of Appeals entered an order sup-porting our position. The court dissolved its stay and dismissed petitioners' notion as moot. It also ordered that the petition for review no longer be held in -

abeyance. On May 13 petitioners moved for a stay of the construc- .

tion permit. We opposed on May 24 arguing that petitioners had not exhausted their administrative.

remedies and did not meet the Virginia Petroleum standards for issuance of a stay.

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- STATUS -

CASE CASE

SUMMARY

FILED: September 9,1976 The Government answered the com-

16. Hatural Resources Defense plaint on November 8, 1976, denying Council. Inc., et al. v. ACTION: NRDC and other environmental Robert C. Seamans, Jr. , groups have sued ERDA and NRC the principal allegations. Specifi-seek.ing to block construction cally, NRC denied that the waste et al. (D.D.C., No.

of the waste tanks projected tanks at issue required licensing 76-1691) under Section 202(4) of the ERA.

for the Hanford and Savannah River facilities. The com- The Government also moved to and transfer this case to the federal plaint urges that ERDA has district court in Spokane, Washing-failed to comply with NEPA by In re Robert W. Fri_ not issuing an environmental ton where a sonewhat similar suit Acting Administrator of filed three years ago was then pend-impact statement for the waste On Hovember 18 plaintiffs oppose ERDA (D.C. Cir. No. tank construction, and that ing.

77-1210) our motion to transfer and we re-ERDA has failed to obtain li-censes from NRC under Section plied te that opposition. On 202(4) of the Energy Reorgani- November 8, the same day the zation Act. The request for Government answered, plaintiffs relief is directed principally filed an amended complaint against ERDA rather than NRC alleging that NRC's letter- -

in that injunctions are sought denial of its licensing authority barring ERDA from constructing was arbitrary and capricious. We the tanks. NRC is named as a filed an answer denying these amended allegations November 22.

defendant because plaintiffs seek e declaratory judgment Judge Richey denied the transfer that NRC has licensing author- motion on January 14 and set up ity in this matter. an expedited schedule for consider-ing the case. On February 28 the United States filed a mandamus action in the court of appeals to compel Judge Richey to transfer the case.

' The mandamus action has not yet been ruled upon but the Spokane. -

Washington, action was dismissed March 21. On March 31 the Com-missian issued a nemorandum and order on NRDC's request for re- .,,

consideration, again. ruling that

[ Continued]

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23 .

STATUS CASE CASE

SUMMARY

NROC, et al. v. Seamans, et al. the waste tanks at issue did

16. not require licensing under

[ Continued] .

' section 202(4) .of the EPA.

After extensions of time to accommodate new counsel for plaintiffs, plaintiffs filed their motion for sumary judg-ment April 25 and the United States cross-moved for sunanary judgment on May 16.

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SUMMARY

. STATUS CASE

17. New England Coalition on FILED: October 6, and November 18, 1976 In No. 75-1469 NECNP filed a ACTION: NECNP has petitioned the First motion for summary _ reversal on -

Huclear Pollution v. NRC, Circuit for review of_the Com- October 6. He noved to dis--

et al. (1st .Cir. No. 76- miss the petition for review 1469) mission's October 5 order direct-ing review of ALAB-349, the and filed our supporting and Appeal Board decision suspending memorandum on October 13. -

the Seabrook construction per- Public Service Company of-mits on fuel cycle grounds. NECNP New Hampshire has also opposed New England Coalition on claims that the Commission's direc- petitioner's motion for sum-Huclear Pollution _ v. NRC_ mary reversal. The motions tion of review was illegal for Ti st Cir. , No. 76-1525) failure to state reasons, and that are now ready for a court the Commission's' stay rule does ruling, as are-suppleir. ental not comport with judicial motions-to dismiss'en moot-standards. NECNP also seeks ness grounds in light of the -

review of Commission's November 5 Commission's Hovember 5 Sea-order overturning the Appeal Board's brouk decision. On.Hovem-suspension of the Seabrook con- ber .18 petitioner moved to struction permit. consolidate No. 76-1469 with No. 76-1525, which challenge the ConmissionS November 5 order overturning the Appeal Board's suspensior,of the Seabrook' construction permit ,

on_ fuel cycle grounds. We opposed consolidation and asked.the court to rule on

, the pending motions to dis- ,

i miss. On December 21 the First Circuit ordered the cases consolidated and, by  ;

1 agreement of- the parties,  ;

held in abeyance pending the D.C. Circuit's fuiing on petitioners' notion to

[ Continued]

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25 ._

CASE'

SUMMARY

STATUS CASE clarify the court's Ockober 8

17. New Eng % f e-C ition on stay of nnndate in the fuel Nuclear Poilution_v. NRC l' cycle cases. On February 17

[ Continued] the D.C. Circuit denied peti-

. tieners' motion for clarifi-cation. In view of that denial, the Supreme Court's grant of certiorari in the fuel cycle cases and publi-cation of the interim S-3 rule, it is extremely unlikely

~

that the First Circuit will act favorably on petitioners' cases.

