ML20202B573
| ML20202B573 | |
| Person / Time | |
|---|---|
| Issue date: | 02/04/1998 |
| From: | Cordes J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| References | |
| SECY-98-019, SECY-98-019-01, SECY-98-019-R, SECY-98-19, SECY-98-19-1, SECY-98-19-R, NUDOCS 9802120052 | |
| Download: ML20202B573 (10) | |
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ADJUDICAkbRY ISSUE i
tomarv4.,998 SECY-98-019 FOR:
The Commission (InfOrmatlOn)
FROM:
John F. Cordes, Jr.
Solicitor
SUBJECT:
ANNUAL REPORT ON COURT LITIGATION (CALENDAR YEAR 1997)
PURPOSE: To inform the Commission of the Status of Litigation in the Courts DISCUSSION:
Attached is a report updating NRC court litigation since my last report dated January 17,1997 (SECY 97 016). This report reflects the status of NRC cases in court as of February 3,1998. As I informed the Commission offices earlier this year, we now are reporting on court litigation annually rather than semi annually.
During the reporting period (calendar year 1997), the Comruission or its officials were sued once 5
in the courts of appeals,' and three times in fedual district courts.' During this same one-year period ten cases were closed.8 We also handled twenty requests (so-called "Touhv" requests) for NRC testimony, depositions or other evidence for use in private litigation in 1997.
(
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t n} F. Cordes, Jr.
A S licitor
Attachment:
Litigation Report NOTE: TO BE MADE PUBLICLY AVAILABLE IN 5 WORKING DAYS FOMt THE DATE OF THIS PAPEP
' Citizens Awareness Network v. NRC, No. 97-4388 (2d Cir.).
2 Ma v. Jackson. No. PJM 96-3850 (D. Md.); Jones v. Jackson. No. 97 C-3087 (N.D. Ill.);
Ferm v. Atlas Co._rn., No. CV-8-97-00589-HDM (S.D. Nev.).
3 Ma, bey v. NRC. Nos. 95-1399 & 95-1402 (D.C. Cir.): Morris v. NRC, No. 97-3067 (Fed. Cir.);
People of the State of Illinois v. NRC, No. 96-1125 (D.C.Cir.); Revtblatt v, NRC, No. 95-1578 (D.C. Cir.); Toledo Coalition for Safe Enemy v. NRC, No. 95-1590 (D.C. Cir.); Ferm v. Atlaji Com., No. CV 8-97-00589-HDM (S.D. Nev.); Fuhrmeister v. NRC. No. CV 000048196 (State District Court, Montgomery County, Pa.) (removed to fede al district court); tipiden v. NRC, No.
931628 (D.D.C.); United States v. Construction Products Research. Misc. No. 394M 112AHN (D. Conn.).
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LITIGAT.ON STATUS REPCPT As of February 4,1930 ACTIVE CASES American Collene of Nuclear Physicians v. NRC. No. 94-1787 (D.C. Cir., filed December 30,.
1994)
CONTACT: Steve Crockett 415 1620 On December 2,1994, the NRC purAlshed a final rule on radiopharmaceuticals that is " intended
' to provide greater flexibility by allowing property qualified nuclear physicians greater discretion to prepara radioactive drugs containing byproduct material for medical use." 59 Fed.' Reg. 61767 (1994). Several weeks later the American College of Nuclear Physicians and the Society of Nuclear Medicine filed a petition for review in the District of Columbia Circuit.
The petition simply challenges the rule, without specifying the ground for the challenge, Petitioners apparently intend to focus on the compatibility determinations accompanying the rule.
The case has been held in abeyance for several years, at petitioners' request, pending finalization of the NRC's regulatmy guides. The parties are filing periodic status reports with the Court.
Cities of Benton v. NRC. No 95-1400 (D.C. Cir., filed Aug. ; 1995).
CONTACT: Grace H. Kim 415-3605 This lawsuit, originally consolidated with two other lawsuits under the captio7 of Caiun Electric Power Cooperative v. NRC was filed by a group of municipal utilities in Arkansas. The Qgyn suits (by this time known as Mabov, Cajun's bankruptcy trustee) ultimately were withdrawn as a c
result of a bankruptcy settlement.- The remaining petition for review challenges two NRC orders j
that allowed consummation c' a merger between Gulf States Utilities and Entergy. NRC approval was necessary because of GSU's ownership and operation of the River Bend nuclear 4
' power reactor.
