ML20148M827
| ML20148M827 | |
| Person / Time | |
|---|---|
| Issue date: | 04/03/1978 |
| From: | Eilperin S NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Gilinsky V, Hendrie J, Kennedy R NRC COMMISSION (OCM) |
| Shared Package | |
| ML20148M724 | List: |
| References | |
| NUDOCS 8012240078 | |
| Download: ML20148M827 (68) | |
Text
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E . NUCLEAR REGULATORY COMMIS310N 3 ., " j- WASHINGTON. D. C. 20555
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p! ' April 3, 1978 h p.:.
.M ORANDUM FOR: Chairman Hendria IE Acting Chai. m Gilinsky Ce==4 ssioner Kennedy ~
Commissioner Bradford r J/ FROM: Stephen F. 511[arin, Solicitor y.s-
SUBJECT:
LITIGATION REPORT - ' APRIL 1978
} .
Spring has revived the nonthly OGC Litigation Report, which was last seen July 1977 and.once updated for the NRC Ainual ' Report. This cover memorandum details the most significant pending cases. ,;, Case Reference No. ,
. l
- 1. Carolina Favironmental Study Groum 4
- v. AEC, et al. (W. D.N .C. No . C-C-7 3-13 9 ) :
NRC v. C.E.S.G. (Sup. Ct. No. 77-375) .1 Duke Power Co. v. C.E.S.G. (Sun. Ct. i No. 77-262) J This case challenges the constitutionality of the Price- 5 Anderson Act accident liability limitation. Judge McMillan held the Act unconstitutional. We appealed to the Supreme : 2 Court. Oral argument was heard in the Supreme Court on March 21, 1978, and we are now awaiting a decision. j
- 2. Nelson Aeschliman, et al. v. AEC, et al. 5 1 (D.C. Cir. No. 73-1776) and Sacinaw Valley 1 Nuclear Study Group, et al. v. AEC, et al.
(D.C. Cir. Nc. 73-1867) j Consumers power Co. v. Aeschlinan, et al. ! Tfup. Ct. No. 76-528) l y on review of the cons & action permits issued for Censumer Power Company's Midland facility, the Court of Appeals dis- a approved the NRC's treatment of energy conservation issues, q s 1 CONTACT: Mark E. Chopko ::= X-41465 .c
.)
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Wl?l The Comission 2 April 3, 1978 j. i ruling that the Commission had placed too' stringent an evi- _' .. dentiary burden on groups seeking Commission consideration ;; of energy conservation issues. The court also held that ;. Advisory Committee on Reactor Safeguards. (ACRS) reports must (~ be sufficiently explicit to inform the public of all iden-tified hazards of reactor operation and that Licensing .a Boards are obligated to return cryptic reports to the ACRS .... ;]" for further elaboration. The court remanded the case to the F
-Commission to restrike the NEPA cost / benefit balance, includ- ;;l ing an assessment of unaddressed fuel cycle issues. On February 22, 1977, the Supreme Court granted certiorari and p
consolidated the case with the Vermont Yankee fuel cycle [ case. Oral argument was heard on Novemoer 28, 1977, and the .1 cases await decision. Q r
- 3. Natural Resources Defense Council 6 $
.v AEC, ec al. (D.C. Cir. No. 74-1385) .fj and Vermont Yankee Nuclear Power Corp..
- v. NRDC (Sup. Ct. No. 76-149)
{ B
-: 1 The D.C. Circuit, by its July 21, 1976 decision, set aside ?
the waste management and reprocessing portions of the Cem-mission's uranium fuel cycle rule (Table S-3) . Without Table S-3 in place, the court found the Commission's analysis _ . of the environmental effects of the proposed Verrtent Yankee plant inadequate, and the plant's operating license was re- ;g manded to the ccamission for further consideration pending ' an adequate assessment of the fuel cycle issues. The y; Supreme Court granted certiorari and consolidated this case =i 3 with the Aeschliman case. Oral argument was heard on November 28, 1977. The case awaits decision. 12 9
- 4. NRDC, et al. v. NRC (D.C. Cir. No. 76-1525)
This is the Tarapur case. Oral argument was heard on December 8, 1976, on the issues of whether a domestic public interest group has standing to intervene on Commission export license applications and is entitled to an adjudi-catory hearing. The Nuclear Non-Proliferation Act of 1978, Pub. L. No. 95-242, S 304 (c) states that no person is en-titled to such a hearing on export licenses. The case awaits decision.
u The Commission 3 April 3, 1978 9 h, e h h
- c. Natural Resources Defense Council, Inc. , 15 et al. v. Robert C. Seamans, Jr., et al.
(D. D. C. , No . 7 6-16 91) .,,, In re Robert W. Fri, Acting Administrator , of ERDA (D.C. Cir., No. 77-121D) , NEDC, et al. v. NRC (D . C. Cir. , No . 77-1489) E N NRDC and other environmental groups have sued ERDA and NRC E ~; seeking to block construction of the waste tanks projected - . for the Hanford and Savannah River facilities. The com-plaint urges that ERDA has failed to comply with NEPA by not 0 issuing an environmental impact statement for the waste tank d construction and that ERDA has failed to obtain licenses from NRC under Section 202(4) of the Energy Reorganization ~ Act. The request for relief is directed both against ERDA and against NRC. Injunctions are sought barring ERDA from constructing the tanks NRC is named as a defendant because 1' plaintiffs seek a declaratory judgment that NRC has licens- G ing authority in this matter and the NRC erred in refusing a f actual hearing on the jurisdictional issue of whether the tanks are for long-term use. The case is awaiting decision on cross-motions for summary judgment. p on May 31, 1977, NRDC filed No. 77-1489 on the possibility the District Court might find the NRC refusal to assert jurisdiction exclusively reviewable in the courts of appeals. .
- 6. SEABROOK LITIGATION New England Coalition on Nuclear Pollution 16
- v. NRC, et al. (1st Cir., No. 76-1525) e New England Coalition on Nuclear Pollution 22,25
- v. NRC, et al. (1st Cir., Nos. 77-1219, 77-1306, 77-1342, 78-1013)
Public Service Comcany of New Hamcshire 28
- v. NRC, et al. (1st Cir., No. 77-1419) -
These six cases present a series of challenges to various Commission actions on the proposed Seabrook facility. The
- major issues on appeal concern the Commission's " obvious .=
1 .
1::. The Commission 4 April 3, 1978 i= m is superiority" standard for assessing alternative sites, the - 1e consideration given sunk costs, the substitution theory of need for power, financial qualifications, emergency plan- .m ning and. the effect to be given EPA findings on water ',.... ~"
-quality issues. Our brief is due for filing in the First Circuit April 26 t
- 7. ANTITRUST LITIGATION e'.'
~
Central Power & Light Co. v. -24 _ NRC, et al. (D.C. Cir.., Nos. 77-1464, 77-1654) Ft. Pierce Utilities Authority of the 27 City of Ft. Pierce, et al. v. NRC,. et al., , (D.C. Cir. Nos. 77-2101, 77-1925) These cases involve challenges to different aspects of the Commission.'s use of its antitrust authority. In Central Power, the petitioner seeks review of Comission decisions which provide that NRC cannot reopen a concluded construc-tion permit proceeding to determine whether antitrust con-ditions ought to be i= posed on the permit and that the sec-tion 105 regime limited antitrust review to a thorough examination at the .CP. sta,ge. and a narrower second examina-tion at the OL stage. In the Ft. Pierce litigation, petitioners seek review of a denial of a show cause order and a Comission order ( ALA.3-428) which denied the petitioners' post-licensing request for an antitrust review.
- 8. Natural Resources Defense Council v. 29 1 NRC (2d Cir., No. 77-4157) i In this case, NRDC seeks review of the Comission order .
denying the URDC request for a rulemaking proceeding to D -l determine whether radioactive wastes can be safely disposed of and to suspend licensing actions in the interi.m. Oral argument was heard March 15. The case is awaiting
- decision. ?]
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o . l 6 E 1978 if=i The Commission 5 Ap~ril 3, FE
- 9. Westinghouse Electric Corporation 33 ~
- v. NRC (3d Cir., Nos. 78 -1188, 78-1189) g
. ms Exxon Nuclear Company Inc. v. NRC, hg (9th Cir., No. 78-1403). l and ( ,gvl Allied-General Nuclear Services
- )
- v. NRC (D.C. Cir., No. 78-1144) mq Scientists and Encineers for :j Secure Energy, et al. v. NRC h (3d Cir., No. 78-1204)
These cases are challenges to the Commission's December 23 GESMO order, closing down the GESMO hearing and 1 lated pro-ceedings. Once the Ccemission issues its further statement f of reasons a new crop of appeals are likely to be joined - d
+1 with these. H
'1
- 10. People of the State of Illinois 36 .
- v. NRC, et al. (7tn Cir., No. 78-1171)
-1 Illinois petitioned the court for review of the denial of f its 2.206 petition on General Electric's Morris, Illinois, .j facility. The State alleges that " conversion" of the Morris facility for long-term storage waste disposal is a violation g m
of NEPA. Illinois' brief is due in May.
- 11. Mississippi Power and Light Co., 42 et al. v. NRC, et al. (5th Cir. ,
No. 78-1565) f i Nineteen utilities are involved in this challenge to the authority of the NRC to increase license fees. No briefs have been filed as yet. . . .
- 12. Basdekas v. NRC, et al. 43 L
(D.D.C. No. 78-0465) , This suit is by an NRC employee to compel disclosure of documents under the FOIA and Privacy Act. The documents are an OIA investigative report on the EICSB and two OGC E
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- q Tha Commission 6 April 3, 1978 E:
th memoranda. The lawsuit could have a significant i.mpact on E OIA investigations.
Attachment:
Litigation Report $ cc: PE (2) SECT (2) f5 Lee V. Gossick, EDO Howard K. Shapar, ELD Joseph M. T'elton, DRR .. James M. Cutchin, IV, ELD - h Edward G. Ketchen, Jr., ELD 3cmas Combs, SECY Eugenia M. Pleasant, SECY e e e *
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l _ !4 cm ,. 3. . ..e . OGC LITIGATI0ft REPORT April 1978 CASE CASE SUtitlARY STATUS II ' l' l. filnnesota Environmental Control FILED: February 15, 1972 On July 28, 1972, Judge Miles ', cTUzen's Association, et al. v. ACTI0ft: Plainti f fs, a citizens' asso- Lord issued an opinion refusing
' Atomic Energy Conmission, et al. clation, seek to enjoin further to enjoin construction or pro- , (D. Minn. , tio. 4-72-109) development and operation of visional operation, but holding florthern States Power Company's that before full operating per-Monticello and Prairie Island mits for these facilities could facilities on the ground that be granted a fuM fiEPA review wa the Prairie Island construc- required. The Court retained Lion permit, and the Monticello jurisdiction over the matter to provisianal operating license ' ensure that such a review was were issued without preparation performed. During the past five of an environme.ntal impact years the Conmission has under- , s ta tement. taken this environmental review, i and both licensing proceedings i are nearing completion. Once
- they are completed, we will move
; to dismiss the complaint oo grounds of mootness, as well as the exclusivity
- 2. West litchigan Envi_rotinental FiltD! flarch 1973 Opinion June 1974, placing case Action Council,__Inc. v. AEC, ACTI0tt: Citizen group plaintiffs seek in abeyance pending GESMO review et al. (W.D. Mich. , No. an injunction against increased The utility has not pressed its
; G-58-73) use of mixed oxide fuel in application nor prepared the Consumer power Co,'s Big required environmental report, Rock power reactor. and hence the case may moot out<
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- 3. Lloy~d llarbor_ Study Group v. FILED: December 26, 1973 On November 9,1976, the D.C.
