SECY-22-0006, Enclosure - Litigation Status Report
| ML22025A182 | |
| Person / Time | |
|---|---|
| Issue date: | 01/25/2022 |
| From: | Andrew Averbach NRC/OGC |
| To: | Jeff Baran, Christopher Hanson, David Wright NRC/OCM |
| Averbach A | |
| Shared Package | |
| ML22025A177 | List: |
| References | |
| SECY-22-0006 | |
| Download: ML22025A182 (11) | |
Text
LITIGATION STATUS REPORT (As of January 24, 2022)
ACTIVE CASES1
Balderas v. NRC, No. 1:21-cv-00284-JB-JFR (D.N.M.)
On March 29, 2021, the State of New Mexico filed an action in d istrict court challenging the legality of the ongoing licensing proceedings for the conso lidated interim storage facilities proposed by Holtec International and Interim Storage Partners (ISP). New Mexico raises many of the same legal arguments under the Nuclea r Waste Policy Act, the Atomic Energy Act, and the National Environmental Policy Act th at the parties, including New Mexico, have raised in proceedings before the agency and/or the D.C., Fifth, and Tenth Circuits, as described below in the descriptions of the Beyond Nuclear and Dont Waste Michigan cases. On June 17, 2021, the Department of Justice, represent ing the NRC, filed a motion to dismiss the case for lack of jurisdictio n, arguing that, under the Hobbs Act and the Atomic Energy Act (AEA), New Mexico is requ ired to present its arguments in the form of contentions to the Commission and, if it is dissatisfied with the result of the adjudication before the agency, to seek judicial review before a court of appeals. New Mexicos arguments, the motion contends, are ther efore unexhausted and in the wrong court. New Mexico filed an opposition to the moti on on July 19, 2021; the NRCs reply was filed on August 16, 2021. A hearing on the mot ion to dismiss was held on January 20, 2022, and the agency awaits a decision from the court.
CONTACT: Andrew P. Averbach, OGC 301-415-1956
Berka v. NRC, No. 21-1134 (D.C. Cir.)
This case challenges the agencys denial of a petition for rule making (PRM-50-117), in which the petitioner sought to streamline the process to reacti vate nuclear power plants that have shut down. The agency denied the petition on May 3, 2021, determining that there was neither a need to streamline the process nor a demand by licensees for new procedures. The petition has been fully briefed and the agency awaits a decision from the D.C. Circuit. The court will not hold oral argument.
CONTACT: Jennifer Scro, OGC 301-287-9081
Beyond Nuclear v. NRC, No. 20-1187 (D.C. Cir) (consolidated with Dont Waste Michigan v.
NRC, No. 20-1225, Sierra Club v. NRC, No. 21-1104, and Fasken Land & Minerals Ltd. v. NRC,
No. 21-1147)
This case concerns Holtec Inter nationals application for a license to operate a consolidated interim spent fuel storage facility in Lea County, New Mexico. Beyond Nuclear and Dont Waste Michigan (on behalf of several other co-petitioners) filed sepa rate petitions for review, which were consolidated by the court, challenging the Commissions de cision in CLI-20-4 that (a) as to
1 For statistical purposes, we counted as active any case pending before a court, or still subject to further judicial review, as of January 1, 2022. However, the narratives accompanying the cases listed in this report include any post-January 1 developments.
