SECY-25-0004, Enclosure - Litigation Status Report
| ML25013A195 | |
| Person / Time | |
|---|---|
| Issue date: | 01/13/2025 |
| From: | Andrew Averbach NRC/OGC |
| To: | Commissioners NRC/OCM |
| Shared Package | |
| ML25013A188 | List: |
| References | |
| SECY-25-0004 | |
| Download: ML25013A195 (7) | |
Text
Enclosure LITIGATION STATUS REPORT (As of January 13, 2025)
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 district court challenging the legality of the licensing proceedings for the consolidated interim spent fuel storage facilities proposed by Holtec International (Holtec) and Interim Storage Partners (ISP). New Mexico raised many of the same legal arguments under the Nuclear Waste Policy Act (NWPA), the Atomic Energy Act (AEA), and the National Environmental Policy Act (NEPA), that various parties, including New Mexico, raised in proceedings before the agency and before the Courts of Appeals for the D.C., Fifth, and Tenth Circuits in Beyond Nuclear v. NRC and Texas v. NRC, as described below. On June 17, 2021, the Department of Justice (DOJ), representing the U.S.
Nuclear Regulatory Commission (NRC), moved to dismiss the case for lack of jurisdiction, arguing that, under the Hobbs Act and the AEA, New Mexico was required to present its arguments in the form of contentions to the agency and, if dissatisfied with the result of the adjudication before the agency, to seek judicial review before a court of appeals. New Mexicos arguments, the motion contended, were therefore unexhausted and in the wrong court. The court granted the motion to dismiss on March 10, 2022, stating that an opinion would follow. To date, however, no opinion has been issued, and the case technically remains open.
CONTACT:
Andrew P. Averbach, OGC 301-415-1956 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)
Fasken Land & Minerals v. NRC, No. 23-60377 (5th Cir.), petition for cert. filed, No. 23-1352 (U.S.)
These cases concern Holtec Internationals application for a license to operate a consolidated interim spent fuel storage facility in Lea County, New Mexico. The NRC granted the license on May 9, 2023.
D.C. Circuit Beyond Nuclear and Dont Waste Michigan (on behalf of several other co-petitioners) filed separate petitions for review, which were consolidated by the court, challenging the Commissions decision in CLI-20-4 that (a) as to 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 (DOE) holds title, would violate the NWPA; and (b) as to Dont Waste Michigan, rejected a variety of contentions under the AEA and NEPA. On July 6, 2020, the NRC and the United States moved to hold the case in abeyance due to the ongoing adjudicatory 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, and directed the parties to file 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, 2025. However, the narratives accompanying the cases listed in this report include any post-January 1 developments.
motions to govern further proceedings within 30 days of completion of proceedings before the agency. On April 16, 2021, Sierra Club filed a petition for review challenging both CLI-20-4 and CLI-21-4, which resolved the additional contentions that Sierra Club had raised; and on June 25, 2021, Fasken filed a petition for review challenging the resolution of its contentions, including the Commissions decision in CLI-21-7. All of the petitions were consolidated by the court. Following issuance of the license on May 9, 2023, the parties jointly filed a motion to govern future proceedings. On June 16, 2023, the court removed the case from abeyance, set various procedural deadlines, and deferred consideration of additional issues, including setting word count limits for briefs and issuing a briefing schedule. The court held oral argument on March 5, 2024. On August 27, 2024, the court denied the petitions for review, finding the Commission did not act unreasonably or in a manner contrary to law when it denied the requests for intervention. On October 17, 2024, Beyond Nuclear filed a petition for rehearing and a motion to stay consideration of the petition pending the Supreme Courts disposition of Texas v. NRC (discussed below). The NRC took no position on the motion, and the court agreed to place the case in abeyance pending a final decision in Texas.