HRC (D.C. Cir., No. 73-2266) ACTION: Citizen group challenged Circuit entered a one-page orderr issuance of construction which dismissed the Class 9 con-and permit on grounds that NEpA tention on the basis of CESG v. review for the Shoreham AEC, 510 F.2d 796 (D.C. Cir.197' Long Island Lighting Co. v. facility was deficient in but remanded the fuel cycle asp D_oy_d llarbour Stoudy Group, Inc. that it: (1) reserved for of the case for further conside . (S. Ct. No. 76-745) generic treatment the ques- tion in conformity with NRPC v. tion of incremental impact NRC (D.C. Cir., No.- 76-1586). 2 of the uranium fuel cycle; Wem 6. On November 30 the and (2) failed to consider utillty petitioned the Supreme the consequences of a Court for certiorari . The courQ class 9 accident. has taken no action on the
- ' certforari petition, thus in ef0
. holding the case in abeyance peI ing its disposition of NRDC v.
NRC.
~
- 4. Cdrolina Environmental Study FILED:' June 1973 Dlsmissed except as to Price-Group, Inc. v. AECi et al . .. ACTION: This suit, filed by citizens Anderson issue in June 1975. II U.S.D.C., W.D.N.C., No. groups, challenged the Janudry 1976, the court ordered C-C-73-139 granting of a construction evidentiary hearing on plaintif0 permit to Duke Power Co. for standing and ripeness to challe~
U. S.N. R.C. v. C. E. S.G. , et al . , the McGuire facility in North the limitation of liability. l l S. Ct., No. 77-375 Carolina. Plaintiffs -hearing was held September 27, l alleged that the Commission's and 30. We called Joseph Marroa Duke Power Co. v. C.E.S.G. , NEpA review was inadequate. of NEL-PIA, Victor Bond and S. Ct. , ND7-262 They also attacked, on con Michael Bender of BNL, llal Lewie j stitutional grounds, the af U. of Cal ., and Ed Case, Sau[
, limitation of liability in 'ine and Wayne Britz of NRC, G the Price-Anderson Act. The ify as to the absence of court - ld this case in y" from the operation of abeyare pending the D.C. ' plants. Post-hearing
. 1
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3 I. CASE CASE SUMilARY l STATUS C.E.S.G. [ Continued] Circult's decision in C.E.S.G. briefs were flied Octobo - 18 and
- v. AEC. Following that dect- reply briefs were filed October 26.
sion upholding the Conniission Dr. flarch 31 Judge McMillan ruled (510 F.2d 796), the court dis- thtt plaintiffs had standing to missed those issues which were challenge the Price-Anderson Act, treated by the D.C. Circuit. that the risk of injury was real, and that the limitation on lla- -
- bility was unconstitutional. On llay 2 and May 13, respectively, Duke Power and HRC flied notices of a direct appeal of tiie decision to the Supreme Court pursuant to 28 U.S.C. 1252. On Nov. 7 the Supreme Court noted probable jurisdiction (54 L.Ed. 297) -
and the NRC and Duke Power appeals
; were consolidated. Our brief
; was flied the first week of
; January,1978, and the case was
; argued March 20 by the Soilcitor
- Gcneral.
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i! au . . i 4
; CASE CASE SilMMARY STATils
- 5. Nelson Aesch11 man, et al. v. AEC, FILED: July and Auoust 1973 HRC's brief was filed August 29, et al . , U.S.C. A. , D.C. Cir. , Ho! ACTION: Private citizens and citizen 1974. Oral argument was held on 73-1776; and Saginaw Valley- groups challenged the grant Hovember 27, 1974. On April 8, fluclear Study Grout, et al . v. of a construction permit for 1975, the court of appeals ALC , e t a l . , U.T.T. ATliI. Ci r. , two connnercial reactors in ordered that the cases be held in ho. 73Zl567 Hichigan. A broad range of abeyance pending the court's safety and environmental decision in HRDC v. HRC (No.
Consumers Power Co. v. lielson issues was raised. 74-1586). See item 6. The O.C. Aesch11 man, et al . , S. Ct. rio. Circuit decided the case on July 76-528) 21, 1976. 547 f.2d 622. It dis-l approved the Commission's treat-ment of energy conservation
. Issues, ruling that the Commis- , sion had placed too stringent an i evidentiary burden on groups seek-ing Commission consideration of ! energy conservation issues. The l court also held that ACRS reports l must be sufficiently explicit to i inform the public of all identi-fled hazards of reactor operation, and that the Licensing Boards have the oh11gation to return cryptic reports to the ACRS for .
further elaboration. The case was remanded to the Conmission
, for the purpose of re-striking , the NEPA cost / benefit balance.
l Consumers power filed its certforarl
. petition on October 15. On Decen-I ber 27 Aesch11 man and Saginaw Valley filed their opposition to l
Supreme Court review. On e
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. CASE CASE SUFt1ARY STATUS l
- 5. Aeschlimah[ Continued] January 10, 1977, the United States and the NRC filed a joint memorandun setting forth their respective views. NRC's position was that the Supreme Court should review the case (if it reviewed the fuel cycle case) to correct the court of appeals' rulings. The United States, while agreeing that the i lower court erred it, seme respects, suggested that the case was not important enough to warrant Supreme Court review. On Febru-ary 22 the Supreme Court granted certiorari and consolidated this case with the fuel cycle case.
The utilities' briefs were filed June 6, and ours was flied June
- 27. Respondents' brief was flied '
in October, and we flied a reply brief on November 22. Oral argu-ment was heard by the Supreme Court on November 28 and post-argument briefs were submitted on a belated claini of mootness. The case is awaiting decision
- by the Supreme Court. The Court of Appeals on Oct. 27 denied an emergency motion to enforce man- ,
date.
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6
. CASE CASE SUtf1ARY STATUS-
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- 6. Natural Resources Defense Council, FIllD: March 1974 Argued before the D.C. Circuit on Inc., et al. v. AEC, et al. ,
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ACTION: Petitioners challenged the Hay 27, 1975. The D.C. Circuit Il. S. C. A. , D. C. C'Ir. , No. 74-1385 Consnission's issuance of the decided this case together with Vermont Yankee operating No. 74-1586 (see item 7) on July and license. Relying on NEPA, 21. 547 F.2d 633. It set aside they attacked the Conals- the Consission's uranium fuel cycle Vermont Yankee Nuclear Power ston's treatment of environ- rule (Table S-3) insofar as that Corp. v. NiiDC (S.Ct. No; 76-149) mental effects of fuel cycle rule assigns numerical values to activities attributable to the environmental effects of Vermont Yankee's operation. reprocessing and waste disposal attributable to the licensing of a nuclear power plant. The court also remanded the Vermont Yankee i operating Ilcense to the Consuls- , sion for further consideration pending an adequate assessment of those issues. Vermont Yankee filed a certiorari petition with - the Supreme Court on September 21 and a supplemental brief on Decem-her 6. NRDC filed its opposition to certf orari on December 27. On January 10, 1977, the United States and the NRC flied a joint memor-andum' setting forth their respec-
, tive views on the question of certiorari. See item 5. On Febru-ary 22 the Supreme Court granted ;
certiorari and consolidated this case with Aesch11 man. The utill- . ties' briefs were filed June 6 and l ours was flied June 27. On Nov. 28 the Supreme Court heard , argument and the case is await-l ing the Supreme Court's decision. I g
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! 7 CASE CASE SUttlARY STATUS i
- 7. Natural Resources Defense Council, FILED: June 1974 The D.C. Circuit heard argument
* ,* Inc., et al . v. AEC, et al . , ACTION: petitioners challenged the on May 27, 1975 and decided this U.S.C.A., D.C. Cir., No. 74-15C6 Connission's issuance of a case with No. 74-1385 on July 21.
rule prescribing the manner of 547 F.2d 633. See item 6. Ver-
; and accounting, in individual mont Yankee and Baltimore Gas A Ilcensing cases, for the Electric Co. sought Supreme Court
_ Baltimore Gas & Electric Co., et environmental consequences of review on Sept. 21 and Oct.19, al. v. Natural Resources Defense the uranium fuel cycle activi- respectively. Verinont Yankee Council, Inc. , et al . (S. Ct;, ties. filed a supplemental brief in ho. 76-653) support of its certforart petition on Dec. 6. On Oct. 8 the D.C. Circuit stayed its mandate pending i Supreme Court disposition of the petitions for certforari, and stated that conditional Ilcenses
- could be issued in the interim.
j NRDC sought clarification of that ' stay order, which the Court of l Appeals denied Feb. 17, thus rein-1 I forcing NRC's interpretation of the October 8 stay of mandate that conditional licensing was permissible. Vermont Yankee and l , Baltimore Gas & Electric also l Opposed NRDC's interpretation of l the October 8 stay order. On Dec. 27 NRDC filed its opposition to the Vermont Yankee and BGAE certforari petitions, arguing that the court of appeals' decision was based simply on the inadequacy of factual support for the waste dis-l posal and reprocessing values of
; Table S-3. On January 10 the
[ Continued]
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' STATUS l CASE CASE
SUMMARY
l HRDC v. AEC [ Continued] United States and NRC flied a joint memorandum with the Supreme i Court setting forth their respec-tive views on the question of cert f orari . HRC's position was that the certf orari petitions should be granted since the court ' of appeals had erroneously required nore than notice-and- -
conment procedures for the waste disposal rule. The United States suggested that the ;.ctitions should be denied because the lower court decisions were based on the
. inadequacy of the factual record.