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, 26 . ;

CASE CASE

SUMMARY

STATUS

18. Virginia Elet.iric & Power FILED: November 12 and 29,1976 The certified index of the record was Co. v. HRC (4th Cir. , No. ACTION: VEPC0 and the North Anna filed December 14. On December 10 the 76-2275 Environmental Coalition have Fourth Circuit consolidated these cases petitioned the Fourth Circuit and on December 20 the State 'of Virginia

'and to review the Commission's was allowed to intervene. Petitioners' North Anna opinion which im- briefs were filed February 22. Curs.

North Anna Environmental posed a $32,500 fine on the was filed March 28. Basically we argue Coalition v. NRC (4th utility for false statemer;ts that -the $32,500 civil penalty assessed Cir., No. 76-2331) concerning geologic faulting against VEPC0 was proper; that an intent at the site. to deceive is not a necessary element- of an actionable falso statement; that the materiality of the statement must be

  • judged' from the point of view of an NRC employee reviewing the utility's appli- ~

cation for a. power plant license, not the i lay public's understanding; and that omission of information can constitute a false statement. Oral argument has not yet been scheduled.

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27 .

1 STATUS CASE CASE

SUMMARY

February 14, 1977 The certified index to .the

19. William M. Young, et al. FILED:

Petitioners are seeking review of record was filed March 28.

v. NRC (D.C. Cir. No. ACTION: Petitioners obtained an exten-December 15 and 21 Licensing Board 77-1181) orders which authorized the issu- sion of time to file their brief, which was served May 23.

ance of 'an LWA-2 for TVA's Harts- .

ville facility. They claim that Our brief is due June 27.

the Commission erred in authorizing licensing based on proposed revi-

~

sions to Table S-3, and that in any event the Licensing Board should not have summarily disposed of their contention that those S-3 values tilted the NEPA cost / benefit, balance -

against an LWA.

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CASE CASE

SUMMARY

STATUS

! 20. Tennessee Valley Authority v. FILED: February 17, 1977 The complaint was filed Feb- ,

I;RC(E.D.Tenn.No.177-35) ACTION: TVA has filed suit in federal ruary 17, 1977. TVA would not district court seeking a negotiate a settlement of the declaratory judgment that NRC lawsuit. Consequently, on lacks statutory authority to April 20 we moved to dismiss.

order TVA to cease-and desist .the complaint on jurisdictional i from removing structures from- grounds and invoked as well' the .

the Phipps Bend site without court's discretion to decline i prior NRC approval. TVA _

declaratory relief. On May 13-  !

claims that the TVA Act author- TVA sought sunnary judgment'and izes it alone to determine TVA opposed our motion to dismiss.

land acquisition and property On May 26 we asked'the court to .l management activities, and that defer consideration of TVA's the current Phipps Bend activi- substantive motion for sunnary . ,!

tier fall within that area. judgment and rule first on our -

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notion to dismiss.

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l STATUS C SE

SUMMARY

CASE FILED: February 25, 1977 On March 8 the Tenth Circuit

21. Citizens Action for Safe An. environmental group is seek- denied petitioners' request-Energy, Inc. v. NRC (10th ACTION: for a temporary injunction.

ing court of appeals' review of Cir. No. 77-1136) the Appeal Board's 2-page order The certified index to the in ALAB-370 regarding Black-Fox record was filed April 7. We Units 1 and 2. The Appeal Board filed a motion to dismiss dismissed as interlocutory peti- the petition for review as inter-locutory on April 22. Peti-tieners' claim that the Licens- tioners opposed this on April 28 ing Board had denied them dis-_ and the matter is ~ now pending covery on certain issues and had erroneously refused to compel decision.

i

~the joinder as parties to the proceeding of the Bureau of -

. Indian Affairs of the Depart- -

. ment of the Interior and the Cherokee Indian Nation. Peti-tieners are also seeking a  !

temporary injunction against' further NRC proceedings pending

. court of appeals' disposition of their claim.

