ML20039C786
| ML20039C786 | |
| Person / Time | |
|---|---|
| Issue date: | 12/11/1981 |
| From: | NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| References | |
| NUDOCS 8112300222 | |
| Download: ML20039C786 (46) | |
Text
G
~
December 11, 1981 PREPARED BY THE OFFICE OF THE GENERAL COUNSEL
SUMMARY
OF AEC-NRC LITIGATION A.
Reported Cases Akron, Canton & Youngstown R.R. v.
ICC, 611 F.2d 1162 (6th Cir.
1979), cert denied 49 U.S.L.W.
3027 (October 6, 1980)
On August 3, 1978 the eastern railroads sought review of an ICC decision ordering the railroads to publish tariffs for the carriage of spent fuel.
On December 20, 1979 the Sixth Circuit affirmed the ICC, ruling that the railroads had a common carrier obligation to carry spent fuel.
The court also decided that the ICC should defer to NRC and DOT for setting industry wide safety standards for the carriage of radioactive materials, but the ICC may allow individual carriers to make more stringent rules.
Boswell v. City of Lono Beach, CCH ATOM.EN.L. REP. Para. 4045 (Los Angeles Superior Ct. 1960)
The Court held that a municipality cannot arbitrarily deny issuance of a city license to a person or firm licensed by the AEC to collect, package and dispose of radioactive material in the ocean.
BPI v.
Atomic Energy Commisnion, 502 F.2d 424 (D.C.Cir. 1974)
The Court held that 10 CFR 2.714(a) which requires identification of the specific aspects of the subject matter as to which inter-vention is sought and the particularization of the bases for con-tentions with regard thereto is not inconsistent with S189(a) of the Atomic Energy Act which provides that a hearing shall be granted upon the request of any person whose interest may be affected by the proceeding.
(PPAIRIE ISLAND)
Brooks v. Atomic Eneroy Commission, 476 F.2d 924 (D.C. Ci~r. 1973)
The Court held that property owners and residents of the area near the site of construction of a nuclear power plant were entitled by statute to notice and opportunity to be heard on the question of whether power companies had shown good cause for extension of the completion dates of a CP.
(D.C. COOK) 8112300222 811211 PDR MISC PDR
O 4
2 Calvert Cliffs ' Coordinating Committee v. United States Atomic Energy Commission, 449 F.2d 1109 (D.C. Cir. 1971)
The Court held that courts have the power to require agencies to comply with procedural directions of NEPA and that the AEC's rules (1) precluding the review of non-radiological environmental issues unless they were specifically raised (2) prohibiting the raising of such issues in certain pending proceedings or when the issues have been passed on by other agencies, and (3) precluding their consideration between the grant of a CP and consideration of the grant of an OL, did not comply with the Act.
(CALVERT CLIFFS)
Carolina Environmental Study Group v. United States, 510 F.2d 796 (D.C. Cir. 1975)
The Court held that (1) viewing the record as a whole, it could not be said that the general consideration by the AEC of the probabilities and severity of a serious reactor accident amounted to a failure to provide the required detailed environmental impact statement, ( 2) the AEC properly considered all ressonable alternatives to the propcsed action and (3) the record failed to establish that the AEC acted with a bias in favor of development of commercial nuclear power.
The Court applied NEPA's rule of reason to approve AEC's treatment of a catstrophic Class 9 acci-dent at a nuclear power plant as remote, and not subj ect to full treatment in an EIS.
(CATAWBA)
Cities of Statesville v. Atomic Energy Commission, 441 F.2d 962 (D.C. Cir. 1969) (g1 banc)
The Court held that although CP's have been issued under 5104b of the Atomic Energy Act (relating to R&D licenses), OL's must be issued under $103 (related to commercial licenses) and be subject to antitrust review if the AEC concludes nuclear electric facili-ties are of practical value for commercial uses.