~
On February 22 the Supreme Court granted Vermont Yankee's certiorari petition. No action was taken on 4 BG&E's petition. The Supreme
' Court has decided to hold that l case in abeyance pending its i
decision in Vermont Yankee, which j in our view encompasses the notice and comment rulemaking issue which BG&E wished reviewed. 5 e
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CASE CASE SitMMARY STATUS
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- 8. Sta te_ of New York v. Nr.C, et al . , IILED: liay 1975 tiotion for preliminary injunction (S.D.N.Y. , No. 7:i Civ77T) ACTION: State seeks to stop air ship- denied. Sept. 1975. Appeal taken ment of plutonium, pending to 2d Circuit. State's motion' and preparation of environmental for summary judgment was flied on
. Impact statement. Dec. 11, 1975. The State's motion
- State of New York v. flRC, et al., for sumary judgment was denied i hos. /5-6f1 D F6022 and 76-6081 and it has sought review of that ~
(2d Cir.) . decision in the,Second Circuit. The two appeals were consolidated
; as was a third appeal taken from I the district court's order dis-missing CAD and the Customs Service.
s Oral argument was heard on July l 21. On February 14 the Second Circutt issued a 39-page opinion affirming the district court's dental of plaintif f's . motion for a preliminary injunction. -The Court reasoned that plaintiff had failed to prove irreparable injury in view of the remoteness
' of a transportation accident and the absence of an agency commit-ment of resources to a particular transportation mode. The Second i
Circuit also distilssed on pro-cedural grounds that a final
- appealable order was lacking, the j appeals from the district l
i court's dismissal of the CAB and i Customs Service, and the dental
. of plaintif f's summary judgment 8
motion. The Second Circuit j, [ Continued] e.- n L E - __m__.m_-___m._n____ __ __
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i 10 d CASE CASE $ Uni 1ARY STATUS i i State of flew York [ Continued] , noted our expectation (stated in i a flo renher 17 letter to the U.S. ; Atto.ney) that the Conunission's , impact statement will be published early in February 1977. ! In fact, fiUREG-0170 was issued in '
! December,1977 and we have sent the U.S. Attorney the impact
. statement. The case is presently'
; pending in the district court.
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I 11 . CASE CASE
SUMMARY
STATUS
- 9. State of New York v. NRC (2d FILED: December 1975 The Government's brief was filed
; Cir.,t O S 427R) ACTION: New York State and citizen on March 12, 1976. Argument was
~
groups seek review of HRC's heard on April 12, 1976. On May
. and November 14, 1975, Federal 26, 1976, the court issued a Register statement as to the decision upholding in full the Natural Resourt defense Commission's standards for Cemmission's GESMO bearing pro-Council, et al. v. HRC, et al. , interim licensing prior to a cedure, including bifurcation U. S. C. A. , 2d C i r. , No. 75 427~6 Conmission decision on wide- and predominantly legislative scale plutonium recycle. format. It also upholds the and scope of staff review and hear-ings on individual license appil-Allied-General Nuclear cations set forth in the November
. Services, et al. v. NRDC, Notice. As for interim licensing, et al. (S. Ct. ho. 76 353) however, the decision forbids all except that done for " experimental and and feasibility purposes." This prohibition covers all separa-Conimonwealth Edison Cc., et tions, conversion, fuel fabrica-al . v. H RDC, e t a l . ( S. C t. tion, imports, and loading of mox No. 76-762) in reactors unless it can be clearly shown that the action is and not related to " commercial" plutonium recycle. The thrust of Baltimore Gas & tiectric.Co. , the opinion is that it would be et al. v. NRDC, et al. (S. Ct. very difficult to justify any ho. 76-774) interim Itcensing not obviously limited to experimental purposes.
'and Current uses of mixed oxide fuel, 3 however,' are unaffected by the Westinghouse Electric Corp. v. opinion. 539 F.2d C?4.
HRDC,_ et al. (S. Ct. No. 76-769)- [ Continued] a' . t
l, . i i . 12 CASE CASE SUMr1ARY STATUS State of n69 Y6rk v. FIRC & In passing references not neces-NltD.C. e t a l . v. fillC, eI~al . LContinued] sary to the decision, the opinion also asserts the draf t GESF0 is inadequate because it does not treat non-nuclear alterntive
!' power sources. On June 30 flRC
. flied a petition for rehearing or rehearino en banc. The court of a > peals ilenTeTUie petition in a snort opinion issued September 8 i which adhered to the court's earlier conclusions. On February 4 the Solicitor General filed a memorandum on our behalf with the Supreme Court suggesting that the Supreme Court should stmmarily reverse the Second Circuit's dect-sion as inconsistent with Kieppe
- v. Sierra Club, 427 U.S. 390. ,
AGN5 Tiled its petition for certforari on flovember 9. Conmon-wealth Edison, Westinghouse Elec-tric, and Baltimore Gas & Electric filed their petitions on December 3, December 7, and December 7, respectively, flew York State and ilP.DC opposed certforari. The Supreme Court granted certforari on March 21, 430 U.S. 944, 51 L.Ed. 2d 791, and on Day 18 our time for filing a brief was extended untti Auoust 12 in order to allow the Conmission to reconsider u ,. [ Continued] ._ u-N)
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Hi! 13 l CASE CASE
SUMMARY
STATUS State of New York v. NRC & GESMO in light of the President's NRDC , e t a l . v. NRC, e t al .
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April 7 Statement on Nuclear LContTnued] Power Policy. On July in the Solicitor General received a further extension untti Oct. 11 in-view of the absence of a Consnis-sion quorum and the delay in receiving the views of the Execu-tive Branch. Briefing was delayed several times thereafter. In January, 1978, the Solicitor i General flied a suggestion of
. mootness on our behalf with the Supreme Court submitting that the i Commission's Dec. 23 decision on mixed oxide fuel rendered the Second Circult's decision moot, and that the opinion should be vacated and the case remanded l with instructions to dismiss. On i Jan. 16, 1978, the Supreme Court I
vacated the Second Circult's judoment and remanded the case to the Second Circuit "to con-i sider the question.of moolness." I l . l i (U; _
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14 CASE CASE SUtt1ARY STATUS
- 10. United States v. New York City FILED: January 15, 1976 On Jan. 30, 1976, the United
($.D.H.Y., No. 76 Civ. 273) ACTI0ft: Complaint flied Jan. 15, States' motion for a preliminary 1976. U.S. seeks declaratory injunction was denied, partly and injunctive relief regard- because Judge Ilyatt was uncon-ing a provision of NYC's llealth vinced that the City's ordinance Code dealing with the transpor- was inconsistent with DOT policy. tation of nuclear materials DOT has published regulations through the City. under the llazardous Materials Transportation Act which became effective Jan. 1977 and allow
' interested persons to seek a ruling that a local ordinance is ' inconsistent with 00T regulations.
On Feb. 28 Brookhaven filed its request for such a ruling with DOT, arguing tha t the City's restrictions on shipping new and , spent fuel were inconsistent l with DOT's regulations. We and l ERDA have written DOT in suppo~rt i of Brookhaven's position. Most ! likely DOT will not rule on the i issue for some months. After f DOT's position is fixed, the ( ' United States will then seek (
> sunmary judgment in federal dis- ;
trict court. ' 0
.O. -
m: u: n - a i 15 CASE CASE Sulf 1ARY STATUS
- 11. Culpeper League Fo_r Env tron- FILtD: May 28 and June 15, 1976 The Court consolidated these cases mental Protection v. HRC, "' ACTI0ft: Petitions for review in the on July 15. Petitioners' briefs TD.C. Cir. , ho, 76-14H4T tl.S. Court or Appeais for the were filed in mid-August and our D.C. Circuit. Petttioners brief was filed Sept. 20. The and challenge an Appeal Board Court heard oral argument on April
. decision, not reviewed by the 25, and ori March 16, 1978, a ffinned rauquier League For Environ- Conmission, which concerned the Conmission in all respects.
mental Protection v. IIRC ' the routing of high-voltage TD.C. Cir.,110. 76-1572J transmission lines from j VEPCO's fiorth Anna Power S ta tion. Petitioners contend an alternate route would have been preferable from an environmental standpoint. The Appeal Board, relying in large measure on evidence
, brought out during seven days , of Licensing Board hearings, ' concluded the route chosen was environmentally sound.
I 12, ilRDC, et al. v. lIRC filed: dune 11,1976 The certified indax of the record [ (D. C. Cir. flo. 76-1525) ACTI0ft: IIRDC and the Union of Con- was flied on July 26. The State cerned Scientists sought Department intervened and filed leave to intervene in two flRC a motion to dismiss: which the bxport license proceedings court denied. Petitioners' brief
' ,
- Invo,1ving app 1tcations to was flied Sept. 7 and our brief export low-enriched uranium was filed Oct. 26. Replies fuel to India for use at the (inclut'ing our reply to the tarpur Atomic Power Station. Department of State's brief) were Although it decided to hold filed Nov. 9. Oral argument was a non-adjudicatory hearing on heard Dec. 8 before Judges these applications, the NRC Bazelon, leventhal and MacKinnon.
, [Conti,riued]
I 4
i
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! i 16 CASE CASE SUl?1ARY STATUS flRDC,._ e t a l . v. IIRC denied petitioners' request to Our defenses include lack of TD.C. Cir. , flo. 76-152!i) Intervene as parties in the standing and the absence of a NRC licensing proceedings on requirement for an adjudicatory [ Continued] the ground that they lacked hearing. standing. Their petition to the D.C. Circuit seeks review On June 22, 1977, the Coninission of the Conmission's action with consolidated the license applica-regard to License fio. XStiM- tion pending before the Court
- 045. They contend that the (XSilM-845) with a follow-on Conmission erred in determin- appilcation for nuclear material
, Ing that they lacked standing for use at Tarapur (XSf1M-1060) and that a full adjudicatory in order to preserve the pro-hearing was not required. Ledural issues pending before the court should the Coninission grant the earlier flied appilcation.
On June 28 the Conmission approved issuance of XSitM-845 and peti-
" tioners on June 30 obtained a court order directing the Conunis-ston to suspend that license in i order to preserve the court's jurisdiction over the case before it. On July 5 we inoved to vacate the order of suspension pointing out that the Conmission's con -
solidation order had preserved
- the status _ quo, and emphasizing
, the foreign relations need for, the export. The State Department filed a similar paper. On July
. }
6 the Court of appeals vacated
' o its suspension order and the export license thereupon issued.
j I The Conmission recently adopted i new part 110 expott and import I [Contilnued]
- a es" m=e__. 4 1 r
' 17 CASE CASE SUtf1ARY STATUS HRDC, et al. v. flRC regula tions. Additionally, on (D. C. Cir. , No. N 1525) March 13 we filed a Supplemental Memorandum with the Court of
[ Continued] Appeals arguing that the fluclear tion-proliferation Act also sup-ported the Conniission's discre-tionary hearing powers.
- 13. Audubon Society of New filed: duly 29,1976 On August 6 petitioners tuoved the llampshire, et al. v. Ifnited ACTION: Oh duly 29, two environmental court to suspend the et'fectiveness States, et al. ,1st Cir. , grouli s petitioned the 1st of the construction pennits until Circuit to review the Appeal No. 76-143/ such time as the Appeal Board Board's July 14,1976, order ? rendered its decision on the declining to stay the issuance merits of the appeals which had 3
of construction permits for been taken from the initial deci-Seabrook Station, Units 1 and sfon. On Aug. 27 flRC filed its l 2. petitioners are seeking a memorandum in opposition. It 1s stay of construction until our position that petitioners have i the Appeal Board can pass upon not demonstrated a likely success t
' their exceptions to the Licens- on appeal or irreparable injury.