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CASE

SUMMARY

STATUS CASE

22. John Abbotts, et al. FILED: April 11, 1977 Our time to answer the com-ACTION: John Abbotts, PIRG, and NRDC, have plaint has been extended by
v. HRC (D.D.C. No. stipulation until June 13 at 77-624) brought an FOIA suit challenging an NRC decision rendered about a which time we will also file year ago withholding certain safe- a detailed. affidavit explain-guards documents. The. safeguards ing the basis for withholding documents involved fall into three the. documents which plaintiffs categories: (1) records relating are seeking. The staff is pre-to the HMSS program for on-site sently evaluating whether the reviews of SSNM facilities ini- passage of time has obviated tiated in early 1976, (2) records the reasons for withholding '

concerning the HMSS investigation some of the documents.

and review of NFS, ERWIN in late

  • 1975 and early 1976; and (3)-

studies done for or relating to NRC's Special Safeguards Study and the Draft Safeguards Supple-ment.

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CASE FILED: May 3,1977 Our answer to the complaint'is due

23. Natural Resources Defense _

Council, Inc. , et al . v. ACTION: On May 3, NRDC, the Central Clear- to be filed July 11. We may move ing House of New Mexico, and two to dismiss the complaint before NRC, et al. (D. New Mexico, No. 77-240-B) individuals filed suit against that time for failure to state a NRC and the New Mexico Environ- claim upon which relief can be mental Improvement Agency seek- granted. Our arguments would be ing to enjoin operations of that New Mexico's grant of a license United Nuclear's Church Rock was State action to which NEPA does '

Mill which NMEIA licensed May 3. not apply, and that the compatibility The suit alleges violations of provision of Section 274 does not NEPA and the Atomic Energy Act. require that the State assess the The gist of the complaint is environmental consequences of cach that neither'NRC nor New Mexico of its licensing by means of an has prepared an environmental environmental impact statement. We impact statement 'or the Church ee also w rking with New Mexico Rock Mill. Plaintiffs cont 0 d for inclusion of license conditions that New Mexico, as signatory to which NRC would impose on uranium a section 274 State Agreement mill licensees.

to regulate radioactive mater-ials, is exercising federal power and therefore must comply with NEPA. They also contend .

that NRC's continuing review .

powers over State programs con-stitutes sufficient federal in- '

"olvement to call for preparation  :

of an EIS. Second, plaintiffs argue that, in order to comply with section 274, State programi must be " compatible" with the .

NRC program and that compatibility requires preparation of an EIS where NRC would prepare one in a non-agreement State. NRC cur-rently prepares an EIS for each new milling license and first m = - n1 . , , + . .

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SUMMARY

STATUS CASE ,

FILED: March 4, 1976. NRC has filed a motion for summary 3 1. Union of Concerned Scien- judgment supported by a detailed tists, et al. v. NRC, et ACTION: Freedom of Information Act suit al., Civil No. 76-0370 to compel disclosure of Hanauer/ affidavit claiming Exemption 5 Montzing memoranda. privilege. Plaintiffs sought to (0.D.C.) depose Dr. Hanauer, but on our motion for a protective order "

plaintiffs' attempt to depose

' Dr. Hanauer was halted by the Court. Plaintiffs then filed extensive interrogatories. We answered some, objected to others, and plaintiffs moved to compel further answers. On August 30 we opposed that motion. On November 5 Judge Flannery sustained our objections. In accordance with the schedule established in that order, plaintiffs filed their 1 opposition to our motion for  ;

summary judgment and cross moved i

on November 29. He replied on i

December 9. Oral argument was held December 20. On February 1 Judge Flasinery issued an opinion .

granting our sevmary judgment motion as to a limited number of the documents but ordering irl -

camera inspection as to the re-

- mainder. lie ruled that factual material must be disclosed on a

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SUMMARY

STATUS CASE  !  :

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!!RDC v. NRC, No. 76-0592 FILED: April 12, 1976. 'Our answer has been f iled.-- .0n June 22'

2. NRC filed a motion to dismiss or in (0.D.C.) ACTION: Freedom of Information Act suit to compel disclosure of GESMO docu- the alternative for sun: nary judgment.

On July 9 plaintiff filed a brief in- j; ments.

opposition to our motion. On Octo--  !

ber 13 Judge Bryant ordered in, [

camera inspection of the documents -;-

in order to determine whether the withheld documents were exempt under l- ,

Exemption 5 of the FOIA. On April 14 i Judge Bryant rendered his- decision' .

affirming NRC on some 60 of the 80 documents at issue. -

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. STATUS- .

3. Nestinghouse Electric FILED: May 13,1976 Our brief was filed October 4, Corp. v. NRC (3rd Cir., ACTION: Westinghouse petitioned fo" re- and Hestinghouse filed.its reply on No. 76-1611) view of Commission amendnent . October 18. The court heard tral to rules of practice on treat- argument Jar.uary ll,1977. On March 22 ment of trade secrets or con- the Third Circuit issued a 23-page fidential commerciii or finan- opinion ruling that RRC had sta?utory cial information on grounds authority to disclose proprietary that the amendment. jeopardizes information and dismissing the facial its ability to protect such challenge to NRC's rule on disclosure information from disclosure of proprietary information.

to its competitors.