The parties originally filed briefs in 1996, when Cajun and bankruptcy trustee Mabey still were
. pursuing relief. After they withdrew their challenge to the NRC merger-approval orders, the
- Arkansas utilities decided to conti.ie with an independent challenge to the NRC orders. Last t
fall, the court of appeals ordered +he parties to file fresh briefs. All parties did so, and the case now awaits decision. The principal issues are whether the NRC complied with a remand order of
- the court of appes's in a previous Caiun lawsuit and whether the NRC adequately considered the antitrust implications of the Entergy-Gulf States merger.
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Citizens Awareness Network v. NRC. No. 97-4368 (2d Cir., filed Dec. 24,1997)
L CONTACT: Peter Crane-415 1622 Last fall the Citizens Awareness Network (CAN) and the Nuclear Information and Resource Service (NIRS) filed a petition with the Commission demanding an adjudicatory hearing and an environmental review in connection with the decommissioning of the Haddam Neck nuclear power reactor. CAN and NIRS asked for immediate rescission of the NRC's 1996 -
- decommissioning rule on the ground that it illegally deprives citizens groups of a hearing opportunity on decommissioning and avoids the NRC's obligations under the National -
= Environmental Policy Act. Petitioners exfressly asked that their pet.%n D9.1 be treated as a petition for rulemaking or as a petition for relief under 10 C.F.R. $ 2.206.
At the Commission's direction, the NRC's General Counsel, Karen Cyr, si.nt a letter to counsel for petitioners pointing out that the agency could not lawfully rescind a duly-promulgated rule without undertaking a fresh rulemaking proceeding. Ms. Cyr's letter directed petitioners' attention to 10 C.F.R. $ 2.802, which allows members of the public to file a petition for rulemaking seeking revocation of NRC rules. Ms. Cyr's letter informed petitioners that the NRC would hold their petition in abeyance pending their decision whether to pursu a petition for rulemaking.-
Rather than seek further relief from the NRC, petitioners brought this lawsuit in the Second Circuit. We filed a motion to dismiss, arguing that the time had long since expired for a direct
- challenge to the NRC's 1996 decommissioning rule and that Ms. Cyr's letter holding the petition
-to rsscind the rule in abeyance was in no sense final agency action that a court may review.-
Faced with our moti_on to dismiss, petitioners apparent:y intend now to withdraw their lawsuit and file a pCition for rulemaking. We have not yet received their withdrawal motion or their petition for rulemaking.
Fariev v. Kerr-McGee. No. SR CV-04-95 (Navajo Nation District Court, Shiprock District, 3d party complaint filed July 10,' 1996)
CONTACT: Marjorie S. Nordlinger 415 1616 This suit, filed in a Navajo Nhon court, seeks damages from several corporations for injury and death allegedly resulting from radiation at a uranium milling facility near Shiprock, New Mexico.
The corporations, in tum, have filed a third-party complaint impleading the federal govemment, including the NRC, in an effort to obtain indemnification for any damages that are assessed.
The third-party complaint rests on the argument that the Shiprock mill operated as part of an Atomic Energy Commission procurement program. It is not clear why the third-party complaint names the NRC as a party, because DOE, not the NRC, succeeded the now-defunct AEC in areas like uranium procurement. It also is not clear that a Navajo Nation court possesses jurisdiction to adjudicate claims against the federal govemment.
The United States Attomey's office has submitted a letter to the tribal court denying any tribal court jurisdiction over the United States govemment; As yet, however, the case has reached no final resolution.
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General Atomics v. NRC, No. 95 70170 (9th Cir., filed September 15,1995)
CONTACT: Steve Crockett 415-1620 This petition for review, like a similar petition filed by the Sequoyah Fuels Corporation in the Tenth Circuit, challenges a rule that the Commission issued in July,1995, to clarify decommissioning funding obligations of nonreactor licensees. Petitioner, the subject of an NRC enforcement action arising out of a contaminated site in Gore, Oklahoma, apparently intends to argue that the Commission's new rule unlawfully imposes "new financial assurance requirements" retroactively.
This case has been consolidated with the Seouovah Fuelt case (which on our motion was transferred to the Ninth Circuit). The case c'arrently has I:een held in abeyance for several years because of the pendency at the NRC of administrative emorcement proceedings. Now that those proceedings have been settled, it is likely that this lawsuit will be withdrawn.
Ibrahim v. Jackson. Civil Action No. PJM-95-3737 (D. Md., filed December 7,1995)
CONTACT: Sandy Vora 415-1562 This lawsuit claims that plaintiff fe ed to win selection to an NRC position because of unlawful u
sex, age, and national-origin diser inination. We are working with the United States Attomey's office in Maryland in defending this suit. The district court granted summaryjudgment to the NRC, and the case now has been appealed to the Fourth Circuit, where it was recently argued and is awaiting decision.
