ML20238F250
| ML20238F250 | |
| Person / Time | |
|---|---|
| Issue date: | 08/19/1987 |
| From: | Briggs W NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Kane N AMERICAN LAW INSTITUTE - AMERICAN BAR ASSOCIATION |
| Shared Package | |
| ML20238F203 | List: |
| References | |
| FOIA-87-573 NUDOCS 8709160044 | |
| Download: ML20238F250 (14) | |
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August 19, 1987 Ms. Nancy Kane Assistant Director American Law Institute-American Bar Association Committee on Continuing Professional Education 4025 Chestnut Street Philadelphia, PA 19104
Dear Ms. Kane:
Enclosed are an update biography and study materials entitled "NRC Judicial Developments."
J These are for your use in connection with the ALI-AJA Course of Study, " Atomic Energy Licensing and Regulation" to be held September 14-15, 1987 at the vista International Hotel in Washington, D.C.
Very truly yours William H. Brig
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Solicitor Office of the General Counsel
Enclosures:
- 1) Biography
- 2) Study Materials FO 1 A-573
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WILLIAM H. BRIGGS, JR.
Business Address:
Solicitor Nuclear Regulatory Commission 1717 H Street, N.W.
Washington, D.C.
20555 (202) 634-1465 Professional Memberships:
Di'trict of Columbia Unified Bar s
(since 1972)
North Carolina Bar Association (since 1969)
EXPERIENCE Solicitor August, 1984 -
Nuclear Regulatory Commission Present Supervise all litigation in which the NRC is a party and personally handle the most significant litigation involving the agency.
Defend NRC in rulemaking and licensing challenges based upon, inter alia, Administrative Procedures Act, the Atomic Energy Act, and the National Environmental Policy Act.
Represent agency and its employees in wide variety of general litigation such as contract, tort, and employment related actions.
Frequent lecturer to various groups interested in legal issues related to nuclear power and litigation developments concerning NRC practice and procedure, i
Assistant United States Attorney November, 1976 -
Civil Division August, 1984 District of Columbia (Senior Litigation Counsel --
January, 1981 - August, 1984)
Represented United States, its agencies, and employees in wide variety of civil lawsuits involving procedural and substantive attacks on I
various agency rules and regulations, international law, constitutional claims, the Freedom of Information Act, the Privacy Act, the Sunshine Act, Title VII employment discrimination, (both class actions and individual suits), age discrimination, personal injury, wrongful death, seizure and forfeiture cases, and enforcement actions brought to obtain compliance with administrative subpoenas.
Wrote office litigation manual on defending Title VII class actions brought against the government.
Supervised, reviewed pleadings, and advised other office attorneys in handling class action employment cases and Bivens,aor constitutional tort, cases.
Developed, supervised, and was principle lecturer at three-day course for government attorneys entitled
' Equal Employment _ Opportunity:
Class Actions and Statistics."
Frequently lectured to senior government officials and government attorneys on Bivens actions.
Developed and presented numerous lectures to government attorneys on trial practice and litigation strategy.
Associate 1971 - 1976 Steptoe & Johnson Washington, D.C.
Engaged in a general Washington law practice with strong emphasis on litigation.
Handled a wide variety of matters including anti-trust, bankruptcy, EEOC and Title VII, Fair Credit Reporting Act, general corporate advice and litigation, warranty and products liability issues, def amation, insurance medical malpractice, personal injury, real estate, and zoning.
United States Army 1969 - 1971 Field Artillery Officer Defended and prosecuted over forty-five (45) general and special court martial trials as a
trial attorney with the Office of the Staff Judge Advocate, 101st Airborne Division, South Vietnam, from March, 1971 - August, 1971.
EDUCATION Duke Law School J.D.
1969 Duke University Durham, North Carolina Graduated with honors; scholarship student; Duke Law Journal staff (second year); editorial board (third year); winner of Am Jur book award in constitutional law (second year); authored three pieces for Duke Law Journal; winner of faculty award for outstanding student contribution to law review, 1969 Duke Law Journal 291 (third year).