Fifth Circuit On July 27, 2023, Fasken filed a petition for review in the Fifth Circuit, challenging the issuance of the Holtec license itself, as distinct from the Commissions denial of its petition to intervene in the adjudicatory proceedings. On July 28, 2023, the NRC filed a motion to dismiss the petition, asserting that, under the Hobbs Act, the sole avenue for an entity denied party status to seek judicial review is to challenge the adjudicatory orders (in Faskens case, CLI-20-4 and CLI-21-7) that denied the entitys petition to intervene. In the alternative, the NRC moved to transfer the petition to the D.C. Circuit, where Faskens petition challenging the Commissions adjudicatory orders is pending. The court assigned the motion to the panel considering the case on the merits. Faskens filed a brief on October 2, 2023. The NRC moved to place the case in abeyance pending resolution of the petition for rehearing en banc in Texas v NRC, but the court denied the motion and ordered briefing to move forward. On March 27, 2024, the court issued an order granting the petition for review and vacating the license on the basis of its holding in Texas. The United States Solicitor General and Holtec each filed petitions for a writ of certiorari to the Supreme Court seeking review of the decision on June 25, 2024, and the Solicitor General requested that the petition be held pending disposition of its petition for a writ of certiorari in Texas. Fasken filed a response to the petition on August 26, 2024; replies were filed on September 11, 2024. The Supreme Court has not taken action on the petitions for certiorari.
CONTACT:
Andrew P. Averbach, OGC 301-415-1956
Beyond Nuclear v. NRC, No. 24-1318 (D.C. Cir.).
Beyond Nuclear and Sierra Club filed this petition for review on October 11, 2024, challenging the Commissions adoption of changes to 10 C.F.R. § 51.53. These changes codify, for purposes of NEPA, the impacts identified in NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, as the environmental impacts resulting from the operation of a nuclear power plant during an initial or subsequent renewal term. The Nuclear Energy Institute, and Florida Power & Light Company and NextEra Energy Point Beach, LLC, have been admitted to the case as Intervenors. Petitioners brief is due February 20, 2025; Respondents brief is due April 21, 2025; Intervenors brief is due May 5, 2025; Petitioners reply is due May 27; 2025; oral argument is expected in the fall of 2025.
CONTACT:
Andrew P. Averbach, OGC 301-415-1956 Kandel v. Unted States, No. 06-cv-872 (Fed. Cl.)
This is a class-action suit brought against the United States by 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 had been provided, and a partial settlement agreement was reached. On March 21, 2023, the judge issued an order directing the clerks office to enter final judgment in accordance with the parties approved settlement agreements and dismissing the complaint in this case. However, plaintiffs filed an application under the Equal Access to Justice Act on April 21, 2023, and the case remains open at this time.
CONTACT:
Elva BowdenBerry, OGC 301-287-0974 Nevada v. NRC, No. 09-1133 (D.C. Cir.)
This petition for review challenges NRCs Yucca Mountain Rule, Title 10 of the Code of Federal Regulations (10 CFR) 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 appropriations from Congress from the Nuclear Waste Fund), the case, as well as a companion case brought against EPA challenging the EPA standards, has been held in abeyance, subject to periodic status reports, since 2010. In these reports, the parties have advised the court of the resumption 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
Phillips v. NRC, No. 24-1999-JEB (D.D.C.)
This complaint, filed as a putative class action, seeks damages based on allegations that the NRC mishandled plaintiffs personally identifiable information when it placed his and others job application information in a folder viewable by other NRC users and kept it there for several years. NRC, represented by DOJ, has moved to dismiss the case and the plaintiff has filed a response; a reply to the response is due on January 24, 2025.
CONTACT:
Andrew P. Averbach, OGC 301-415-1956 San Luis Obispo Mothers for Peace v. NRC, No. 23-3884 (9th Cir)
This petition for review challenges the NRCs order, issued by the Secretary on behalf of the Commission on October 2, 2023, not to grant a hearing related to the Staffs approval of a request by Pacific Gas & Electric to revise the reactor vessel material surveillance capsule withdrawal schedule at Diablo Canyon Unit 1. The Secretarys order determined that the revision did not constitute a license amendment, and it referred the underlying issues to the Staff as a petition under 10 CFR § 2.206. Petitioners filed their brief on March 20, 2024; the NRC filed its brief on May 17, 2024; and petitioners filed a reply on June 14, 2024. The court held oral argument on November 4, 2024, and we await a decision.