Enclosure Beyond Nuclear (and Sierra Club and another set of petitioners known collectively as Fasken),
rejected a contention that issuance of the license, inasmuch as it would permit the storage of fuel to which the Department of Energy holds title, would viola te the Nuclear Waste Policy Act (NWPA); and (b) as to Dont Waste Michigan, rejected a variet y of contentions under the AEA and the National Environmental Policy Act (NEPA). On July 6, 2020, the NRC and the United States moved to hold the case in abeyance due to the ongoing ad judicatory proceedings before the Commission concerning contentions raised by Sierra Club and Fasken and the possibility that the license either might not be issued or might not permit action that Beyond Nuclear claims is illegal. The court granted the motion on October 8, 2020, a nd directed the parties to file motions to govern further proceedings within 30 days of the com pletion of proceedings before the agency. On April 16, 2021, Sierra Club filed a petition fo r review challenging both CLI-20-4 and CLI-21-4, which resolved the additional contentions that Si erra Club had raised; and on June 25, 2021, Fasken filed a petition for review challenging t he resolution of its contentions, including the Commissions decision in CLI-21-7. All of the pe titions have since been consolidated by the Court. Although the adjudicatory proceedin gs before the agency are complete, the license for the facility has not been issued and the agency and the United States reported to the Court on April 29, 2021, that they understand t he petitions for review to remain in abeyance pursuant to terms of the Courts October 8, 2020, orde r. No party expressed a contrary viewpoint, and the court kept the case in abeyance and further directed the NRC to file quarterly status reports and the parties to file motions to gov ern further proceedings within 30 days of the completion of proceedings before the agency.
CONTACT: Andrew P. Averbach, OGC 301-415-1956
Braxton v. Hanson, No. 20-cv-1126-AGB (N.D. Ga.)
This is a claim for retaliation under the Title VII of the Civi l Rights Act brought in March 2020 by a current NRC employee. An amended complaint was filed on Augu st 21, 2020. Discovery is complete, and the agency has moved for summary judgment. The p arties consented to the referral of the case to a U.S. Magistrate Judge, and they await his decision on the motion.
CONTACT: Elva Bowden Berry, OGC 301-287-0974
Criscione v. NRC, No. 19-cv-02087-CBD (D. Md.), affd, No. 20-2320 (4th Cir.), cert. denied, No.21-813 (S. Ct.)
On July 16, 2019, Lawrence Criscione, an NRC employee, filed a complaint asserting whistleblower retaliation in the U.S. District Court for the Di strict of Maryland. Mr. Criscione alleged that the NRC illegally retaliated against him and depri ved him of his right to petition Congress. Mr. Criscione had filed a complaint in 2014 with the Department of Labor (DOL) containing many of the same allegations he raised in district c ourt, but, because DOL did not finally resolve his claim within one year, he sought de novo consideration of his claims in district court pursuant to 42 U.S.C. § 5851(b)(4). On December 6, 2019, the Department of Justice
filed a motion to dismiss the case, asserting, among other thin gs, that the United States had not waived its sovereign immunity with respect to claims against the NRC arising under the Energy Reorganization Act, and that certain alleged instances of retal iation alleged in the complaint were barred by the statute of limitations. On October 6, 2020, after Mr. Criscione had filed an amended complaint, the district court granted the motion to dis miss on sovereign immunity grounds, agreeing that the Energy Reorganization Act, despite p rohibiting retaliation, does not unequivocally provide a right to sue the NRC. Mr. Criscione ap pealed the decision to the U.S.
Court of Appeals for the Fourth Circuit, which suspended briefi ng pending resolution of Peck v.
NRC, discussed below, in which the same sovereign immunity issue w as raised. On May 3, 2021, following a decision by the Fourth Circuit in Peck that adopted the Governments sovereign immunity argument, the court affirmed the decision of the district court, and it subsequently denied a petition for rehearing en banc. Mr. Criscione and Dr. Peck filed a petition for a writ of certiorari to the Supreme Court on November 29, 2 021. The Government waived its right to oppose the petition, and the Court denied the petition for certiorari on January 24, 2022.
CONTACT: Vinh D. Hoang, OGC 301-287-9196
Dont Waste Michigan v. NRC, No. 21-1048 (D.C. Cir.) (consolidated with Beyond Nuclear v.
NRC, No. 21-1056, Sierra Club v. NRC, No. 21-1055, Fasken Land and Minerals, Ltd. v. NRC,
No. 21-1179, Beyond Nuclear v. NRC, No. 21-1230, Sierra Club v. NRC, No. 21-1227, and Dont Waste Michigan v. NRC, No. 21-1231); Sierra Club v. NRC, No. 21-1229
Texas v. NRC, No. 21-60743 (5th Cir.) (consolidated with Fasken Land and Minerals, Ltd. v.