(OCONEE &
VERMONT YANKEE)
Citizens for a Safe Environment v. Atomic Energy Commission, 489 F. 2d 1018 (3d Cir. 1974)
The Court held that what is reviewable in the Court of Appeals in a licensing proceeding at the behest of a party thereto is final action on the license and, accordingly, that the AEC's order denying the motion of petitioners, for financial and technical assistance was not reviewable.
The petition seeking i
review of an AEC order was dismissed for want of jurisdiction.
(THREE MILE ISLAND)
3 Citizens for Safe Power, Inc. v. Nuclear Regulatory Commission,
- 524 F.2d 1291 (D.C. Cir. 1975)
Petitioners challenged the issuance of an operating license for Maine Yankee arguing that the Commission did not consider ade-i quately the " residual risks" of operation of the facility --
those risks which remain.notwithstanding full compliance with the applicable regulations of the Commission.
The court affirmed the Commission decision holding that the requirements of the Atomic Energy Act for issuance of a license are met when NRC regulations are satisfied, and that NRC adequately weighed the risks and benefits of plant operation in its NEPA review.
i City of New Britain v. United States _ Atomic Energy Commission, 308 F.2d 648 (D.C. Cir. 1962)
The Court held that the AEC had authority to grant a license to receive, store and dispose of low-level radioactive wastes and that the record supported its issuance.
(WALKER TRUCKING CO.)
I Coalition for Safe Nuclear Power v. United States Atomic Energy Commission, 463 F.2d 954 (D.C. Cir. 19 72)
Petitioner challenged a Commission decision denying its request that construction at the Davis-Besse facility be suspended pend-ing completion of the full NEPA review required by Calvert Cliffs'.
The court did not rule on the merits of the claim stating that petitioner had failed to exhaust its administrative remedies because the AEC provided the opportunity for hearing on denied suspension requests.
The court remanded the matter to the AEC and directed that in making its final decision on suspension of the construction permit, the agency must consider both the environmental harm caused by failure to suspend and the degree to which further construction might prejudice the Commission's final decision.
(DAVIS-BESSE)
Ccemittee for Nuclear Responsibilitv, Inc. v. Seabore, 463 F.2d 733, 788, 796 (D.C. Cir. 1971) j In three decisions the Court held that where conservation groups seeking to halt an underground nuclear test claimed that the AEC had failed to carry out the NEPA mandate and such groups sought to have the government produce documents which they alleged contained information needed to support their claim, the District Court's order directing the government to submit documents for in--
camera inspection by the Court, after excising all materials reflecting military and diplomatic secrets, was proper.
(CANNIKIN TEST) 1 1
Commonwealth of Kentucky v. NRC, 626 F.2d 995 (D.C. Cir. 1980)
On April 24, 1978 the Commonwealth of Kentucky sought review of ALAB-459, an Appeal Board decision which held that the Kentucky /
Indiana border was the 1792 low water mark on the northwestern or Indiana side of the Ohio River.
The issue arose when Kentucky claimed that the discharge pipe of the Marble Hill facility would be in Kentucky territory, and consequently that the Section 401(a)(1) Federal Water Pollution Control Act permit necessary for construction of the plant should have been obtained from Kentucky rather than Indiana.
The D.C. Circuit affirmed the Appeal Board, finding conclusive a March 24, 1980 Supreme Court decision in the related case of Kentucky v.
Indiana (S.Ct. No. 81 Original) which fixed the border as of the 1792 low water mark.
Concerned Citizens of Rhode Island, et al. v. NRC, 430 F. Supp.
627 (D.
R.I. 1977)
A local environmental organization sought to enjoin the NRC from acting on an application where the utility did not own the con-struction site.
Plaintiffs also claimed that NRC staff review would violate NEPA by unduly influencing GSA's NEPA inquiry into possible sale of the site to private parties other than the utility.
Judge Pettine declined to interfere with the Commis-sion's environmental review and dismissed the complaint holding that plaintiffs must await an adverse final order and then seek judicial review in the courts of appeals.