4. Concerned Citizens of FILED: December 2, 1976 A hearing on plaintiffs' application Rhode Island, et al. v. . ACTION: A local environmental organiza- for a temporary restraining order was Nuclear Regulatory tion has filed a complaint seek- held December 13. We submitted a Commission (D.R.I. CA irg to enjoin the Nuclear Regula- memorandum in opposition. After oral 76-0520) tory Commission from taking .any argument, the court denied the TRO, further steps to process the ruling from the bench. On January 31 application of New England we moved to dismiss the complaint for Power Company to construct two lack of subject matter jurisdiction.

reactors at the former Plaintiffs coposed that motion on naval station at Charlestown, February 18. Our answers to plain-Rhode Island. The site is pre- tiffs' interrogatories were filed sently administered by the General March 31. On April 4, the district Services Administration. The court heard argument on our motion to complaint claims that the Atomic dimiss the complaint, and we filed a Energy Act precludes the NRC supplemental memorandum to dismiss.

from acting on an application After hearing oral' argument, on April 19 where the utility does not own Judge Pettine declined to interfere the construction site. Plain- with the Conmission's environmental tiffs also claim that NRC staff review and dismissed the complaint in review will violate NEPA by a 23-page opinion holding that plain--

- unduly influencing GSA's NEPA tiffs must await an adverse final inquiry into possible sale of order and then seek' judicial review the site to private parties in the courts of appeals.

Other than the utility. .  : . ,.

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SUMMARY

On February 23 we filed our FII.ED: January 3, 1977 opposition to plaintiffs'

5. Cincinnati Gas & Electric _ ACTION: A number of utilities are seeking a .

Co., et al. v. Nuclear _ reduction in NRC license fees. They motion for_ a preliminary

- Reoulatory Commission, assert that under the. Independent' . injunction. together with.a.

et al._ (D.D.C. No. 76- Offices Appropriation Act of 1952 motion to dismiss the com-- t-2376) only some 5%'of NRC's costs can be plaint. We argued thet the  ;

NRC fee schedule is valid,  :-

passed on as license fees. Plain-' that only the court of  !

tiffs have requested an injunction appeals can rule it invalid,  ;.

against further collt. : tion of fees, 'and that plaintiffs are not-  ;

refunds of fees previously collected, being injured by-the current  ;.~

and a court order imposing the lower On March 15 Judge  ;

fee schedule they propose, schedule.

Gesell heard oral argument .l

- and dismissed plaintiffs' complaint from the bench. .He agreed with our position that -

only. the court of appeals can P pass upon the-validity of HRC's,

- fee schedule. It is doubtful '

that plaintiffs will press their case in the court of l appeals, especially if as i~

anticipated a revised fee schedule is in place by August or September.

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CASE

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l Jerry Di Giovanni T/A_ FILED: December 3, 1976 The lawsuit was originally J6.

Jerry's Commercial Art ACTION: Plchtiff is seeking $500 from an filed in the Small Claims ,4 U

NRC employee claiming that that Division of D.C. Superior

v. Robert McKinney b sum was the agreed price for six Court (No. SC26471-76). Since (D.D.C. No. 77-0003) this is a suit against a ' '

logos which plaintiff furnished

' the AEC in 1971. federal officer, on January 13 ,

s T we removed it to federal dis- ll trict court pursuant.to 28 U.S.C. 1442. We then filed a motion to dismiss the com- -

plaint on the ground that it (-

is barred by the three-year F D.C. stutute of limitations. ,

Plaintiff opposed that .I motion arguing that the con- j tract claim arose in 1974, . !

" not 1971. On March 3 the i

- district court dismissed the  !

complaint agreeing with us that it was barred by the statute of i-limitations. .

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7. City of Louisville, et al. FILED: February 7, 1977 The court heard argument on
v. MC (W. O. Ky. , fio. ACTI0ti: The City of Louisville and other plaintiffs' motion for a C-77-0053-L(B)) goveramental units are seeking to temporary restraining order overturn an ex parte Appeal Board and pre iminary injunctio'n, order (ALAB-371) which instructed and denied the motions from the Licensing faard that the ab-~ the bench February S. On

..; sence o? co-owners i~ rom the Marble March 7 the court adopted our Hill application did not necessi- proposed findings of fact and tate postponement of the hearings conclusions of law as its on matters independent of the order denying the motion, and ownership issue. dismissed the complaint.

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