Jones v. Jackson, No. 97-C-3087 (N.D. Ill., filed April 29,1997)
CONTACT: Ramon Suris-Femandez 415-1555 This complaint was filed by an NRC employee for alleged violationt of the Age Di crimination in Employment Act and the Rehabilitation Act in a promotion decision. We are working with the U.S. Attomey's office on this lawsuit. We expect to file a motion for summary judgment.
Little v. United States. No. L-94-2824 (D. Md., filed Oct. 12,1994)
CONTACT: Joseph Rutberg 415-1578 This is a Federal Tort Claims Act suit filed by a person claiming injuries resulting from the NRC's "failing to properly place and maintain... concrete fumiture (at its White Flint facility) such that it was safe to use and... failing to wam of the hazard in using sai;. fumiture." Plaintiff seeks
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$500,000 in damages from the govemment. The govemment has sought summary judgment, but the district court has not'yet ruled on the motion.
l l-We are working with the United States Attomey's office in this case, i
Ma v. Jackson, No. 96 3850 PJM (D. Md., filed December 10,1996)
CONTACT: Sandy Vora -
415-1562
- Two NRC employees bypassed for promotion filed this lawsuit seeking damages and injuncti_ve relief for alleged age and race discrimination. We are working with the United States Attomey's office on the case and expect eventually to file a motion for summary judgment.
Neifelt v. ~ Jackson. Nos. 96C-3081 & 96C-629 (N.D. Ill., filed May 23 L.d September 22,1996) 1 CONTACT: Sandy Vora 415-1E82 4
- These two lawsuits by an NRC employee allege agency violations of the Americar.3 with Disabilities Act and the Rehabilitation Act in conditions of employment. We are working with the -
' United States Attomey's office in defending both suits. The govemment likely will seek summary judgment in the near future.
Seouovah Fuels Corocration v. NRC. No. 95-9542 (10th Cir., filed September 18,1995)
CONTACT: Steve Crockett 415-1620 This peti %n for review, like a similar petition filed by General Atomics in the Ninth Circuit, challenges a rule that the Commission issued in July,1995, to clarify decommissioning funding.
obligations of nonreactor licensees. Petitioner, the subject of an NRC enforcement action arising out of a contaminated site in Gore, Oklahoma, apparently intends to argue that the Commission's new rule unlawfully imposes "new financial assurance requirements" retroactively.
The Tenth Circuit transferred this case to the Ninth Circuit, on our motion, where it has been consolidated with the GA lawsuit and held in abeyance pending NRC consideration of a settlement m NRC staff's enforcement action against Sequoyah Fuels. Now that the -
enforcement case has been settled, and all time for further review of it has expired, we anticipate that petitioners will withdraw this lawsuit.
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Thermal Science Inc. v. NRC. No. 4:96CV022S2-CAS (E.D. Mo., filed November 20, %96)
CONTACT:
Charles E. Mullins 415-1618 This lawsuit seeks to halt further NRC consideration of a proposed $900,000 civil penalty against Thermal Science, incorporated (TSI), a company that produces and sells to the nuclear industry a fire barrier product known as Thermo-Lag. The proposed penalty rests on sileged misrepresentations about the testing of Thermc Lag. The complaint points to TSl's acquittallast year on related criminal charges and argues that NRC pursuit of a civil penalty violates the Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution. The complair,t also argues that the NRC lacks statutory jurisdiction to assess civil penalties against non-licensees like TSI. Finally, the complaint contends that the basis for the proposed penalty here, the
" wrongdoer rule" (10 C.F.R. $ 50.5), also lies outside the NRC's statutory authority.
This case has moved slowly in the district court, largely because it was held in abeyance to await a Supreme Court decision in a double jeopardy case, Hudson v. United States. In December Hudson was decided, on terms largely favorable to the govemment. We now have moved to dismiss the lawsuit. TSI has renewed its motion for injunctive relief. The district court is holding an oral argunient on February 5,1998, and we anticipate a decision shortly thereafter.
.QLQSED CASES Form v. Atlas Corporation. No. CV.97-00589-HDM (D. Nev., filed May 14,1997)
CONTACT: Charles E. Mullins 415 1618 Plaintiff brought this lawsuit to challenge defendant Atlas's allegedly illegal storage of radioactive waste on the shore of the Colorado River. The lawsuit arises under RCRA and the Clean Water
. Act, among other statutes. The original suit named the NRC as a "real party in interest." We consulted with the U.S. Attomey's office on how to proceed. Subsequently, that office arranged for an exhange of correspondence making clear that the NRC was not considered a defendant in the suit. Accordingly, we are closing the case administratively.