Judge Pettine held that actions of the NRC are not reviewable in a district court unless plaintiff shows (1) exhaustion of agency remedies (10 CFR 2.206) followed by review in a court of appeals is inadequate to provide relief and (2) that the agency has violated a clear, non-discretionary duty.
Conservation Society of South Vermont, Inc. v. Atomic ' nergy E
Commission, CCH ATOM.EN.L. REP. Para. 3596 (D.D.C. 1975)
The Court dismissed as moot, based on passage of the Energy Reorganization Act of 1974, a suit challenging the constitution-ality of the Atomic Energy Act on the ground that it vested both developmental and regulatory functions in the AEC.
Crowther v. Seaborg, 312 F. Supp. 1205 (D. Colo. 19 70 )
The Court held that the evidence established that the flaring of gas contained in the cavity created by a nuclear detonation would not present danger to the life, health or property of persons in proximity to the project.
(PROJECT RULISON)
O 5
s Culpeper League For Environmental Protection v. NRC, 574 F.2d 633 (D.C. Cir. 1978)
Petitioners challenged an Appeal Board decision concerning the routing of high-voltage transmission lines from VEPCO's North Anna Power Station.
Petitioners argued an alternate route would have been preferable from an environmental standpoint.
The Court consolidated these cases and affirmed the Appeal Board decision.
(NORTH ANNA)
Desrosiers v. NRC, 487 F. Supp. 71 (E.D. Tenn. 1980)
Plaintiff sued to enjoin the NRC from issuing a low-power operating license for the Sequoyah nuclear power plant without a public hear-ing.
On April 3 the district court dismissed the lawsuit for lack of jurisdiction.
(SEQUOYAH)
Detroit Edison Company v. NRC, 630 F.2d 450 (6th Cir. 1980)
On September 5,1980, the Sixth Circuit affirmed the Commission's denial of Detroit Edison's petition for rulemaking to exclude transmission lines and other off-site construction from regula-tion by the Commission.
The Court, following the reasoning in Public Service Company of New Hampshire v.
United States Nuclear Regulatory Commission, 582 F.2d 77 (1st CirTT, cert, denied, 439 U.S. 1046 (1978), found that because the Atomic Inergy Act provides the Commission jurisdiction over transmission lines, licenses can be conditioned to mitigate the environmental impacts of the routes of such lines.
The Court did not decide whether NEPA provides the Commission an independent source of substantive jurisdiction.
On October 22, 1980 the court denied petitioners' motion for rehearing.
Drake, et al. v. Detroit Edison Company, et al., 443 F.Supp. 833 (W. D. t!ich. 1978)
Plaintiffs sought to enjoin Detroit Edison's sale of a 20" owner-ship interest in Fermi Unit No. 2 to two electrical co-ops claim-ing that the sale amounted to an acquisition of a nuclear facility without acquiring a license from the NRC.
NRC moved to dismiss the case for lack of jurisdiction.
On January 19,19 78, the Court found that it had jurisdiction but stayed further proceedings until NRC completed action on plaintiffs' 2.206 petition.
See j
Drake v.
Detroit Edison, 453 F. Supp. 1123.
(FERMI) l l
[
l
6 Drake v. Detroit Edison, 453 F. Supp. 1123 (W.D. Mich. 1978)
Plaintiffs filed a 10 CFR 2. 206 petition with the Commission requesting it to take action against Detroit Edison Company for selling 20% of its interest in The Fermi 2 power plant to two electrical cooperatives without prict Commission approval.
The Director, NRR, issued a notice of violation but denied the requested suspension of the construction permit.
Upon renewal of the motion to dismiss, the Court held that the decision whether to institute proceedings or impose penalties is committed to agency discretion and is not judicially reviewable under the Administrative Procedure Act.
(FERMI)
Duke Power Company v. Carolina Study Group, Inc., et al., 438 U.S.