Ing floard's inlital decision. The 1st Cir. heard argument on
)i Sept.16 and on Oct. 8 issued an order and cpinion invittnc the Appeal Heard to reconsider its ALAB-338 decision. The court
! Indicated that it w.n unconvinced i i that petitioners had suffered f rreparable injury but wished to 1
', hear the agency's views on peti-tioners' turbidity claim. pursu-ant to the court's invitation the Appeal Board reconsidered ALAB-338, and on Nov. 8 announced its decision to ::dhere to its earlier
,- [ Continued]
l _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
, . !r I
1B CASE CASE SttitlARY STATUS Audubon Society. v. (J.S. conclusion denying the stay. ALAB-356. The next day, an EPA Regional Administrator issued an inlital decision denying Sea-brook's request for a federal Water Pollution Control Act dis-charge permit, finding that the once-through cooling system as pro = posed by the uttilty was not ade-
. quate. On flov.11 the court of appeals ordered the parties in this case and in fiECNP v. FIRC l (item 17) to advise it whe1 Tier
,. EPA's action mooted the court I cases since the Licensing Board had condi tioned Seabrook's con-
- struction permit on EPA not order-Ing closed cycle cooling. On tlov. 26 we advised the court that the cases are not moot since EPA has not yet ordered closed cycle
; cooling (another type of once-through teoling may suffice), the Licensthg Doard's condition is an
~ , appeal, and the utility has
. appealed the Regional Administra-tor's decision to the EPA Administrator. On tiov. 20 SAPL-Audubon filed a supplemental ; memorandum again requesting a stay. The court of appeals on Dec. 3 ordered a conference on Dec. 9. Af ter extended argument
[ Continued)
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. = . -
l 19 I CASE CASE SUl11ARY STATUS Audubon Soclely v tl.S. the first Circuit that same day issued a statement calling on the [ Continued] Appeal Board to consider tiie relevance of the Reginal Admints-trator's decision so that the
; court might have the benefit of q the Appeal Board's thinking. In a separate optriton handed down Dec.17, the First Circuit asked the Conniission for assistance in i
resolving the difficult stay I issues. The First Circuit gave the Connission and the Appeal
' Board until feb.18 to render a decision. On Dec.10 the Appeal
. Board heard argument on the EPA l stay issues as well as on the j appeals from the Licensing i Doard's decision. On Jan. 21 the
! Appeal Board ordered a halt to construction at Seabrook. ALAD-
. 366. The Comaission directed review and allowed the utillty to proceed with limited excavation pending the Conmission's decision on the merits. On March 9 SApl-i Audubon sought a halt to continu-i ing construction from the First
. Circuit. We oppnsed that motion l liarch 22 as did the utility. On March 31 the conmission rendered i its Seabrook decision, allowing limited ext.avation to proceed but otherwise suspending the
[ Continued] t.
'i; un . .lh 3 1.12. 1 :::.1:: - -
a Y ~ -
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r 20 i CASE CA'SE
SUMMARY
- STATUS I
I Audubon Society v. U.S. permits pending remtided hearings , 3 before the Licensing Board. On [ Continued] April 27 the court entered an order advising that it would l consider the stay-issue as neot l in light of the Commission's
- March 31 opinion unless counsel l . objected. Both NECNP and SAPL-Audubon have objected, and,
. additionally, NECNP has petitioned
! the First Circuit to review the
! Commission's March 31 decision.
i See item 23. On June 16, in anti-
! cipation of the EPA Administrator's j announced !ntention to reverse j his Regional Administrator,
! HECNP sought a stay of construc-
, tion from the First Circuit. The EPA decision approving once-through cooling in fact issued 2
June 17. On June 22 we opposed i
' NECHP's motion for a stay, argu-ing that the Conmission's March 31 stay of construction' remained in effect so that the stay motion-i .
was premature. The First Circuit
- , agreed, and on July 7 denied NECNP's motion as prenature with i' leave to re-file-tie motion if.
and when the Commission's suspen-sion of construction was lif ted. j EPA's decision approving once-I through cooling has been made the subject of a separate appeal in I.
! iii . ,. .
[ Continued] ._c _ _ _ _ _ - _ ________0_____._. _ _ _ _ _ _ _ . _ _ _ _ . _ .
_. u1 . . .. I l l 21 CASE CASE
SUMMARY
STATUS Audubon Society v. U.S. Elie first Circuit. SAPL v. Costel, EPA Administrator, No. [Contihued] 77Zl264~} July 1,1977), whicle the F,irst Circuit decided adversely to EPA. The First Circuit dismissed No. 76-1437 as moot on October 28, 1977.
- 14. flartin flodder, et al. v. FILEb: Augdst 2,1976/ February,1978 On August 13 petitioners flied a NItc, D. C. C ir. , hos. 76-1709 ACTION: Petitioners seek review of motion seeking summary reversal and 78-1149 tiie partial Initial decision and injunctive relief. He filed authorizing issuance of an our opposition on Aug. 27. On LWA 2 for St. Lucie Unit 2 Oct. 21 the D.C. Circuit denied And review of the initial petitioner's notion for summary
, decision authorizing a CP. reversal, but stayed further work under the LHA in light of the Appeal Board's finding titat alternative sites were not ade- '
quately considered. On Oct. 22, the court of appeals denied the utfif ty's notion for rehearing, and gave Florida Power and Light untti Nov. 8 in which to termin-ate construction activities. On llov. 4 the utility noved to delay that date and flied a suggestion
, for rehearing en banc. The court of appeals dented those motions Nov. 22. Consequently, work
' under tiie 1.WA ceased pending con-sideration of alternative sites.
On April 19 tiie Licensing Board issued its Initial Decision resolving the alternative sites [ Continued]
_w u ._- x: . i 22 i CASE CASE SUMilARY STATUS llodder, et al. v. IlRC contention in favor of the St. Lucie site and authorized issu- [ Continued] ance of a construction permit.
. We advised the Court of Appeals of this on April 21. On April 29 petitioners asked the court to enforce the Oct. 21 stay order.
We opposed, arguing that the court's stay terminated with com-pletion of the alternate sites hearing by the Licensing Beard. On May 12 the Court of Appeals I entered an order supporting our I position. The court dissolved its-i stay and dismissed petitioners' motion as noot. It also ordered i that the petition for review no i longer be held in abeyance. On i l'ay 13 petitioners moved for a
, stay of the construction permit. ,
We opposed on Iby 24 arguing that petitioners had not exhausted their administrative remedies and did not meet the Virginia petroleum standards for issuance
. of a stay. The court agreed, and on June 1 denied the motion for a stay for failure to exhaust admin-1s trative remedies. On July 8 the Utility asked the court to dismiss the petition for review since petitioner had not filed a brief.
. [ Continued]
u .
m u.a.. 2: , a 1 - 23 CASE CASE SUMtlARY STATUS i llodder, et al. v. lIRC On October 4,1977, the coun t ordered that No. 76-1709 be held [ Continued] in abeyance pending exhaustion of of administrative remedies. Those proceedings were completed when the Appeal Board affirmed the Licensing Board and the tine for Commission review expired on Dec. 23, 1977 in ALAB-435. The peti-
. Lion for review in No. 78-1149 is from that final order. On Feb.
15, 1978, petitioners flied their brief in No. 76-1709, limiting it to the Feb.1975 partial initial decision. On Feb. 27, 1978, we moved to extend the response time for our brief in No. 76-1709 to thirty days af ter filing of
; ; petitioners' brler in No. 78-1149, and to consolidate the cases for all purposes. The D.C. Circuit granted those requests on March 17.
S t ylI
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3
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- il *$b- bla AI " dU f '6H ' * ' " ' ~
i 24 CASE CASE SO41ARY STATUS
- 15. Natural Resources Defense FILED: Sept. 9,1976 and May 31, 1977 The Government answered the com- i:
e Council Inc. , et al. v. ACTION: NRDC and other environmental plaint on Nov. 8, 1976, denying i Robert C. Seamans,_J_r. , groups have sued ERDA and NRC the principal allegations. e t a l . (D. D. C. , ilo. 76-1691) seeking to block construction Specifically, NRC denied that the of the waste tanks projected for waste tanks at issue required and the llanford and Savannah River ifcensing under Section 202(4) of facil i ties. The complaint the ERA. The Government also In re Robert W. Fri, Acting urges that ERDA has failed to noved to transfer this case to the - Administrator of ERDA - comply with NEpA by not issuing federal district court in Spokane, il 10.C. Cir., No. 77-121D) an environmental impact state- WA where a somewhat similar suit ment for the waste tank con- filed three years ago was then and struction and that ERDA has pending. On Nov.18 plaintiffs L" failed to obtain if censes from oppo;ed our motion to transfer and Natural Resources Defense NRC under Sec. 202(4) of the we repiled to that opposition. Council, Inc.,_ et al. v. - Energy Reorganization Act. The On Nov. 8, the same day the NRC, D. C. C i r. , No. 77-1489 request for relief is directed Government answered, plaintiffs e both against ERDA and against flied an amended complaint alleg-NRC. Injunctions are sought ing that NRC's letter-denial of barring ERDA from constructing its licensing authority was pi the tanks. NRC is named as a arbitrary and capricious. We defendant because plaintiffs filed an answer denying these .;; seek a declaratory judgment amended allegations Nov. 22.. I that NRC has licensing authority Judge Richey denied the transfer IL in this matter and that NRC notion on Jan.14 and set up an erred in refusing a factual expedited schedule for consider [ hearing on the jurisdictional the case. -On Feb. 28 the United il issue of whether the tanks are States flied a mandamus action in 8 for long-tenn use. the court of appeals to compel: ' Judge Richey to transfer the case. The action was dismissed March 21 and the mandamus. action was denied May 26 by the D.C. Circuit. On March 31 the Commission issued [ Continued] -
- r. . ,
4, 1-
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_ ' .:cj a ri.M , . Lu:la . :p-t 25 CASE CASE
SUMMARY
STATUS NRDC, et al. v. _Seamans, et al . a remorandum and order on hRDC's
. request for reconsideration.
[ Continued] again ruling that the waste tanks at issue did not require licens-ing under section 202(4) of the ERA. Af ter extension of time to accommodate new counsel for
, plaintiffs. plaintiffs flied their motion for sumnary judgment April 25 and the United States cross-moved for sut; nary judgment on May 16. Plaintiffs and the United States each filed a reply on May 26 and July 11 respec-tively. On May 31, plaintiffs flied a protective suit in the O.C. Circuit (No. 77-1489) against the possibility that the district court might hold the NRC's refusal to assert Ilcensing jurisdiction exclusively reviewable in the courts of appeals. We flied the certified record .in that case on
^
July 8. Judge Richey heard oral
, argument on July 28 and tise case .
i i is awaiting his decision. 1 I j SE:' .us i* e ,
- .133 -. i .1$dI1N:Ci; r !
- i i 26 CASE CASE SO41ARY STATUS .