NRC)
Balderas v. NRC, No. 21-9593 (10th Cir.)
These petitions relate to the application of ISP for a license to construct a consolidated interim storage facility in Andrews County, Texas. The NRC iss ued the license for the facility on September 13, 2021.
D.C. Circuit On February 2, 2021, Dont Waste Michigan and several other env ironmental groups (referred to as Joint Petitioners in proceedings before the B oard and Commission) filed a petition for review challenging the Commissions decisions in C LI-20-13 and CLI-20-14 in the D.C. Circuit. The petition was consolidated with a petitio n for review brought by Beyond Nuclear as well as a petition for review challenging CLI 15 brought by Sierra Club. In its three decisions, the Commission upheld the Atomic Safety and Licensing Boards determinations that each of the petitioners had failed to proffer an admissible contention. On March 5, 2021, with the consent of the parties, the court placed the cases in abeyance. On August 20, 2021, Fasken Land & Minerals filed a petition for review of the Commissions decisions in CLI-20-14 and CLI-21-9, which the court consolidated with the other petitions. The parties filed motions to govern futur e proceedings on October 12, 2021, proposing a briefing schedule that calls for the filing o f briefs in the winter and spring of 2022. The court granted the motion, though it has since sus pended briefing.
On November 15, 2021, Dont Waste Michigan, Beyond Nuclear, and Sierra Club filed petitions for review of the agencys issuance of the license (a s opposed to the adjudicatory decisions that denied admission of their contentions); Fasken d id not file such a petition in the D.C. Circuit but, as discussed below, it did file one in th e Fifth Circuit. The court consolidated these petitions with the ones that had been previo usly filed and placed them on the same (now-suspended) briefing schedule. Dont Waste Mic higan and Sierra Club also jointly filed a petition challenging the Environmental Imp act Statement and the Record of Decision for the ISP facility, which the NRC has moved to co nsolidate with the others; the petitioners have opposed that request, which remains pendin g.
Fifth Circuit On September 23, 2021, Texas (including the Governor and the Te xas Council on Environmental Quality) filed a petition for review of the issua nce of the license. The NRC filed a motion to dismiss the petition, asserting that Texass failure to participate in the adjudicatory proceedings precluded the court from exercising ju risdiction under the Hobbs Act. The court issued an order on November 19, 2021, indicatin g that it would carry the motion with the case and will consider the jurisdictional argum ents along with the merits.
On November 15, 2021, Fasken filed a petition for review of the issuance of the license, asserting violations of NEPA. On December 2, 2021, the NRC fil ed a motion to dismiss the petition for lack of jurisdiction (because the license is n ot independently appealable),
or, in the alternative, to transfer the case to the D.C. Circui t. On December 21, 2021, the court issued an order indicating that the motion would likewise be carried with the case.
The briefs of Texas and Fasken are due on February 7, 2022, and the NRCs brief will be due 40 days after those briefs are filed.
Tenth Circuit On November 15, 2021, New Mexico filed a petition for review of the issuance of the license, even though, like Texas, it did not participate in the adjudicatory proceedings before the agency. On December 8, 2021, the NRC filed a motion to dismiss the proceeding for lack of jurisdiction (and, specifically, failure to exhaust administrative remedies). The motion has been fully briefed, but, like the Fi fth Circuit, the court has stated that it will consider the jurisdictional issues with the merits of the case.
Briefing is expected to be completed during the spring of 2022.
CONTACT: Andrew P. Averbach, OGC 301-415-1956
Kandel v. United States, No. 06-cv-872 (Fed. Cl.)
This is a class-action suit brought against the United States b y federal retirees seeking additional retirement benefits on account of the mishandling of annual leave at the time of retirement. The parties prepared a stipulation with respect to certain agencies, including NRC, for which sufficient information concerning the calculation of damages has been provided, and a partial settlement agreement has been reached. The proceedings remain ongoing.