Davidson College A.B. History 1966 Davidson, North Carolina J
NRC JUDICIAL DEVELOPMENTS RECENT NRC DECISIONS (SEPTEMBER, 1986--AUGUST, 1987)
The Perry Litigation 1.
Ohio Citizens for Responsible Energy v. NRC, 803 F.i.d 258 (6th Cir. 1986) (Martin, Milburn, and Jones) 1 In a 2-1 decision the Sixth Circuit joined a long line of unbroken precedent and held that the final decision in an NRC licensing proceeding was the order granting or denying the license.
It thus dismissed, for lack of jurisdiction, a pre-licensing attack on a Commission decision denying OCRE's motion to reopen the record to consider the effects of a January, 1986 earthquake on the Perry facility.
The majority (Martin and Milburn) found that the denial of a motion to reopen the record was an interlocutory ordet.
Because Section 189 of the Atomic Energy Act, 42 U.S.C.
S 2239, coupled with the Hobbs Act judicial review provisions, 28 U.S.C.
5 2342, gives courts jurisdiction to review only final orders of the NRC, absent unusual circumstances, not present here, courts have no jurisdiction to review interlocutory orders.
The availability of review of any final order granting 1
a license provided OCRE with ample protection in the event the Commission's refusal to reopen the record was erroneous.
The dissent (Jones) would have found jurisdiction under the Cohen collateral order doctrine.
He concluded that the denial of a motion to reopen, if erroneous, deprived the movant of a right to participate in a licensing proceeding.
He argued that this "right" was independent of the licensing itself.
Accordingly, he I
would have considered the merits of the claim.
(As events later transpired Judge Jones would get the opportunity to do this.
He ruled against OCRE, albeit with less enthusiastic support for the Commission's action, in Ohio v. NRC, infra).
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Ohio V.
NRC, 812 F.2d 288 (6th Cir. 1987) (Martin, i
Milburn, and Jones) i Subsequently the Commission voted to issue a full-power operating license for the Perry plant. Immediately the State of Ohio joined OCRE in seeking a stay of the licensing action.
Ohio raised emergency planning claims, however, and took no position on OCRE's seismic concerns.
On November 13, 1986, the same panel that had heard OCRE v. NRC, supra, granted the requested stay, without an opinion, but issued an order creatly expediting the briefing of the case on the merite.
The case was briefed and argued before a different panel (Ryan, Engel, and Jones) on December 3, 1986.
On i
December 23, 1986, the stay was lifted, without an opinion.
Judge Jones dissented.
On February 24, 1987, the original stay panel issued this reported opinion explaining why it had issued its November 13 stay (which was now vacated).
At bottom the panel rested its stay o.1 the following proposition:
Though in this case the likelihood of a nuclear accident is concededly small, the potential severity is enormous.
The accident at Chernobyl has demonstrated that the injuries which could result are indisputably irreparable.
When compared to the mere economic loss which will result from a delay of full power licensing, it would be unconscionable to allow the full power
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license to issue absent adequate emergency preparedness plans.
It is difficult to visualize particular scenarios, but when dealing with a force as powerful as nuclear energy every effort should be made to minimize risks.
Id. at 291.
The agency and the utility filed a rehearing petition based on two principles:
first, in view of the fact that it deals with a vacated stay order of no continuing legal effect, the decision is an i
advisory opinion; second, the " advice" it purports to give is wrong.
Predictably the rehearing petition was denied.
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Ohio v. NRC, 814 F.2d 258 (6th Cir. 1987) (Ryan, Engel, and Jones) i Shortly after the stay panel's decision, supra, on March 17, 1987, the merits panel issued an opinion by U
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Judge Ryan which upheld the licensing of the Perry plant on the merits.
The court found that the NRC's refusal to reopen the record on OCRE's seismic contentions was consistent with established NRC 1
practice and precedent.
The court described OCRE's clains as ' palpably lacking in proof,' and stated that the judicial role in passing on NRC decisions whether to reopen the record on technical issues was quite limited.
It found no abuse of discretion on the part of the NRC.