- 16. New England Coalition on FILED: October 6, and November 18,1976 In No. 76-1469 NECNp f!Ied a Nuclear Pollution v. NE, ACTION: NECNP has petitioned the First motion for sunmary reversal on et al. (1st Cir., No. Circuit for review of the Com- Oct. 6. We moved to dismiss the-7 W 69) mission's Oct. 5 order direct- petition for review and filed ing review of ALAB-349, the our supporting memorandum on and Appeal Board decision suspend- Oc t. 13. public Service Co. of ing the Seabrook construction New llampshire has also opposed .
New England Coalition on pennits on fuel cycle grounds. petitioner's motion for summary Nuclear pollutten v. NE NECNP claims that the Consnis- reversal. The motions are now Ti s t C i r. , No. 76-1525)-- sion's direction of review was ready for a court ruling, as are 111egal for failure to state supplemental notions to dismiss reasons, and that the Consnis- on mootness grounds in light of ston's stay rule does not the Coninission's Nov. 5 Seabrook i comport with judicial standards. decision. On Nov. 18 petitioner NECNp also seeks review of moved to consolidate No. 76-1469
, the Consnission's Nov. 5 order with No. 76-1525, which j overturning the Appeal Board's challenges the Consission's Nov.
i
- suspension of the Seabrook 5 order overturning the Appeal construction permit. Board's suspension of the Sea-q brook construction pennit on fuel
; cycle grounds. We opposed con-solidation and asked the court to rule on the pending motions
! to dismiss. On Dec. 21 the First -
l Circuit ordered the cases con-
- solidated and, by agreenent of
' the parties, held in abeyance pending the D.C. Circuit's ruling i
on petitioners' motion to clarify
, the court's Oct. 8 stay of man-
, ! date in the fuel cycle cases. On i Feb.17 the D.C. Circuit denied petitioners' motion for
. (Continued]
e i .
. y..
i ? !i
- , :::J:L1:u:L: -
. I; t
2'1 CASE CASE SUMflARY STATUS HECHP v. NRC clarification. In view of that dental, the Supreme Court's [ Continued] grant of certforari in the fuel cycle cases and pubilcation of the interim S-3 fule, it is extremely unifkely that the First Circuit will act favorably
' , on petitioners' cases. On Oct.
I 28, 1977, the First Circuit dis-missed bolli cases as noot. On l Nov. 14. 1977, the court rein-3 s ta ted No. 76-1525 and held it , in abeyance pending the Supreme
;9 ,
Court decision in Vermont Yankee I l I i 4 9
v u._. !L i 28 CASE CASE SUMf1ARY STATUS 4
- 17. Virginia Electric & Power FILED: November 12 an:1 29, 1976 The certified index of the record Co. v. flRC (4 th Cir. . ACTION: VEPCO and the florth Anna was flied Dec.14. On Dec. 10 the
; ho. 76-2275 Environmental Coalition have Fourth Circuit consolidated these i petitioned the Fourth Circuit cases and on Dec. 20 the State of and to review the Commission's Virginia was allowed to inter-North Anna opinion which vene. Petitioners' briefs were
! North Anna Environmental imposed a $32,000 fine ' ?he riled Feb. 22. Ours was (11ed Coalltlon v. fMC FilliTTr., utility for false stat . ~ + - March 28. Basically we argued Ho! 76-2331) concerning geologic fa ,
, at that the $32,000 civil penalty the site, assessed against VEPCO was proper; that an intent to deceive is not a necessary element of an action-i able false statement; that the i
! materiality of the statament nust be judged from the point of view of an flRC employee reviewing the utility's application for a power plant license, not the lay
- i pubi tc's understanding; and ti.at I
I omission of information can con-i stitute a false statement. Oral argument was held on Dec. 6. On February 28, 1978, the Fourth Circuit affirmed the Commission's order, i . 9
iliiiiii + :!!!: i !!! iji:!-i
!!!! mi
_ _r . . . am.m , 23 .m c, n ...-- 29 CASE CASE SURIARY STATUS
?
- 18. Tennessee Valley Authority v. filed: February 17, 1977 The complaint was flied February j -
HIIC-(L D. Tenn. s No. 177-35) ACTION: TVA has flied suit in federal 17, 1977. TVA would not negotiate j district court seeking a a settlement of the lawsuit. declaratory judgment that flRC Consequently, on Airil 20 we lacks statutory authority to moved to dismiss tie complaint on order TVA to cease and desist jurisdictional grounds and invoked from removing structures from as well the court's discretion to the l'hipps Bend site withoin decline declaratory relief. 'On prior flRC approval. TVA ci !ms May 13 TVA sought sunmary judgment that the TVA Act authorizes and opposed our motion to dismiss it alone to determine TVA land On May 26 we asked the court to acquisition and properly defer consideration of TVA's sub-
~
managment activities, and that stantive motion for sunmary the current phipps Bend judgment and rule first on our activitit s fall within that motion to dismiss. The case was
' area. dismissed by order of the court as inappropriate for declaratory reller on Sept. 14, 1977.
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aa ==: I i t 30 I CASE CASE SUltfARY STATUS
' 19. John ALbotts, et al. v. NRC ~
FILED: April 11, 1977 Our answer to the complaint was
- 10. 0.C. , No. 77-6N) ACTIDrit dohn Abbotts PIRG, and NRDC filed on June 13 and on dune 22 brought a FOIA suit challenging we filed detailed affidavits of l an liRC decision withholding David Matthews and Robert Whipp certain safeguards documents. explaining the basis for with-The safeguards documents holding,the seven documents still involved fall into three cate- at issue. Parties cross-moved gories: .(1) records relating for summary judgment. We flied to the fillSS program for on- a reply in Feb. 1978. The court I, site reviews of SSilM facilities must now decide whether to review inillated in early 1976, the documents in camera and (2) records concerning the HMSS whether there Ts a valTd exemption investigallon and review of fiFS, claim by HRC.
. ERWlft in late 1975 and early 1976; and (3) studies done for or relating to flRC's Special 5areguards St.udy and the Draft Safeguards Supplement.
i I S _m ________ ____ _ __ __ _ _ ____ _ _ _ _ _ _ _ _ _ _ . _
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. .a .iM e t
31 CASE CASE SUR1ARY STATUS - l t 1
- 20. Natural Resources Defense Fil.ED: May 3,1977 and June 30, We have answered the complaint Council, Inc. , et al. v. NRC. 1977 and in Feb.'1978 moved to dismiss i
et al. (D. N.M. , No. 77-241P3) ACTION: On May 3', NROC, the Central the complaint for' sumary judg-Clearing flouse of New Mexico ment. A stipulated statement of and and two individuals filed facts has also been flied. Our-suit against NRC and the New arguments are that New Mexico's i Natural Resources Defense Mexico Environmental Improve- grant of a Ifcense was State Council, Inc.6 e t_ a l . v. NRC. - Inent Agency seeking to enjoin action to which NEpA does not e t a l . L D.C. C ir. , Fo. 771570) operations of United Nuclear's apply, and that the compati-Church Rock Mill which HMEIA bility provision of Section 274 Ifcensed May 3. The suit does not require that the State alleges violations of NEpA and assess the environmental conse-the Atomic Energy Act. The quences of each of its licensing gist of the complaint is that actions by means of an environ-telther NRC nor New Mexico has mental impact statement. New
- prepared an environmental Mexico flied its motion to dis-
, impact statement for the miss asserting these defenses on ';, Church Rock Mill. plaintiffs July 11.
tontend that New Mexico, as signatory to a section 274 We also assert that the D.C. State Agreement to regulate Circult's decision is controlling. 1 I radioactive materials, is in the court of appeals 11tiga-exercising federal power and tion, we moved to dismiss, and therefore must comply with our motion was granted in mrt. NEPA. They also contend that In 1.ts Jan. 6. 1978 decision, the. '
; NRC's continuing review powers i
Court dismissed the first count I
, over State programs consti- of the complaint on the grounds
,' i tutes sufficient federal that NEPA does not apply to Involvement to call for prepar- agreement state Itcenstr.g actions.
' allon of an EIS. Set.and . The court decifned to reach the plaintiffs argue that, in order second count involving the i to comply with section 274, compatibility issue, and it .
I State programs must be "compatt- aff f rmed NRC's decision denying
; ble" with the NRC program and NRDC a hearing on the Church i .
[Cofjnued] [ Continued]
- __x- _ _. - _ - _ _ __ - . - - .. - _L-__L. . - . . . . . . . _ . . _ . _ . . . _ . . ...-. .-, ,. .
t 32
; CASE CASE SUMilARY STATUS flRDC v. flRC, No. 77-240-0 that compatihIlity requires Rock license.
Preparation of an EIS where llRC would prepare one in a non-agreement State. FIRC currently prepares an - EIS for each new milling Ilcense and first renewal. A similar petition for
, review was filed June 30 in the D.C. Circuit but naming
, only the flRC as a respondent.
i 21. llatural Resources Defense filed: flay 13,1977 , On July 5 ilRDC requested that the
' I Council, Inc. v. HRC, et ACT10ft: On Iby 13, 1977, ilRDC filed D.C. Circuit hold the case in I ~~-al. (D.C. Cir., fla. 77-1448) a petition for review of the abeyance until the Supreme
! flRC's March 14 Federal Court reaches a decision in the l Itegister notice promulgating Vermont Yankee fuel cycle case.
, 6 an Interim rule quantifying See item 6. On July 14 we advised
,' < the environmental effects of the court of our consent to that j the uranium fuel cycle. motion and the court granted it.
l
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t . 33 CASE CASE
SUMMARY
STATUS
- 22. New England Coalition on FILED: May 13, 1977 huclear Pollution v. NRC, The certified index of the record ACTION: On May 13 the New England was flied June 30. The court con-et al. (1st Cir., No. Coalition flied a petition solidated this case with Nos.
77-1219) for review of the Commis- 77-1306, 77-1342 (see item 25) sfon's March 31 Seabrook and 78-1013. Our brief is due-decision which suspended the Apell 26. ~ Seabrook construction permits pending further Licensing Board hearings. The Commis-slott's decision also estab-i Ilshed standards for striking the NEPA cost / benefit
', balance.
- 23. The Babcock and Wficox Co. v. FILED: May 17, 1977 On May 18 the clerk's office NRC, et al. (D.C. Cir. . No. ACTION! On May 17 the Babcock and Wil- advised us that the Court desired-77-1451) cox Company filed a petition
our response by May 23 at - for review of Ernst Volgenau's 4:00 p.m. We filed our response-May 9 letter-dental of B&W's that day arguing that Dr.