CONTACT: Elva Bowden Berry, OGC 301-287-0974
Ki v. NRC, No. 20-cv-00130-GHH (D. Md)
Plaintiff-employee filed a complaint against the NRC in U.S. Di strict Court for the District of Maryland asserting claims of racial discrimination and a racial ly hostile work environment. The complaint seeks unspecified amounts in compensatory damages and other damages, court costs, expenses, attorneys fees, prejudgment interest and post -judgment interest as well as any other relief the court deems proper. The court denied the a gencys motion to dismiss or, in the alternative, for summary judgment, and the parties are enga ged in discovery.
CONTACT: Laura Shrum, OGC 301-287-9128
Kotzalas v. NRC, No. 20-cv-02926-PWG (D. Md.)
On October 9, 2020, Margaret Kotzalas, now a former NRC employe e, filed a sex discrimination and retaliation complaint in the U.S. District Court for the Di strict of Maryland. Ms. Kotzalas alleges that the NRC retaliated against her after she engaged i n protected activity. In August 2021, the Department of Justice filed a motion to dismiss on ti meliness grounds. The agency awaits a decision from the court on this dispositive motion.
CONTACT: Jeremy Suttenberg, OGC 301-287-9154
Nevada v. NRC, No. 09-1133 (D.C. Cir.)
This petition for review challenges NRCs Yucca Mountain Rule, 10 C.F.R. Part 63, which implements an Environmental Protection Agency (EPA) rule establishing standards for reviewing the Yucca Mountain repository application. Given the suspension of adjudicatory proceedings before the Commission related to Yucca Mountain and the uncertainty surrounding the Yucca Mountain project (including the lack of new appropria tions from Congress from the Nuclear Waste Fund), the case, as well as a companion case brou ght against EPA challenging the EPA standards, has been held in abeyance, subject to period ic status reports, since 2010.
In these reports, the parties have advised the court of the res umption of the licensing process following the issuance of a writ of mandamus in In re Aiken County, 725 F.3d 255 (D.C. Cir.
2013), but they have continued to advise the court that the future of the project remains uncertain.
CONTACT: Jeremy M. Suttenberg, OGC 301-287-9154
Ohio Nuclear-Free Network v. NRC, No. 21-1162 (D.C. Cir.)
On August 2, 2021, Ohio Nuclear-Free Network and Beyond Nuclear filed a petition for review challenging a license amendment that was issued on June 11, 202 1, concerning the license for the American Centrifuge Plant. The amendment permits the opera tion of a cascade of uranium enrichment centrifuges and the production of high-assay low-enr iched uranium. Neither of the petitioners requested a hearing with respect to the license ame ndment. The NRC filed a motion to dismiss the case on September 20, 2021, asserting that the c ourt lacks jurisdiction because the petitioners, having not participated in the proceeding, wer e not parties aggrieved within the
meaning of the Hobbs Act. The court elected to refer the motio n to the merits panel considering the case. Briefing is expected to be completed during the spri ng of 2022.
CONTACT: Eric V. Michel, OGC 301-415-0932
Oglala Sioux Tribe v. NRC, No. 20-1489 (D.C. Cir)
On December 4, 2020, the Oglala Sioux Tribe and Aligning for Re sponsible Mining filed a petition for review challenging the Commissions actions, culmi nating in CLI-20-9, relating to the issuance of a materials license to Powertech for the Dewey-Burd ock In Situ Uranium Recovery Facility. Before the Commission, petitioners raised a series o f arguments arising under the National Environmental Policy Act, the National Historic Preser vation Act, and the Atomic Energy Act. They had previously raised many of these arguments in a prior petition filed before the D.C. Circuit but, with the exception of their argument rela ted to the effectiveness of the license in the absence of a completed environmental impact stat ement, the court declined to hear them because no final agency action had been undertaken. The petitioners filed their brief on April 19, 2021, asserting that the agency erred in its resol ution of the petitioners contentions relating to cultural resources as well as its evaluation of var ious environmental impacts, as explained in, among other decisions, CLI-16-20 and CLI-20-9. T he agency filed its brief on June 3, 2021; Powertechs brief was filed on June 10, 2021; pet itioners filed a reply brief on July 1, 2021. Oral argument was held on November 9, 2021, and we aw ait a decision from the court.