As noted above, Ohio mounted a different attack on the Perry license.
Shortly before the licensing proceeding was concluded, in September, 1986, Ohio sought leave to intervene in the proceeding to raise emergency planning concerns.
The state's contention was that after a January earthquake and the Chernobyl accident, it developed a number of concerns regarding emergency planning.
Accordingly, it stated, Governor Celeste decided to form a ' blue ribbon panel
- to issue a report on emergency planning.
The state wanted the NRC to delay licensing Perry until after the panel could issue its report, expected to be by the end of the year.
Subsequently, the state broadly described the emergency planning concerns which its panel was developing.
The agency refused to allow Ohio to intervene at such a j
late stage and also refused to delay the Perry license in the face of Ohio's vague concerns.
It offered to work closely with the state to improve emergency planning at Perry and it explained why the few specific concerns raised by Ohio did not undercut its finding of reasonable assurance regarding the Perry emergency plan.
The court stated that the NRC had neither ignored Ohio's contentions nor acted unreasonably in denying the State leave to intervene as a party to the proceeding.
The court found Ohio's newfound misgivings about the emergency plan to be ' troubling,' but insufficient to undercut the NRC's finding of
' reasonable assurance.'
Judge Jones, the only common fact in all the Perry cases, concurred in the bottom line, but only because he felt constrained to do so by the narrow scope of j
review which he was required to apply, j
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Other Court Decisions 4.
Citizens Association for Sound Energy v. NRC, F.2d
, No. 86-1169 (D.C. Cir. June 26, 1987)__
(McGowan, Bork, and Starr)
This unusual case arose out of the failure of the utility constructing Comanche Peak to make a timely request for an extension of the construction completion date.
The Court unanimously affirmed the Commission's refusal to halt construction on the Comanche Peak f acility while opponents to the operation of that plant litigated over whether it was proper to grant the utility a license amendment extending the completion date for the plant's construction.
(Judge McGowan wrote the opinion).
The Court held that the passage of the completion date in a construction permit did not automatically require a forfeiture of all rights under that permit and an application for a new permit.
Rather, the Court held, the original permit could be amended and the issues to be litigated could be limited to matters that were relevant to that amendment.
These holdings adopted the NRC's position (and that of the intervening utility) in the case.
The NRC (and the utility) had further argued that no prior hearing was necessary for an amendnent that only extended the construction completion date because such an amendment raised 'no significant hazards considerations.'
The Court refused to role on this so called Sholly question, however.
Instead, it held that CASE, the party requesting a pre-amendment hearing on the extension, had not made a proper request to litigate any matter relevant to the extension before that extension had been granted.
As the Court saw the matter, ' CASE did not seek the hearing to which it might have been entitled under section 189(a), but instead attempted to take advantage of a fortuitous circumstance to raise arguments relevant to TUEC's application for an operating license."
Id. at 5-7.
5.
UCS v. NRC, 57) F.2d
, No. 85-1757 (D.C. Cir.
August 4, 19 (Mikva, Edwards, and Williams)
The D.C. Circuit struck down the Commission's backfitting rule in a decision written by Judge Mikva.
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Judge Williams concurred.
Although it vacated the I
rule, the Court rejected UCS's central argument and refused to rule on UCS's subsidiary challenges.
Moreover, the Court adopted the NRC's view of the law and its philosophical approach to backfitting.
Seizing on some ambiguous language in the Statement of Considerations which accompanied the rule, the Court remanded the matter to the Commission for further consideration.
The Court held, in accordance with the NRC's position, that the agency has the authority to impose two levels
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of safety requirements on the industry.
The first l
1evel is the mandatory requirement of " adequate protection to the public health and safety" which is l
required by Section 182 of the Atomic Energy Act.
In establishing and enforcing this level economic costs cannot be considered.
In addition, however, the 1
Commission has the discretionary authority to require additional safety measures to be taken by the industry in order to " minimize danger to life and property."
Sections 161(b) and (i).
In exercising its
' minimization" discretionary authority the Commission may consider economic costs.