CONTACT:
Eric V. Michel, OGC 301-415-0932 Texas v. NRC, No. 21-60743 (5th Cir.) (consolidated with Fasken Land and Minerals, Ltd. v.
NRC), cert. granted, No. 23-1300 (U.S.)
This petition relates to the application of ISP for a license to construct a consolidated interim storage facility in Andrews County, Texas. The NRC issued the license for the facility on September 13, 2021.
On September 23, 2021, Texas (including the Governor and the Texas Council on Environmental Quality) filed a petition for review of the issuance of the license. The NRC moved to dismiss the petition, asserting that Texass failure to participate in the adjudicatory proceedings precluded the court from exercising jurisdiction under the Hobbs Act. The court issued an order on November 19, 2021, indicating that it would carry the motion with the case and will consider the jurisdictional arguments 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 moved to dismiss the petition for lack of jurisdiction (because the license is not independently appealable), or, in the alternative, to transfer the case to the D.C. Circuit. On December 21, 2021, the court issued an order indicating that the motion would likewise be carried with the case.
Both Texas and Fasken filed unopposed motions to extend the deadline for filing their briefs until February 7, 2022, which the court granted. Texas and Fasken filed briefs on that date; the NRC filed its brief on April 18, 2022; ISP filed its brief on April 25, 2022; and petitioners filed replies on May 9, 2022. At the parties request, the court ordered the submission of supplemental briefs on August 3, 2022, concerning Texass assertion that licensure of an away-from-reactor storage facility is a major question requiring explicit congressional authorization.
The court held oral argument on August 29, 2022, and the NRC subsequently notified the court about two D.C. Circuit decisions a decision from the Tenth Circuit that adopted the same jurisdictional arguments underlying the NRCs motion to dismiss.
The court issued a decision on August 25, 2023, which denied the NRCs motions to dismiss or transfer and ruled that the agency lacks authority under the AEA to issue a license for the away-from-reactor storage of spent fuel. The NRC and ISP filed petitions for rehearing en banc on October 21, 2023, challenging both the jurisdictional determination and the courts conclusions about the scope of the NRCs statutory authority to license away-from-reactor spent fuel storage facilities. Nuclear Energy Institute and Holtec subsequently filed amicus briefs. Petitioners filed responses on December 9, 2023.
The court issued an order on March 14, 2024, indicating that it had denied the petition for rehearing by a vote of 9-7. The Solicitor General and ISP filed petitions for a writ of certiorari challenging the Fifth Circuits decision on June 12, 2024. Responses to the petitions were filed on August 21, 2024, and replies were filed on September 4, 2024. The Supreme Court granted the petitions for a writ of certiorari on September 30, 2024; the briefs of the Government and ISP were filed on December 2, 2024; the Nuclear Energy Institute and Holtec International filed amicus briefs on December 9, 2024; Respondents briefs are due on January 15, 2024, and reply briefs are due on February 14, 2025. Oral argument has been scheduled for March 5, 2025.
CONTACT:
Andrew P. Averbach, OGC 301-415-1956 Texas v. NRC, No. 6:24-cv-00507-JDK (E.D. Tex.).
The States of Texas and Utah, together with Last Energy, filed this complaint in district court on December 30, 2024, challenging the NRCs definition of utilization facility as it applies to research reactors and certain small modular reactors, on the ground that these facilities do not present a threat to the common defense and security or to the public health and safety. Plaintiffs seek invalidation of the NRCs definition of utilization facility (with instructions from the court that the NRC conduct a rulemaking to define the term) and, with respect to Last Energy, an exemption from NRCs licensing requirements for its small modular reactors. NRC is coordinating a response with DOJ; no deadline has been set for a response because the complaint has not yet been served.
CONTACT:
Andrew P. Averbach, OGC 301-415-1956
CLOSED CASES Aguirre v. NRC, No. 22-cv-0080-JAH (BLM) (S.D. Cal.)