CONTACT: James E. Adler, OGC 301-287-9173
Ohngo Gaudadeh Devia v. NRC, Nos. 05-1419, 05-1420, 06-1087 (D.C. Cir.)
This is the caption for three consolidated lawsuits filed in th e U.S. Court of Appeals for the D.C.
Circuit by dissident Goshutes and the State of Utah challenging a series of Commission adjudicatory decisions authorizing issuance of a license for th e proposed Private Fuel Storage (PFS) spent fuel storage facility. The case is fully briefed, but the court decided to hold the case in abeyance because PFS had failed to obtain necessary approval s from Department of the Interior (DOI) sub-agencies and the case was therefore not ripe for review. PFS went to federal district court to challenge the other agencies' decisions. PFS prevailed in 2010, obtaining a remand to DOI. Ever since, the parties have filed a series of joint status reports in the D.C.
Circuit agreeing that the case should remain in abeyance pendin g further developments. The case has now been administratively stayed, pending further deve lopments.
CONTACT: Grace H. Kim, OGC 301-287-9153
Peck v. Department of Labor, No. 20-1154 (4th Cir.), cert. denied, No.21-813 (S. Ct.)
On February 16, 2017, Dr. Michael Peck filed a whistleblower re taliation complaint under 42 U.S.C. § 5851 against the NRC before the Department of Labor (a nd, specifically, before the Occupational Safety and Health Administration). On December 19, 2019, the Departments
Administrative Review Board issued a decision affirming the dis missal of the complaint for lack of subject matter jurisdiction, ruling that Energy Reorganizati on Act does not constitute a waiver of sovereign immunity with respect to claims of whistleblower r etaliation brought against the NRC. Dr. Peck petitioned for review of the decision in the Fou rth Circuit, which issued an order on April 30, 2021, denying the petition and ruling, as the Gove rnment argued, that the United States had not waived its sovereign immunity for claims of this type. The opinion of the court contained language indicating a retaliation claim could be brou ght against individual agency employees responsible for whistleblower retaliation, and, on Ju ne 14, 2021, the Government filed a petition for rehearing requesting that the court strike this language. The court granted this petition and issued an order striking the language at issu e on June 21, 2021; and, on July 13, 2021, it denied Dr. Pecks petition for panel rehearing and rehearing en banc. Dr. Peck and Mr. Criscione jointly filed a petition for a writ of certiorari to the Supreme Court on November 29, 2021, challenging the Fourth Circuits determination. The Gove rnment waived its right to oppose the petition, and the Court denied the petition for cert iorari on January 24, 2022.
CONTACT: Michael R. Gartman, OGC 301-287-0716
Tafazzoli v. Hanson, No. 8:19-cv-00321-DLB (D. Md.)
On February 3, 2019, Sheiba Tafazzoli, a former NRC employee, a ppealed a Final Agency Decision against her on a constructive discharge claim in the U.S. District Court in the District of Maryland. In addition to constructive discharge, she alleged g ender, color, and disability discrimination, hostile work env ironment, retaliation for previ ous protected activity, and failure to provide reasonable accommodations. On December 6, 2019, the De partment of Justice filed a motion to dismiss or for summary judgment. On November 30, 2020, the court dismissed seven counts, related to claims of disparate treatment and hostile wo rk environment, with prejudice. Ms. Tafazzolis constructive discharge claim was di smissed without prejudice for failure to exhaust administrative remedies. Three other counts survived the motion to dismiss, including two alleging retaliation and one alleging failure to accommodate. Discovery on these three counts remains ongoing.
CONTACT: Garrett Henderson, OGC 301-287-9214
CLOSED CASES
Aguirre v. NRC, Nos. 19-cv-495-BAS-BLM, 19-cv-587-BAS-BLM, 19-cv-1102-BAS-BLM (S.D.