This bifurcated analysis was the heart of the Commission's backfitting rule and its argument to the Court.
UCS, on the other hand, argued that there was l
only one standard--adequate protection--which the NRC l
could require, and that costs could never be considered by the agency in deciding whether to impose additional safety requirements on the industry.
The Court squarely rejected this argument.
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What troubled the Court, and what ultimately led to its remand, was the fact that in promulgating the rule the I
Commission stated in two sentences of its lengthy Statement of Considerations that if it ever changed the level of what constitutes ' adequate protection" it l
would consider costs in so doing.
The Court found this statement to be inconsistent with the requirement that the level of adequate protection must be determined independent of economic costs.
Accordingly, it remanded the matter to the NRC to make clear that adequate protection was to be established and enforced l
without regard to cost.
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Judge Williams' concurring opinion found much of the Court's holding to be unnecessary since it elevated to case law a proposition which the Commission did not contest in this case--i.e., in determining and enforcing " adequate protection" economic cost would not be considered.
He agreed to the remand for further explanation by the Commission because he agreed that the Statement of Considerations language which indicated that costs would be considered in the event of changes in the level of adequate protection seemed inconsistent with this proposition.
6.
Eddleman v. NRC, F.2d
, No. 87-1018 (4th Cir.
August 10, 1987) (Chapman, Phillips, Ervin)
In a unanimous decision authored by Judge Chapman the Fourth Circuit affirmed the NRC's grant of a full-power operation license for the Shearon Harris Nuclear Power Plant.
In so doing the court ruled in favor of the Commission on three claims.
First, it rejected petitioners' challenges to the Commission's immediate effectiveness procedures.
Petitioners argued that they were entitled to the full panoply of APA procedural rights before any immediate effectiveness decision, including notice and a hearing with the right to cross-examine witnesses and to present rebuttal evidence.
Second, the court rejected petitioners' assertion that i
they had a right to a hearing on the issues presented in an eleventh hour 2.206 petition which they filed shortly before the Commission vote on Shearon Harris.
In this regard the court found no fault with the Commission's resolution of the 2.206 issues on the basis of the staff's presentation at the immediate i
effectiveness meeting.
Finally, the court determined that the agency's grant of the applicant's request for an exemption from one of its emargency planning rules was lawful.
The applicant conducted a successful full-participatory emergency planning exercise one year and seven months prior to the licensing decision.
At that time Commission regulations required such an exercise to be held within one year prior to licensing (the requirement has since been changed to within two years prior to the licensing).
The applicant requested a regulatory
exemption from the NRC staff.
Petitioners requested an evidentiary hearing on that exemption request, and the matter was referred to the Commission.
The Commission ultimately denied the hearing request because petitioners were not able to identify any factual issues to be resolved at an evidentiary hearing.
The court affirmed the Commission's action in the face of several procedural and substantive attacks.
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PENDING SIGNIFICANT NRC CASES User Fees Litigation 1.
Commonwealth Edison Co. v. NRC, No. 85-2928 (7th Cir.) (Eschbach, Wood, and Coffey)
This case challenges one aspect of a 1984 NRC rule which increased the amount of license fees that would be charged to utilities seeking an operating license.
Under the Independent Offices Appropriations Act, 31 U.S.C. 5 9701, the NRC's license fees are based on the cost to the agency of reviewing an operating license application.
Since its 1978 rule the NRC has provided a cap or ceiling on the amount of the fee which it charges.
Among other things, the 1984 rule increased the fee ceiling significantly.
Further it provided that fee bills for those utilities whose charges had reached the 1978 ceiling, but who had not yet obtained an operating license and paid their license fee, would be recalculated under the new ceiling.
Commonwealth Edison challenged the operation of this rule as impermissible imposing a retroactive I
fee upon it.
A secondary, but very important, issue which the agency raised in defense of the case is a jurisdictional argument.
Commonwealth Edison is, in reality, making a facial attack on an NRC rule outside of the 60-day Hobbs Act time limit for filing such actions.
28 U.S.C. 5 2344.
We argued that the time limit was jurisdictional and could not be extended.