, Section 2.206 request to seek Volegnau's letter was not a final Injunctive relief against Commission order subject to court United Technology Corpora- of appeals review, and that Dr.
tion's proposed takeover of Volgenau had acted reasonably in l ' B&W. The company also filed in exercising his discretion not. - h ,
' a motion for expedited con- to enmes'n the NRC in a corporate 8
i sideration of its petition takeover fight. We also moved to-and scJght summary reversal dismiss- the petition for lack of and injunctive relief against. jurisdiction. On May 24 B&W [ Continued] [ Continued] . N .;g . ___ _ ___ - ._ _ _ _ _ ________- __ _ _ _ - - _ _ _ - _ _ _ - _ _ _ _ _ . _ _ . _ . . _ _ . _ _ . - _ . _ _ . . _ _ . - . . . .- -~
j sg
--- iji!:mi:Libn . ,
.:muli , :. ..mJ::
s 34 CASE CASE
SUMMARY
STATUS B&M v. NRC [ Continued] NRC to order a section 184 replied to our papers, and on license transfer hearing. May 27 the court af appeals denied B&W's request for sunenary reversal and injunctive relief. The court also deferred ruling on our motion to ' dismiss , Icav-ing it to the merits panel for
, its decision. Thereaf ter, on June 2 B&W moved for expedited consideration of their petition for review. We opposed, June 9, arguing that B&W was simply i
attempting to re-open issues the
' court decided on May 27. On July 11 the I).C. Circuit denied B&W's motion. We flied the certified index of the record July 1. B&W's i
i brief on the merits was flied August 9. On 5'pt.16,1977 l the court dismissed the case as
! moot in light o' the withdrawl of
' i
' Uni ted Technolog s tender offer.
' I 1
1 i 1 O . - - . . . . . . . . - . . - -- - - - - - - - - -- - - -- - - - - - - - - - - - - - - - - - - - - - -
autuu.iu a m , N.!!; 9 . .m I 35 CASE CASE SUl?tARY STATUS
- 24. Central Power & Light Co.. .FILEUt May 18, 1977, July 26, 1977 The certified index of the record
_ v. NRC, e t al . (D.C. Cir. , ACTION: On Play 18, Central Power & was filed June 27. On June 30 Nos 7 /-1464, 77-1654) Light Co. , one of four holders Houston Light & Power Co. was per-of a joint license to con- mitted to intervene. petitioner's struct the South Texas nuclear brief was flied August 8; our generating station, petitioned brief was flied Jan. 20. Our-for review of the Appeal defense of the merits of this Board's llarch 18 decision in litigation followed the If ne of Docket Nos. 50-498A and the Appeal Board's decision, 50-499A. (ALAB-381). That ALAB-381, which the Comission
' decision held that under Com- did not review. The cases have
- mission regulations the Licens- been consolidated.
Ing Board did not have authority i to re-open a concluded con-
; NRC flied a supplemental certified struction permit proceeding for index of the record on Sept. 9 the prpose of initiating a 1977. Petitioner's brief on the hearing to determine whether merlts was flied Oct. 11, 1977, i
antitrust conditions should be arguing that (1) by virtue of
, imposed on the pemit. Sec.186 of the Atomic Energy
'. :i Act, the Comission may initiate on July 26, Cp3L flied No. antitrust review of a license 77-1654 to review the Comis-independent of the penhncy of sfon's South Texas decision. an operating license or construc-In that decision the Conmis- tion permit proceeding; and sion held that the section (2) NHC regulations,10 CFR
' 105 regime limited antitrust 2.174(a), authorize Licensing ~
review to a thorough examina- Boards ' to reopen cc.icluded anti-tion at ,the Cp stage and a trust review proceedings, or to
' narrower second examination at order such proceedings-in the the OL stage. absence of a pending construction pemit or operating Ilcense j ,
proceeding. i i . [ Continued] w .11; e .
~. ._
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i 36 ! CASE CASE SUFflARY STATUS Central Power & Light v. NRC , NRC's brief was filed on Jan. 20,
' - . 1978, and made three 6ajor points:
[ Continued] (1) the Appeal Board's interpre-tation of the pertinent agency regulations was reasonable; (2) because the Conunission's South Texas order. In The Matter of Ilouston Power anTDght et
'al.,5NRC1303(June 15,f977),
. se'tting in motion the statutory I i mechanism for antitrust. review was Interlocatory, the court of
- appeals does r.ot have Ju:-isdic-tion; and (3) in the circimi-stances of this case, the South Texas order, activating the l I mechanism for antitrust review at j the operating license stage, fully -
; comported with NRC's statutory ; antitrust respotisibilities. Briefs j - were flied on the same date by e
llouston Power & Light Co. and by I its joint applicants for the construction permit, the Cities 1 i of San Antonio and Austin. Pett-
- tiener's reply brief is due l
February 27, 1978. . In January, i 1978, the Court of Appeals con-so11 dated this case for the i purpose of oral argument with i Ft. Pierce Utilities Authority.
; et al. v. NitC, see ~ltem 27.
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37 CASE CASE SO41ARY STATUS ( '
- 25. New England coalf tlon on , FILED: July 11.-1977, July 28, 1977, The certified index of the record Ncclear pollution, et al.
January, 1978 is due to be flied Aug.'22. Since i
- y. NRC. et ai. (1st Cir. , ACTION: On July 11, the New England the petition for review is i Nos~ l'306, G42, 78-1013 Coalillon on Nuclear Pollution addressed to the_ Apper.1 Board's flied a petition for review of , decision insofar as it concerns the Appeal Board's April 7 Seabrook, this petition was .
decision Al.AB-390, which consolidated with the other ruled that under existing Com- Seabrook cases pending in the j First Circuit. See items 13, 16, mission regulations considera-t Lion need not be given in a and 22. Wo expected that the First
- licensing proceeding to the Circuit would wish to dispose of reasibility of devising an all challenges to construction at emergency evacuation plan for Seabrook'in a single proceeding.
i ; persons located outside of Our-defense of this aspect of the
! Seabrook controversy will turn on the low population zone for l the particular facility. The settled principles that an .,
' I Appeal Board's decision came agency's interpretation of its. In consalidated cases involving own regulations is entitied to
~
Seabrcok and NEP. substantial deference and that I
' hence the Appeal Board did not Ori July 28, the Coalition mis-read the Comission's emer-I. brought No. 77-1342 to review gency rules. The cases, along ALAB-422 and 423 which affirmed with No. 77-1219, are cons 011- ! the licensing Board decision dated. Petitioner's brief was and reinstated the Seabrook con- flied March 6, 1978. Our-l' l
struction pennits. response is due' April 26.1978. . j
- On Jan. 10, 1978, the Coalf-Lion brought No. 78-1013 to ~
i review the Comission's Jan. 6 1978 Seabrook decision, which af finned the Appeal Board dect-- <1 sions, which were the subject i of 77-1342. The contested issues Include financial qualf fications, s l l i- NEPA, wat1 .; quality, and the .
*.... Inmediate Gffectiveness of licenses. d
,__ . _. , 6 t 38 .
! CASE CASE
SUMMARY
STATUS I
, 26. United States of America and FILED: July 19,1977 lhe complaint was filed July 19.
i Ihe Trustees of Columbia ACTI0ft: The United States, on behalf The City has 20 days to which to University in the City of New of NRC and ERDA, and Columbia answer the complaint. Cross-York v. City of flew York University, filed a joint notions for summary judgment TS.D.N.Y.,110. 77 Civ. 3485) com I have been flied and the case is
- llew'York plaintasserting against thethatCity the of awaiting placement on the argu-i City's refusal, on radiological nient calendar. We argue that health and safety grounds, to the Atomic Energy Act preempts permit an fiRC I f censed reactor local authorities from regulat-to operate violates the .
Ing tiie healta and safety aspects Supremacy Clause of the United of nuclear reactor operation. St ates Constitution. The com-plaint seeks a declaration and injunctioit sgainst enforcwnt of Section 105. 107(c) 0; the
; City's Ifealth Code which per- ,
i ports to require a City radio- I
- P.gical health review and perm,and safety it for opera-tion of an NRC, licensed reactor.
E B I
\
e a' l I
. 4 ;-. 39
. CASE CASE SUt11ARY STATUS
- 27. f t. Pierce littlities Authority FILED: September,1977 Petitioners have asked the Court
[tiieCityofFt.PTerce, ACTIori: Petitioners seek review of the of Appeals to review two related et al . v. FIRC, et al . , D.C. Cir. , dental of their request for an Conmission actions. tio. 77-1925 Nos. 77-21DlT77 lTX5 order ta show cause and review concerns a Sept. 9, 1977 Order of ALAB-428, which the Conmis- of the Acting Director, Office sion declined to review, arguing of thrclear Reactor Regulation, that f1RC may initiate antitrust denying petitioners' request for
. at any time, independent of an order to show cause. tio.
licensing reviews. 77-2101 seeks review of ALA8-428 an Appeal floard decision which the Conmission declined to review. In both instances, Petitioners requested a Commission antitrust review with respect to operating facilities. Construction permits for these i facilities had been issued before j Sec.105c of the Atomic Energy Act (defining Conmission anti-trust review procedures) was i amended to its present form in 1970, and at a time when pre-
~
Itcensing antitrust review ty the Commission Nas neither j required nor expected in the case of Sec.104b projects. As i~ ' in Central Power & Light Com-pany v. fiRC, above, petitioner
- argues thE Sec.106 authorizes 's the Conmission to initiate anti-
- trust review of a license at any time, independent of flRC two-step licensing. flRC flied
~ ; g
[ Continued]
. z. . . .,. , ,
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nun a3: i 40 CASE CASE SUFfiARY STATUS Ft. Pierce Utilities v. NRC ' the certified index of the [
; administrative record on Nov.15, !
[ Continued] 1977, and supplemented it on i Jan. 24, 1978. Petitloners* : brief has been filed and ours ! is due in April. I
- 28. Public Service Company of New FII.ED: September 16, 1977 Briefs wera filed with the Court llampshire v. NRC, et al. ACTION: The lead applic' ant scught by'Dec. 1977. Oral argument was {
' Il s t Cir. , No-- 77 T413T . review of that portion of heard on Jan. 3, 1978. The case ALAH-422 which provides is awaiting decision. ; tha t, based on NEPA, the l
- Connission can order an
- appilcant to change the i routing of its transmission lines to mitigate environ-mental damage.
I
! 29. Natural Resources Defense FIltD: August 25, 1977 The NRDC brief was filed on Nov.
i Council v. NRC, 2d Cir., ACTION: NRDC flied a petition to review 7, 1977. Our brief was flied'on
! No. 77-4157 the Conmission order denying Jan. 13, 1978. Oral argument i NRDC's request for a rulemaking was heard March 15 and the case proceeding to detennine whether is awaiting decision. ,' radioactive wastes generated in .
ie hoclear reactors can be safely ll . disposed of and to suspend j , licensing of plants during the i 2 Interim. i i i h* '
. w. u
~ _ _ _ _ '. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
u.ia ;.1 - ai= u v 6 i .. 41
.. 9 CASE CASE Sulf 1ARY STATUS . 30. Utility Workers of America, FILED: July 29,1977 On August 5, the district court .. Local 1-2 v. Consolidated ACTIONt plaintiffs flied an order to denied the motion. pla inti f fs !
Edison Company of New York show cause why the flRC appealed. On Oct. 26,.1977 the and hRC, S.E N.Y., 77 Civ. physical search requirements union voluntarily dismissed its 3688 (NK), 2d Cir., No. were not unconstitutional case when flRC delayed the effec-77-6131 under the fourth and fourteenth tive date of its search require-amendments. ments in order to study the.