Fuhrmeister v. NRC. No. CV-0000481-96 (State District Court, Montgomery County, Pa., filed Nov. 26,1996, removed to U.S. District Court, E.D. Pa., December 23,1996)
CONTACT:
Grace H. Kim 415-3605 An NRC employee brought this lawsuit to claim about $300 lost when his work assignments prevented him from taking annualleave. The lawsuit was filed in state court. At the request of the United States Attomey's office, we drafted papers to remove the case from state to federal court and to seek dismissal on sovereign immunity grounds. The case was removed to federal court, but plaintiff apparently has failed to prosecute it further. We therefore are closing the case administratively.
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6 Holden v. NRC. Civ. No. 93-1628 (D.D.C.) -
CONTACT: John F. Cordes-
.415-1600.
- Plaintiff in this Freedom of Information Act suit is pursuing a whistleblowing complaint against Gulf States Utilities before the Department of Labor. He sought access und 5e FOIA to GSU's
- 62 page response to an NRC " chilling effects" letter. The NRC granted the i ilA request shortly after the suit wa) filed. We sought dismissal of the lawsuit as moot, but plaintiff sought attomey's fees. The court has never acted on the attomey's fee request, and plaintiff appears not to be pressing the matter. We therefore are closing tb case administratively.
_ Mabov v. NRC. Nos. 951399 & 951402 (D.C. Cir., dismised in May 1997) -
CONTACT: Grace Kim 415-3605 These lawsuits, originally brought in the name of Cajun Electric Power Cooperative and later -
taken over by Ralph Mabey, Cajun's trustee in bankruptcy, challenged NRC orders allowing a merger between Gulf States Utilities and Entergy. Cajun, along with GSU, owned a share of the
- River Bend nuclear power reactor. Cajun ultimately went into bankruptcy, and as part of its bankruptcy settlement, it agreed to terminate all pending lawsuits challenging the GSU-Entergy merger. Hence, Mr. Mabey withdrew these lawsuits. A challenge to the NRC approval of the :
merger remains pending, however, under the caption of Cities of Benton v. NRC. No. 95-1400 (D.C. Cir.).-
Morris v. NRC, No. 97-3067 (Fed. Cir., decided October 15,1997)
CONTACT:
Karl Farrar-415 1569-
- This lawsuit was brought by the widow of a deceased former NRC employee and challenges an agency personnel action. The widow argued that the NRC violated whistleblowing protection laws in terminating the former employee. The lawsuit challenged a decision by the Merit Systems Protection Board, which upheld the NRC personnel action in full. On October 15,1997, The Federal Circuit (Newman, Plager & Schall, JJ.} iffirmed the MSPB decision in a one-sentence order.
People of the State of Illinois v. NRC. No. 96-1125 (D.C. Cir., dismissed May 16,1997)
CONTACT: Grace H. Kim 415-3605 This lawsuit, brought by the State of Illinois and the City of West Chicago, challenges a Commission decision (CLl-96-02) that terminated an adjudicatory proceeding as moot and vacated underlying Licensing Board and Appeal Board decisions. Petitioners apparently planned I
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to argue that after finding mootness, the Commission ought to have left the underlying decisions intact. Petitioners ultimately entered it..o a settlement agreement with an NRC licensee, Kerr-McGee, and dropped this lawsuit.
Revtblatt v. NRC. No 95-1578 (D.C. Cir., decided Feb. 7,1997)
CONTACT: Grace H. Kim i
415 3605 Petitioners, Dr Zinovy V. Reytblatt and the Ohio Citizens for Responsible Energy (OCRE),
wrought this ir Jit to challenge 1995 changes in 10 C.F.R. Part 50, Appendix J. The revised Appendix J established a new performance-based option for containment leakage rate testing.
The new rule provides for the retention of much leakage-rate test data at reactor sites.- In the rulemaking, the NRC rejected a charge by Dr. Reytblatt that it had designed the rule to " conceal" information. - The rule's statement of considerations pointed out that the most safety-sensitive information still must be submitted to the agency (and hence made public) and that on-site NRC inspections would ensure the integrity of the data.
Petitioners' lawsuit attacked only the information-reporting aspect of the new rule, not its merits, in early 1997, the court of appeals (Bucklev, Wald & Edwards, JJ.) issued a decision upholding the rule.