Cal.); affd, No. 21-15777 (9th Cir.).
On March 15, 2019, Michael J. Aguirre filed a complaint in fede ral district court challenging the agencys treatment of two requests made under the Freedom of In formation Act (FOIA) for documents related to spent fuel storage at San Onofre Nuclear G eneration Station (SONGS),
and, specifically, certain documents related to spent fuel cani ster misalignment and the discovery of shim pins in an empty canister. The NRC denied Mr. Aguirres request for expedited processing and administratively closed his requests f or failure to make an advance payment for the materials requested and to respond to a request for clarification.
Mr. Aguirre filed a second complaint on March 29, 2019, in whic h he challenged the agencys response to a second FOIA request related to SONGS (in which Mr. Aguirre had requested communications between Southern California Edison (SCE) and the agency concerning enforcement action taken following a 2018 spent fuel canister m isalignment incident). Mr.
Aguirre made the FOIA request on March 19, 2019, and requested that the agency provide the requested material in advance of a March 25, 2019, webinar, in which he intended to participate. While the agency informed Mr. Aguirre that it wou ld not honor his request for expedited treatment, it nonetheless completed the production. Mr. Aguirre filed a third complaint on June 12, 2019, challenging the agencys response t o a FOIA request for documents reflecting consultations with SCE concerning any prop rietary interest SCE may have in the documents he previously requested from the agency. The agency produced the requested documents. The Department of Justice filed motions t o dismiss the first two complaints on June 13, 2019, asserting that Mr. Aguirre had not exhausted his administrative remedies before the agency and that his claims were premature. It filed a motion to dismiss the third complaint on August 26, 2019, asserting that Mr. Aguirre had not exhausted his administrative remedies and that, in any event, the case was moot. The court issued orders resolving the motions on February 18 and 19, 2020. In the firs t and second cases, the court granted summary judgment, ruling that Mr. Aguirre had failed to exhaust his administrative remedies. In the third case, the court dismissed the complaint but granted Mr. Aguirre leave to amend within 21 days to the extent he can show that he has suf ficiently exhausted his administrative remedies. On March 13, 2020, Mr. Aguirre filed an amended complaint in the third case, challenging the agencys response to three addition al FOIA requests that had not previously been challenged but, again, not demonstrating that h e had exhausted his remedies with respect to any of his requests. On March 24, 2020, the De partment of Justice moved to dismiss the amended complaint or, in the alternative, for summa ry judgment, asserting failure to exhaust and that the amendment was not within the scope of the courts order granting leave to amend. The third case was dismissed on May 1, 2020. Mr. Aguir re appealed the decisions in each of the cases to the Ninth Circuit, which consolidated the cases. The Ninth Circuit affirmed the district courts decisions on August 8, 2021, agreeing that in each case, Mr. Aguirre had failed to exhaust his administrative remedies. The deadline fo r Mr. Aguirre to seek a writ of certiorari expired on November 6, 2021.
CONTACT: Andrew P. Averbach, OGC 301-415-1956
Friends of the Earth v. NRC, No. 20-1026 (D.C. Cir)
On January 31, 2020, Friends of the Earth, Natural Resources De fense Council, and Miami Waterkeeper filed a petition for review challenging the i ssuance of a second license renewal of the operating license for Turkey Point Nuclear Gener ating Units 3 and 4.
Although the proceeding before the Atomic Safety and Licensing Board Panel related to the license renewal has been terminated and the Commission has resolved one of the issues raised by petitioners (concerning the applicability of t he Generic Environmental Impact Statement for reactor license renewals beyond an initial renewal term), appeals of other aspects of the Boards decisions remain pending before th e Commission. The NRC filed a motion to dismiss for lack of finality on March 23, 202 0. On June 8, 2020, the court referred the motion to dismiss to the merits panel and directed the parties to address in their briefs the issues presented in the motion to dismiss. Fr iends of the Earth filed its brief on July 27, 2020; the NRC filed its brief on September 14, 2020 ; and a reply was filed on October 23, 2020. Oral argument had been scheduled for Februar y 17, 2021, but the court informed the parties that it would decide the case withou t oral argument, and on March 4, 2021, it issued a decision dismissing the case because, as the NRC had argued in both its motion to dismiss and in its brief, the petition fo r review was incurably premature. The deadline for Friends of the Earth to seek revie w before the Supreme Court expired on June 2, 2021.