Commonwealth Edison argued that an unlawful rule could always be attacked when it was applied, and that since it had filed its suit within 60 days of the application of the unlawful rule at issue here its suit was timely.
On May 15, 1987, the Court (Eschbach for a unanimous panel) issued an opinion which accepted the agency's view on this jurisdictional issue and dismissed Commonwealth Edison's petition.
Commonwealth Edison Co. v. NRC, 819 F.2d 750 (7th Cir. 1987).
Shortly thereafter Commonwealth Edison sought rehearing.
The Court asked for a response from the agency.
On July 12, the panel granted that rehearing petition and vacated its May 15 opinion.
It gave no reason for its i
action and no clue as to what it will do next.
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2.
Florida Power & Light v. NRC, No. 86-1512 (D.C.
Cir.) (Robinson, R. Ginsburg, and Starr)
The Consolidated Omnibus Budget Reconciliation Act of 1985 (" COBRA"), among other things, requires the NRC to collect through annual charges approximately 33% of its budget from user fees.
To implement COBRA the NRC promulgated its Part 171 user fee rule which charges i
each power reactor licensee a little less than one million dollars for fiscal year 1987.
This is the lead case of three consolidated actions in which over thirty utilities challenge the NRC's Part 171 user fee rule.
The utilities argue that the NRC has not properly interpreted COBRA; that, if it has, the statute is an unconstitutionally delegated tax; and that the agency violated the APA by giving only a 15-day comment period 1
and by not providing adequate supporting materials for public comment.
Oral argument is scheduled for September 21, 1987.
Licensing Related Cases 3.
Toledo coalition for Safe Energy v. NRC, No.
86-4085 (6th Cir.) (Boggs, Engel, and Billman) l This case, consolidated with another action brought by the State of Ohio, raises the recurring and still unanswered issue of whether the NRC's denial of a 2.206 petition requesting enforcement action against a licensee is judicially reviewable.
We have argued that such refusals to take enforcement action are not judicially reviewable and in support of our position we rely on Heckler v. Chaney, 105 S. Ct. 1649 (1985).
Substantively the case raises the same emergency planning concerns raised by the State of Ohio in the Perry licensing suits, supra; procedurally, however, the Perry case arose in a different context than this
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action.
In this case, the petitioners seek to keep a licensed facility (Davis-Besse) from operating because of their concerns about alleged emergency planning problems.
Recognizing the different procedural posture of this case from the Perry action, the Sixth Circuit refused to stay the restart of Davis-Besse.
After expedited briefing it heard oral argument on January 5, j
1987.
We are still awaiting the decision.
Mill Tailings Litigation
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Uranium Environmental Subcommittee v. NRC, No. 86-2089 (10th Cir.)
The petitioner purports to be an organization of i
uranium mining and milling companies with operations in l
It seeks judicial review of the NRC's i
reassertion of regulatory authority over mill tailings.
That action occurred after New Mexico relinquished i
regulatory authority which it had previously been given j
pursuant to the NRC Agreement. State program.
The i
petitioner argues that the NRC's action was Section 189 l
licensing activity which entitled it to a hearing on the matter.
In addition to responding to its challenge i
on the merits, the NRC has challenged the standing of this phantom organization which refuses to divulge the identity of those members for whom it allegedly speaks I
in this lawsuit.
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Quivira Mining Company v. NRC, No. 85-2853 (10th Cir.)
Environmental Defense Fund v. NRC, No. 86-1235 (10th Cir.)
These two cases challenge, from different sides, the NRC's regulation of uranium and thorium mill tailings.
The industry petitioners argue that the NRC's regulations do not make the proper weighing of costs and benefits which is required by the Uranium Mill Tailings Radiation Control Act, are so inflexible as to be arbitrary and capricious, improperly treat thorium and uranium identically, and unlawfully require financial guarantees to ensure future mill tailings
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containment.
The environmental petitioners argue that the agency has unlawfully failed to promulgate required ground water protection regulations and has improperly claimed the authority to approve site specific mill I
tailings containment measures which do not meet EPA general standard.
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