This case was the fourth Freedom of Information Act (FOIA) complaint that Michael Aguirre has filed challenging the agencys response to his request for documents related to the storage of spent nuclear fuel at the San Onofre Nuclear Generating Station. In this complaint, Mr. Aguirre challenged the agencys withholding of some or all of certain responsive documents on the grounds that they contained proprietary and/or personally identifiable information, or that their release would be likely to cause harm to one or more individuals, and he further asserted that the agencys search for responsive materials was not adequate. DOJ filed a motion to dismiss or for summary judgment on March 31, 2022. The court issued an order on March 6, 2023, upholding the agencys withholding of information and finding that it required additional information to reach a conclusion on the adequacy of the agencys search for phone records responsive to the FOIA request. The agency subsequently filed a motion to supplement the record and to dismiss the action, supported by a declaration demonstrating that it did not have any additional records (in particular, phone records reflecting calls between the agency and the licensee) in its possession, custody, or control at the time the FOIA request was made. The court granted the motion on March 18, 2024, and Mr. Aguirre did not appeal.
CONTACT:
Andrew P. Averbach, OGC 301-415-1956 Franovich v. Hanson, No. 22-cv-01008-GJH (D. Md.)
In this case, a former NRC employee filed a complaint asserting claims of discrimination (gender), retaliation, constructive discharge, and a retaliatory investigation. The complaint seeks plaintiffs reinstatement as well as unspecified compensatory damages. In November 2022, the agency filed a motion to dismiss, which the court granted in part in August 2023, leaving only a claim of retaliation. The parties engaged in document discovery then jointly agreed to participate in mediation before a magistrate judge. The parties reached a negotiated settlement on August 13, 2024.
CONTACT:
Rebecca Susko, OGC 301-415-0032
Kelly v. Dorman, No.22-cv-00071-TWP-KMP (S.D. Ind.), affd, No. 23-1765 (7th Cir.)
The pro se plaintiff in this case raised a series of grievances with the agency spanning a twenty-year period. His original complaint was dismissed sua sponte by the district court for lack of subject matter jurisdiction, but the court offered the plaintiff leave to amend his complaint. On December 10, 2022, a magistrate judge recommended dismissal of an amended complaint, but on January 10, 2023, the plaintiff filed a motion for leave to file a second amended complaint, which the court construed as an objection to the magistrate judges report and recommendation and denied on February 26, 2023. Plaintiff appealed this decision to the Seventh Circuit on April 26, 2023. Following briefing, the court issued a short order on February 9, 2024, affirming the district courts decision. Mr. Kelly filed a petition for rehearing en banc on March 24, 2024, which the Seventh Circuit denied on April 9, 2024.
CONTACT:
Andrew P. Averbach, OGC 301-415-1956 San Luis Obispo Mothers for Peace v. NRC, No. 23-3884 (9th Cir)
This petition for review challenged the issuance of an exemption related to the Pacific Gas &
Electrics application for a renewal of the operating license for Diablo Canyon Units 1 and 2. The exemption, which was issued on March 8, 2023, permits the applicant to submit its application for license renewal less than five years in advance of the expiration of the license term yet still to be considered in timely renewal, as otherwise would be required by 10 CFR § 2.109(b).
Petitioners assert that issuance of the exemption violates the Atomic Energy Act of 1954 as amended (AEA), NEPA, and the Administrative Procedure Act because it extends the license term without required safety and environmental reviews and without the opportunity for a hearing. On June 8, 2023, the court issued an expedited briefing schedule and stated that it would calendar the case for oral argument promptly upon completion of briefing. Petitioners opening brief was filed on June 30, 2023. The NRC filed its brief on August 29, 2023, asserting that the court lacks jurisdiction over the petition because it challenges an exemption rather than a licensing action under Section 189(a) of the AEA and defending the exemption on the merits.
The licensee filed its brief on September 28, 2023. Petitioners filed a reply brief on October 19, 2023. The court held oral argument on January 10, 2024. It issued a decision on April 29, 2024, concluding that it had jurisdiction to review issuance of the exemption (because the exemption was ancillary to the license renewal proceeding) and denying the petition for review on the merits. Petitioners filed a petition for panel rehearing and/or rehearing en banc on June 27, 2024, and the court denied the petition on August 5, 2024.
CONTACT:
Eric V. Michel, OGC 301-415-0932