CONTACT: Eric V. Michel, OGC 301-415-0932
Nuclear Energy Institute v. NRC, No. 19-1240 (D.C. Cir.)
On November 15, 2019, the Nuclear Energy Institute (NEI) filed a petition for review challenging the agencys conclusion, expressed in Regulatory Issue Summary 2016-11 and reaffirmed in a letter dated September 16, 2019, that the agency, rather than A greement States, must approve requests from reactor licensees made pursuant to 10 C.F.R. § 20.2002 to dispose of low-level radioactive waste. The NRC filed a motion to dismiss on Februa ry 10, 2020, arguing that the agencys reaffirmation of its prior decision did not constitute final agency action reviewable under the Hobbs Act because the agencys interpretation of the regulation, to the extent it is challengeable at all, was articulated more than sixty days prio r to the filing of the petition for review and had not been reopened as a result of NEIs request, made by letter, that the NRC reconsider its position. NEI filed its opposition on March 11, 2020; the NRC filed its response on April 2, 2020. On June 2, 2020, the court issued an order d irecting that the parties include arguments related to jurisdiction in the briefs and directed th e clerk to issue a briefing schedule. NEI filed its brief on September 30, 2020; the NRC f iled its answering brief on January 8, 2021; and NEI filed a reply on February 8, 2021. Or al argument was held on April 8, 2021, and on May 4, 2021, the Court issued a per curiam order d ismissing the case for lack of jurisdiction. It ruled that the agencys letter of September 1 6, 2019, did not have legal effect, in and of itself, sufficient to constitute reviewable agency actio n under the Hobbs Act because it did not articulate a position that the agency had not previousl y expressed. The court did not reach the merits of the agencys position under 10 C.F.R. § 20. 2002. NEI did not file a petition for rehearing and the deadline for NEI to seek review before th e Supreme Court expired on August 2, 2021.
CONTACT: Jennifer Scro, OGC 301-287-9081
Public Watchdogs v. NRC, No. 3:19-cv-01635-JLS-MSB (S.D. Cal), affd, No. 19-56531 (9th Cir.); cert. denied, No. 20-1676 (S. Ct).
On August 29, 2019, Public Watchdogs filed a complaint, togethe r with a request for a temporary restraining order, challenging the agencys 2015 issu ance of a license amendment regarding SONGS Units 2 and 3 and the use at SONGS of a dry cask storage system manufactured by Holtec International and maintained by S outhern California Edison (SCE). Public Watchdogs raised claims against the NRC under the Administrative Procedure Act and against SCE, Holtec, and others under Califor nia law, and sought to suspend future loading of spent fuel into the Holtec system. T he court did not issue immediate relief and directed that the defendants respond. On September 6, 2019, the Department of Justice filed a motion to dismiss the claim again st the NRC for lack of jurisdiction, asserting that the case arose as a challenge to a licensing decision under the Hobbs Act, 28 U.S.C. § 2342, and that, as such, it could only h ave been brought in the court of appeals within sixty days of issuance of the amendment. On September 10, 2019, the Department of Justice filed a separate response to the requ est for injunctive relief, reasserting its jurisdictional arguments and contending that Pu blic Watchdogs could not succeed on the merits, had failed to establish irreparable harm, and that the safety concerns that it raised were properly brought to the agency via a petition under 10 C.F.R.