As a threshold matter, the court ruled that petitioners had " standing" to sue because their suit could lead to a meaningful remedy, La., a new rulemaking The court discounted petitioners' failure to challenge an earlier NRC rule reducing public t ccess to leakage-rate test data for
' Appendix J's " prescriptive" option. On the merits, howe /er, the court rejected petitioners' case in its entirety. The court found the NRC's brief discussion of the information issue " entirely adequate," in light of the " general" and " abusive" nature of the only public comment the agency i
received on information-reporting and in light of the rule's " primary focus" on the new '
performance based approach rather than on reporting requirements.
The court also held that the NRC was under no obligation to respond to Dr. Reytblatt's out-of-time comment that a lack of access to leakage-rate test results would prevent effective er9rcement petitions under 10 C.F.R. $ 2.206. The court stated that petitioners, if they wish, er M oetition for a fresh rulemaking to increase reporting of leakage-rate test results. The court a rooted that the NRC already was considering a general petition for rulemaking, filed by
' OCRE, seeking greater public access to licensee-held documents.
Petitioners unsuccessfully sought rehearing.
Toledo Coalition for Safe Enerav v. NRC. No. 95-1590 (D.C. Cir., decided Nov. 26,1996)
CONTACT:
Peter G. Crane '
415-1622 This lawsuit challenged use of the NUHOMS dry storage cask at the Davis-Besse nuclear power reactor in Ohio and at the Calvert Cliffs reactor in Maryland. The NRC approved use of that cask -
in an earlier rulemaking. The lawsuit alleged, among other things, that the users of the cask had made alterations without seeking amendment of their certificate of compliance.
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8 We moved to dismiss the lawsuit as premature. Petitioners had not brought their claims first to the NRC, as required by the NRC's judicial review provisions. The court of appeals (Silberman, Randolph & Rogers, JJ.) has issued a short order dismissing the case in its entirety. The court ruled that the Ohio petitioners' claim was not ripe because their grievance stik was before the NRC (via a paion under 10 C.F.R. $ 2.206). The court dismissed the Maryland petitioners' claim for lack of standing because the only agency acticn identified in the petition related to the Davis Besse petition. Petitioners sought no further review.
United States v. Construction Products Research. Misc. No. 394M-112AHN (D Conn.)
CONTACT: Charles E. Mullins 415-1618 This is a long running subpoena enforcement dispute between the NP.C and a Connecticut manufacturer of cement and grout used in NRC-licensed nuclear power reactors. The NRC sought employment records by subpoena to aid an investigation whether the grout manufacturer had retaliated against employees for raising safety concems about the company's products. The manufacturer has vigorously contested enforcement of the subpoena for about two years, arguing at every tum that the NRC lacked jurisdiction over non-licensees and that many of its employment records were covered by the attomey-client privilege.
The district court rejected the manufacturers arguments and issued an order enforcing the subpoena. The manufacturer took an appeal and unsuccessfully sought a stay pending appeal from the distfct court, from the court of appeals and the from Supreme Court. Despite its failure to obtain a stay, the manufacturer did not comply in full with the subpoena, and continued to withhold documents it considered privileged.
In January,1996, the court of appeals (McLauahlin. Newman & Altimari) issued a thorough opinion upholding the NRC's position on all points. See 73 F.3d 464 (2d Cir.1996). The court rejected the manufacturers contention that the NRC lacked authority to subpoena the records of
" mere suppliers," and concluded that "[i]n light of the historically expansive interpretation of an agency's power to investigate,... this subpoena lay well within the NRC's authority because it is the primary body responsible for nuclear safety." The court held that the NRC's enforcement jurisdiction over suppliers could be decided later,"[i]f and when the NRC decides to use the information obtained by tne subpoena." Finally, the court rejected the manufacturers attomey-client privilege claim as "not supported by the information provided." The Supren e Court subsequently refused to review the Second Circuit decision.
Even so, the cement manufacturer refused to comply fully with the NRC subpoena, and continued to invoke the attomey-client privilege. Working closely with the Department of Justice, we moved for a contempt order and for a writ of assistance to enforce the court of appeals decision. The district court denied our motion and subsequently refused to reconsider its denial.
The district court instead ordered the govemment to seek in camera judicial raiew of the disputed documents. We unsuccessfully sought review of this decision in the Second Circuit, which tumed down our mandamus petition without issuing an opinion. The district court, after its in camera review, subsequently found that the NRC was entitled to no additional documents, because all remaining documents were indeed privileged. We sought no further review.