; , issue further. ,' 31 llarthd G. Drake, et al. v. FiltD: July 29, 1977 NRC moved to dismiss the case Detroit Edison Company, et ACTION: plaintiffs filed their com- for lack of jurisdiction. On iR., E.D. Mich., No. plaint challengino the sale by dan. 19, 1978, the court found G77-364 CA7 Detroit Edison Company to the court had jurisdiction but Northern flichigan Electric Co. stdyed further court proceedings ' Inc. and to Wolverine Electric until NRC completed action on the Cooperative, Inc. of 11.28% and the plaintiff's 2.206 petition.
0.78% respecively of Detroit Edison's proposed Fenni Unit
. No. 2. plaintiffs filed a 2.206 complaint with NRR
- 32. Atlantic County, et al v. FiltD: October 6, 1977 Since the constitutional issue i hRC, et al . , 0.N.J. , No. ACTION: 1our coastal New Jersey is now pendthg before the Supreme 77 20// counties sued NRC and the Court (see item 4), we have
! utilities which serve south stiphMted that this district dnd central New Jersey with court action should be stayed
, nuclear power, challenging the pendthg the Supreme Court's constitutionality of the decision. Judge Brotman .
price-Anderson Act. approved the stipulation on 1 tiovember 23, 1977. I I e
- _ - _ _ - - _ _ . - - _ _ - - - - _ - - - - - . - - - - - - = - - - - - - - - - - - - - - - - - - - - - - - - - - - --
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" 42 2
CASE CASE SUtilARY STATUS 5
, 33. Westinghouse Electric Corpora- FILED: Iebruary 17, 1978 (Nos. These are a-series of cases tion v. HitC. 3d Cir. Nos. 70-1188 and 78-1189) challenging the Conmission's Dec.
, 7 M 188 .hd 78-1189 february 21, 1978 (other cases) 23 order closing down GESMO and -
ACTION: Petitioners sued NRC in various related proceedings. We will . and circuits to contest the Dec. 23 move to consolidate them all in Conmission order to tenninate the Third Circuit once the Exxon Nuclear Compan L, Inc. v. the GESMO proceeding. The Conmission issues its further NRC, 9th Cir., No. 78-l W J nature or the suits may be statement or reasons to supple-
. essentially protective, pending ment its Dec. 23 order. , and issuance of a memorandum of l
decision to support the Dec. 23
. Allied-General Nuclear Services order. ! v. NRC, D.C. Cir. No. 78-ll W and -
I Scientists snd Engtheers for l~- Secure Energy, iflilltlantic Legal i foundation, and Capital Legal ; Foundation v. NRC, 3d Cir. , No.
. 78-1204. ,
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) Cast CASE SUPNARY s STATUS
- 34. Lewis et al. v. NitC and TVA FILED: December 12, 1978 On an appilcation for a TRO the j TN.D. Miss., No. EC-77-237) ACTION: A group of University of court ordered the NRC to afford 4 Mississippi law students 30 days notice of the time and h interested in making Ilmited place of hearing for the plain-appearances in the Yellow tiffs' benefit. The Consnission
- Creek proceeding sued NRC has compiled with tha request and arguing that they had not the case was dismissed on Marcii received the 30 days' notice 15, 1978. .
of the time and place of the
, hearing in violation of the
! Atomic Energy Act and NRC regulations.
l
! 35. ChaunceyAford. v. NRC. et al . FitED: February 27, 1978 _
On February 28. the court D. C. Ci r. , lo. 78-1160 ACTION: Petitioner sued -to stay ordered a stay of. the status
; opecation-of the Three Mlle quo pending argument and further i
Island No. 2 facility based order of the court. The court
. primarily on the level of clarified that order to mean radon-222 releases from that the reactor could not ,
I tallitigs piles from uranium attain critica11ty. NRC l mining and milling. responded on March 2,1978 arguing that petitioner had hot-met the Virginia Petroleum j -
. Jobbers criteria for a stay.
. Argument was heard on March 3 1978. On March 8, 1978, the court denied the motion for a 3 \
- stay. But on March 22, 1978, the court held further review in abeyance pending completion of the administrative appeals and ordered NRC to flie periodic status.
reports with the court. d L m.: __ - . . a
- y Id I 5 Edd . *.E - 5 . '
l 44 CASE CASE SUtflARY STATUS
- 36. People of the State of Illinois filed: February 7, 1978 The Consnission did not review
- v. _NRC, et a l. , 7th Cir. , No. ACTION: 1111nois petitioned to review the staff determination.
78-1171 the dental of its 2.206 1111nols' brief will not be request for an environmental due untti April, ours in May.
; impact statement regarding "converslon" of the General Electric Morris Illinois -
facility into a long-term storage facility for spent fuel. The petition alleges a violation of NEpA.
- 37. A.R. Martin-Trigona v. NRC, FILED! December 6, 1977 Our answer.is due April 17.
I N.D. 111., Civ. No~ , ACTION: plaintiff alleged that NRC We supplied the U.S. Attorney our. l 77C 4454 must prepare an envimnnental reasons for dismissing the suit i impact statement for the which include our compilance with
! (0'llare Shipments Case) transportation of radioactive NEpA through publication of- the materials through congested NRC's Environnental Impact State-toetropolitan areas, specifically ment on the Transportation of Chicago's O'!!are Airport. Radioactive Haterials by Air and 1 Other Modes (Dec. 1977).
! FILED: January 30, 1978 Our answer is due in April.and
- 38. A.R. Martin-Trigona v.1De t of Jus tice, et al. , 5.D. Ill . , ACTION: Plaintiff sued the Justice we have advised the Department No. 78-4006 Department, Connonwealth of Justice of the Exemption 7 tdison, and the NRC concerning basis for withholding the Quad
, (F.0.I.A. case) the witholding under the FOIA Cities report.
. of documents pertaining to the j
Quad Cities power station. . t . h
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45 l l ' CASE CASE Sulf 1ARY STATUS l t l' '. 39. A.R. Hartin-Trigona. v. HRC and FILED: February 24, 1978 The complair.t was served l liniv. of IlTiii61s, N.D.111. , ACTION: Plaintiff sued flRC and the March 6, 1978. Our response is l Civ. No. 18C 690 University of Illinois due on May 6. alleging that the University,
> an NRC Ilcensee, is disposing of radloactive wastes by mixing them with fuel oil for combus-tton in Its power plant and
, that itRC has negilgently per-mitted this practice. Plaintiff j demands an end to the practice, safe waste disposal and an EIS for waste disposal.
, 40. Coalltion for the Environment. FILED: October 5, 1977 On December le 1977, the court i 3EGliis Region and Utility ACTION! Petitioners challenged the held this case in abeyance
' issuance of a construction untti 30 days after the Supreme Consumers Council of Missouil
- v. NRC, D.C. Cir. , tio. 77-1W5 permit for the Callaway Nuclear Court's decision in the Vennont.
Plant based on a challenge to Yankee case.
; the Comission's interim fuel i cycle rule. ; 41. Tibor Fischer v. Nuclear FILED: March 7, 1978 The compialnt falls to state a i Engineers of Jackson lleights ACTION: Plaintiff sued seeking " dis- cause of action. We have and NRC, U.S.D.C., E.D.N.Y., charge and release from advised the U.S. Attorney to s'eek . , Civ. If6. 78C 259 scientific talks and burning dismissal. Our time to answer pressures." expires about May 7.
i 1 4 4
mum . . _ :cu , e . ;. . , i I 46 CASE CASE
SUMMARY
STATUS
- 42. Mississippl Power and light Co., FILED: March-14, 1978 . The record will be filed in et al. v. HRC, et al. , 5th Cir. , ACTION: Petitioners (three utili ty the Fifth Circuit. Urlefing No. 78-1565 groups) and sixteen Inter- should be completed in May or ,
ver.or utilities sued the NRC done e on the Feb. 9, 1978 amendnents I to Part 170 which increased license fees. The utilities allege that NRC exceeded its statutory authority in setting the fees. They seek a declara-tion that the fee scheudies are lhvalid, a suspension of collec-tions in the interim, and remand to NRC to refund all fees collected under the 1973 schedule amendment. I a s
\ *
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a w, 47 i CASE CASE SUK1ARY STATUS k., . ( 1 43.' Basdekas v. IIRC, et al. . FILLD: March 17, 1970 Dur answer is due April 20. D.D.C. 110. 78-0465 ACTIort: Suit by i1RC employee to compel l disclosure of documents under I uie r0IA and Privacy Act. Those records are an OIA inves-l tigative report and two OGC i
- memoranda.
- 44. FILED: Ilarch 13, 1978 Our answer is due in llay 1978.
A.R. Hartin-TrJona 1
- v. _ State 0f 111Inois IIRC and ACTIOrl: P1alutiff seeks to declare
-l liiiclear Engineer!iiiffompany, the waste deposit site at fl.D. Ill.,110. /8CJ17
~
Shef fleid, Illinois illegal i under state nuisance law. fio particular relief is I sought against IIRC. , 45. State of Flinnesota, by the FILEU: March 23, 1978 At this time, the lawsuit is liinnesota Pollution Control ACT10il: Minnesota seeks review of the protective, since the Connis-Agency v. fillC and the United Appeal Board's decision in slon extended the time for its l Sta tes, D.C. Cir. , flo. 78-1269 ALAB-455 filorthern States review. I Power Co.), which authorized l expanded spent fuel storage at the applicant's Prairie Island '
! facil i ty.
I i D
- l. , .
. - . . _ _ _ _ ___.-___.-_._.__..._-_____m_____m-_. . . . _ _. N
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( i 48 CASE CASE SUff1ARY STATUS
- 46. People of the State of Illinois Fil_ED: flovember 10, 1977 The Conmission authorized a
- v. flRC and fluclear_ En9tneering ACT10ll: Illinois seeks an injunction to settlement of fer on Dec. 21. On Corp., N.D. Ill., 110. 77C 4B o require flRC to act on the Feb. 14, 1978, ilRC answered the license renewal application for complaint. plaintiff moved for iluclear Engineering's Sheffield suninary judgment on Feb. 24. On site, pending since 1968. The liarch 10, plaintiff flied its
- State seeks to restrain ilECO supporting memorandum. NRC has from accepting or burying any moved for an extension of time - additional low level waste to respond to April 14, 1978. untti the itRC acts. The com-l plaint states that failure to act is both an ' abuse of discre-lion and a HEPA violation. I i l . l f y [
- 1 0
4
l E RADIOGRAPHf OVEREXPOSURES p.