§ 2.206 or 2.802. The other defendants also filed responses on September 20, 2019, asserting that the state law claims were barred for lack of jur isdiction and because they are preempted by the Atomic Energy Act, and arguing that permitting fuel loading to continue would not cause irreparable harm. A hearing on the outstanding motions was held on November 25, 2019, and the court issued a decision on December 3, 2019, dismissing the complaint with prejudice. The court found that the majority of the agency actions that Public Watchdogs challenged were reviewable solely under the Ho bbs Act or were time-barred, and that the remainder were either enforcement decision s that were unreviewable as a matter of law or raised arguments that Public Watchdogs la cked standing to bring.
The court also dismissed the claims against the private defenda nts for failure to state a claim upon which relief could be granted. On December 31, 2019, Public Watchdogs appealed the district courts decision to the Ninth Circuit. O ral argument was held on June 3, 2020. On December 29, 2020, the court issued an order affir ming the district courts determination that it lacked jurisdiction to consider the alleg ations in the complaint against the NRC because they were either challenges to the NRCs licens ing decisions or incidental to licensing and therefore required to be raised dir ectly in the Court of Appeals under the Hobbs Act within 60 days. Public Watchdogs did not s eek review before the Supreme Court of the dismissal of the claims against the NRC. It did, however, seek review of the dismissal of the claims against the private defen dants, and the Supreme Court called for the views of the Solicitor General concerning the grant of certiorari. The Solicitor General filed a brief on behalf of the Government opp osing certiorari on November 1, 2021, and, on December 6, 2021, the Court denied Pu blic Watchdogs petition.
CONTACT: Andrew P. Averbach, OGC 301-415-1956
Public Watchdogs v. NRC, No. 20-70899 (9th Cir.)
On March 30, 2020, Public Watchdogs filed a petition for review challenging the agencys decision to decline Public Watchdogs request, made pursuant to 10 C.F.R. § 2.206, that the agency suspend decommissioning operations at San Onofre Nuc lear Generating Station (SONGS). The following day, Public Watchdogs filed a r equest for temporary injunctive relief, seeking the same relief while the petition f or review was pending. Public Watchdogs asserted that the agency had abdicated its statutory responsibility by permitting fuel to be stored in canisters that Public Watchdogs contends are unsafe and by approving a decommissioning plan for the site that assumes that the Department of Energy will commence accepting spent fuel at some point during this decade and will remove all spent fuel by 2049. The court denied the motion for injunctive relief on April 30, 2020, and directed the parties to file briefs on the merits. The court heard oral argument on September 1, 2020. On January 13, 2021, the court dismissed the petition for review on the ground that Public Watchdogs failed to overco me the presumption that the NRCs denial of the § 2.206 petition is unreviewable and, i n particular, that Public Watchdogs failed to demonstrate that the agency had abdicated i ts statutory authority to protect the public health and safety. The deadline for Public Watchdogs to seek review before the Supreme Court expired on April 14, 2021.
CONTACT: James E. Adler, OGC 301-287-9173
New York v. NRC, No. 21-1037 (D.C. Cir. (consolidated with Riverkeeper, Inc. v. NRC, No. 21-1080 and Town of Cortlandt v. NRC, No. 21-1084)
On January 22, 2021, the State of New York filed a petition for review challenging the Commissions decision in CLI-21-1 denying admission of New York s contentions related to the transfer of the operating license for Indian Point Units 1, 2, and 3 to Holtec International. The petition al so challenged the NRCs November 23, 2020, order provisionally approving the tr ansfer and an exemption issued by the agency the same date pertaining to the use of the Indian Point decommissioning trust fund. The petition was consolidated with petitions for review brought by Riverkeeper a nd the Town of Cortlandt challenging the same decisions. The petitioners asserted that the agency violated the Atomic Energy Act, the Administrative Procedure Act, and unspec ified NRC regulations and policies.
On April 15, 2021, the petitioners and the current and former l icensee announced a global settlement of their dispute, which required approval by the New York State Public Service Commission. On May 28, 2021, the petitioners filed, and on Jun e 3, 2021, the D.C. Circuit granted, a motion for the voluntarily dismissal of each of the three petitions for review, thus ending the litigation.
CONTACT: Andrew P. Averbach, OGC 301-415-1956