.e h"
b, Radiography overexposures are a continuing problem. During 1976 and 1977 M a number of radiography overexposures fell into the category of and were reported as Abnormal Occurrences. ... c The staff has developed and is implementing an Action Plan to reduce [g : radiography overexposures. g-Key components of the Action Plan are: ffjI $ W
-- development of standards for training radiographers; !=
-- assurance of licensee commitment to the training standards .;
"=
through amendment of 10 CFR 34 or license conditions;
-- development of performance criteria and requirements for C
radiography devices;
-- use of existing authority to review device designs in tems :
of the performance criteria; -
-- development of enforceable requirements for the safety of .
radiographers;
-- improved requirements for alarms and radiation monitoring is devices.
E~ The Action Plan is being implemented during 1977-78. As part of this activity, the Commission has published for public comment proposed amendments to 10 CFR 34 dealing primarily with procedures for safe ' operation of radiography devices. The Commission has also published an advance notice of proposed rulemaking identifying for public comment :.. certain design features for radiographic exposure devices which will be considered as regulatory requirements. ; 4 4 a. l l I.
- 1 5
NJ
. :.I 77 UU.
.i.L..'. .,..~..,
i M. INCREASING FUBLIC. PARTICIPATION , ( ' i # a .' {# The desire for greater public carticipation in regulatory proceedings [ll @
- A
'is one aspect of the prevalen't' fervor for regulatory refom. Passage -
of the Freedom of Information Act and the Government in the Sunshine 5 Act reficct the Congressional response. In addition to implementing new procedures under these Acts, the NRC has indicated its own cocmitment' to greater public participation in its proceedings through g a number of actions. . m Freedom of Information Act All Federal agencies, including the NRC, are subject to .the Freedom of Infomation Act. This Act provides that NRC must , fumish any requestor with any NRC document, subject to certain { well-defined exemptions. The chief exemptions utilized by the NRC are: .@ 1::. p )
.)
.._.n
-- Exemption 1, classified information. '
-- Exemption 4, proprietary infomation (generally, cormercial infomation furnished to NRC by licensees in connection :
with the license review process).
-- Exe.:ption 5, int'eragency and intra-agency advice, opinions, (M and reco:nendationsh the disclosure of which would harm .
- ]
the agency's internal cecisionmaking process.
~
NRC also receives requests for dobuments originating in other agencies, and these requests are generally referred to the ~= originating agency. ~ 9
- i. 71
?
Government in the Sunshine Act All agencies headed by a collegial body, the members of which are appointed by the President, are subject to the Government .x in the Sunshine Act. This Act requires NRC to open to the public all meetings attended by a quoraa of the Comission when these meetings "detemine or result in the joint conduct of official Comission business." As with the Freedom of Infomation Act, there are a nu-her of " specific exe ptions available to the Co = ission, and the chief ones utilized by the NRC are:
-- Exemption 1, classified info =ation. U F
9 9 a -,e.e. g a e e
Public P'articipstion - 2 g 7;iiis '
~
g-> -- Exemption 4, trade secrets and comercial proprietary infor-mation; . .
-- Exemption 6, information of a personal nature, the disclosure of which would constitute a clearly unwarranted invasion of
- personal privacy; .
-- Exemption 9, information of which the premature disclosure would be likely to significantly frustrate implementation of proposed Comission action (e.g. legislative strategy)
-- Exemption 10, litigation and adjudicatory matters.
In. addition to the foregoing exemptions which permit the Commission to close a meeting, the Comission's rules provide for two types of. gather-ings which are not considered " meetings" under the Act -- social or - ceremonial gatherings, and Comission briefings by representatives of other agencies or representatives of foreign governments, where such briefings are informational and not specifically.related.to any matter pending before the Commission. - The Sunshine Act is a relatively new statute and the Cammission's First "E Annual Report on Administration of the Government in the Sunshine Act of 1976 has recently been furnished to Congress. ; During the past six months, under the chairmanship of Dr. Hendrie, the . ratio of open meetings to closed meetings has steadily increased. For example, 64 percent of Comission meetings were open during the period From October through December 1977, 70 percent were open from January . ; E through March 1978, and 89 percent were open in from March through May. In further implementation of the Sunshine Act, the Commission has approved the transcribing of open meetings and placement of an unoffi- R cial transcript in the headquarters Public Document Room, the unob- , trusive use of electronic recording devices, and the release of staff n papers which are the topics of open meetings. The Commission has also M agreed to permit limited use of television cameras at licensing hearings < in buildings where television cameras are permitted. . Intervenor Funding , In view of the often-extensive costs associated wi th participation in an NRC proceeding, there has been considerable public and congressional discussion of providing funding to intervenors where such funding would assist them to contribute to the record. l Following extensive rulemaking on the question of intervenor funding, the NRC issued a policy statement in November 1976 which denied funding of participants in NRC's regular licensing and rulemaking proceedings. The Commission's decision was based on its findings that the funding of participants in government proceedings was a social policy question, and that a non-elected regulatory comission should not expend public funds to support private viewpoints without specific congressional autho-ritation. l i
I I y -l Public Participation - 2 g G" J Several Members of Congress have indicated interest in including funds 4 for intervenors in NRC's FY 1979 authori:ation bill, and in fact, the Senate bill does contain such funding. In additen, the Administration's : Nuclear Siting and Licensing Act of 1978 includes a section which authorizes the Comission to establish a pilot program for funding i individuals or groups who intervene in NRC regulatory proceedings. Under pu . . .
"=
this provision, the Commission would establish criteria for determining the eligibility of intervenors for funding and the amount of funds to be provided. Public Involvement . NRC published amendments to its rules of practice in the Federal Register in May 1977, and following receipt of comments, NRC adopted new niles of practice. These rules make provision for amending and clari-fying issues for coordination, and for intervention by non-participants _ before an Appeal Board or the Commission as a " friend of the court." The new rules of practice, which became effective May 1978, are specifically designed to facilitate public participation in the facility . license application review and hearing process, mprove coordination with states, counties, and municipalities, and establish more reasonable time limits in the review and hearing process. .... The new rules include provisions for limited appearances by intsrested U members of the public at pre-hearing conferences as well as at hearings, and grant to interested counties and municipalities the right that States now have to participate in licensing hearings without taking a stand on issues. The rules also provide for participation in appeals before the ASLAB or Commission by a person in an " amicus" capacity and grant NRC licensing d "2 boards the authority to hold joint public hearings with States and other Federal agencies on matters of concurrent jurisdiction. 1
.i I
e I s
E p SEABROOK 5 h E The Public Service Company of New Hampshire applied to NRC for a license to construct a two-unit nuclear power plant near the New Hampshire seacoast town of Seabrook. The CP apolication was sub- 9 mitted in March 1973 and docketed in July 1973. f ASLB hearings Fald from May through Nov sber of 1975 aired a broad range
- of issues, including eight categories of issues under the Atomic Energy Act and 16 under NEPA. A total of 61 hearing days were in- [%
~
volved, including a reopening of the record in February 1976 on certain selsm1C 1ssues. The ASLB authori::ed issuance of the cps in June 1976, and h3C issued them in July 1976. The cps were conditioned on EPA approval of the cooling system to be used at the Seabrook facility. The CP was accept- p g able as long as once-through cooling was used, but the CP would bc ;. withdrawn if closed-cycle cooling were used or if EPA required it. l.L p.. The EPA Regional Administrator had issued a preliminaly determination on June 24, 1976 that the once-through cooling system was acceptable, but that further detenninations would have to be made on the exact location of the intake and discharge facilities. The ASLAB twice denied intervenor requests for stays of construction. . In November 1976, months after the Licensing Board's initial decision ,a
~
and commencement of construction by the utility, the EPA Regional Administrator vacated his earlier determination concerning the cooling system, stating that the applicant had not satisfactorily proven that once-through cooling was environmentally acceptable. 4 On January 21, 1977, the Appeal Board decided that the construction permits should be suspended, given the uncertainty of EPA approval of the cooling system. On March 31, 1977 the Commission left standing the Appeal Board's suspension, adding that there were certain circumstances under which construction could resume:
-- If Seabrook were found acceptable for closed-cycle cooling, when compared with other sites, then construction could resume on all portions of the facility except the cooling system.
-- If EPA were to approve once-through cooling for Seabrook, a then constmetion could proceed, conditioned on the
- resolution of the other issues remaining before the Licensing Board (e.g. seismicity, waste manegement) .
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, On June 17, 1977,. the EPA Administrator approved once-through cooling for the'Seabrook site, and on July.26, 1977 the Appeal Board allowed :
construction to resume. On February 15, 1978, the Court of'ppeals A for the.First Circuit g; overturned on procedural grounds the EPA Administrator's June 1977 decision, and remanded to him for further proceedings. Shortly there- a after, intervenors moved to suspend.the construction permits. The = Appeal Board found itself unable to decide the suspension question: in an April 28, 1978 decision it left the permits in effect, but referred .
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ths suspension question to the Commission.'
.:.h Meanwhile, other unsettled issues in Seabrook include the question of whether, under NEPA, further consideration must be given to alternative-sites in southern New England. In its April 1978 decision the Appeal Board ruled that further consideration is required. The. staff has petitioned the Commission for review.
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Seabrook - 2 . , .- !i J On June 17, 1977, the EPA Administrator approved once-through cooling for the Seabrook site, and on July. 26, 1977 the Appeal Board allowed p construction to resume. 6 yj in m ~ On February 15, 1978, the Court of Appeals for'the First Circuit [ overturned on procedural grounds the EPA Administrator's June 1977 E . decision, and remanded to him for further proceedings. Shortly there-after, intervenors moved to suspend the construction permits. The " !!4 Appeal Board found itself unable to decide the sitspension question: # in an April 28, 1978 decision it left the pemits in effect, but referred ' "~ i the suspension question to the Commission. Meanwhile, other unsettled issues in Seabrook include the question of whether, under NEPA, further consideration must be given to alternative ' sites in southern New England. In its April 1978 decision the Appeal g-Board ruled that further consideration ir required. The staff Ave d peti u ned the Commission for review. \ ? V .3.
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l Seabrook has sharply accentuated some troublesome gaps in our policy on alternative site evaluations. These gaps gave rise to widely differing
/' f~ interpret ations of requirements by applicants, staff, intervenors, and Licensing Board and Appeal Board members.
y%4 h pose difficult policy formulation problems. TheNonetheless, gaps., i.dentifi d 1;% M I believe they m can and must be dealt with.
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The.. Commission is seriously concerned about implications of
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c6ntinuation of construction of nuclear power plants while 6hh11enges to the construction permits are under adjudica-blon.67 Potential issues include the following: . . I Irrevocable changes can be made in the site
......environmcnt during review. - :- . . ... .-
- Large sums spent on construction, ultimately
'~ ' derived fron the rate-paying or tax-payin ;
.':. 7,public, as well as from investors, are being l q
placed at risk. > Constructiion work tind'e'rway can create psycho-d -.. log.ical pressure en decision makers to uphold
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( *. micht ultimately prove to be the' decisive factor O '. . z.in tipping a EE.?A cost.-benefit balance "in favor , of a plant, when the balan6e before construccion i ,
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The Commission. i i_' 33a study to be made of the present 9 g licensing. process in order to develop options for dealing . with these and related issues without undue damage to other regulatory objectives. J -- 4
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