59 (1978)
Several citizens groups challenged the grant of a construction permit to Duke Power Company for the McGuire facility alleging that the Commission's NEPA review was inadequate and also that the Price-Anderson Act's limit on liability was unconstitutional.
In June of 1975 the Court dismissed the NEPA claims, but on March 31, 1977 ruled the limit on liability was unconstitutional.
431 F. Supp. 203 (W.D.N.C. 1977).
On June 26, 1978 the Supreme Court reversed upholding the constitutionality of the Price-Anderson Act's limitation on liability.
(McGUIRE)
Eason v. NRC, CCH NUC. REG. RPTR. Para. 20136 (D.D.C.,
Feb. 5, 1980),
affirmed, Ro. 80-1382 (D.C. Cir., Jan. 14, 1981)
Plaintiff sought under the Freedom of Information Act a subscrip-tion to Media Monitor.
The District Court ruled that the FOIA did not encompass documents not yet in existence and that the Commission had not withheld any copies of the publication since each issue of the Media Monitor is placed in the Public Document Room for inspection and copying.
The D.C. Circuit affirmed with-Dut opinion.
Easton Utilities Commission v.
Atomic Energy Commission, 424 F.2d 847 (D.C. Cir. 1970) (en banc)
The AEC held adjudicatory hearings on whether Philadelphia Electric Co. should be authorized to construct the Peach Bottom Atomic Power Station.
After the initial decision had been rendered by the Licensing Board and the Commission denied exceptions filed by one of the parties to the proceeding, petitioner filed a petition for leave to intervene and a motion for reconsideration.
The Commis-sion denied the requests finding the intervention petition to be l
i
7 untimely, and stating that motions for reconsideration can only be filed by parties to the proceeding.
The Court of Appeals sitting e_n banc affirmed the AEC decision.
Ecology Action v. Atomic Energy Commission, 492 F.2d 998 (2d Cir.
1974)
The Court held that evioentiary rulings by the AEC excluding from subsequent hearings issues of incremental effects on the environ-ment caused by (1) the mining and processing of fuel and the disposition of radioactive wastes, (2) the consequences of a major accident, and (3) the restrictions on consumption of electricity were not so patently wrong as to be considered a final order for purposes of conferring jurisdiction and dismissed a petition seeking review for want of jurisdiction.
(NINE MILE POINT)
Ecology Action of Oswego, N. Y. v. NRC, No. 78-1855 (D.C. Cir.,
March 12,.1980), 10 ELR 20293 On March 12, 1980, the D.C. Circuit affirmed the Appeal Board's refusal to stay the Sterling nuclear power plant construction permit and refusal to enjoin Rochester Gas & Electric Company from contracting for uranium to fuel the proposed plant pending Commission re-evaluation of the environmental impacts of the mining and milling or uranium.
The court agreed with the Commis-sion's argument that Ecology Action's assertion of irreparable injury from radon releases was contrary to the Congressional judgment contained in the Uranium Mill Tailing Radiation Control Act of 1978 that the risk from radon emissions can be limited to acceptable levels without stopping uranium mining and milling.
(STERLING)
Ft. Pierce Utilities Authority of tbg City of Ft. Pierce,'et al.
v.
United States, et al.,
606 E.2d 9T6 (D.C. Cir.), cert. denied, 444 U.S. 842 (1979)
Petitioners sought review of two related Commission actions denying an antitrust hearing.
Petitioners argued that a Commis-sion antitrust review cay be initiated at any time, independent of licensing reviews.
The Court of Appeals affirmed the NRC determination that the 1970 antitrust amendments to Section 105 of the Atomic Energy Act grandfathered facilities then under construction from antitrust revieu at the operating licensing stage.
The Court did not reach the broader issue of whether those amendments were the sum total of the Commission's antitrust authority.
(ST. LUCIE, TURKEY POINT) l l
l l
l
8 Friends of the Earth v. NRC, et al., No. C-80-0234-SW (N.D.
Cal., September 26, 1980), 11 Env. Rptr. (BNA) 1035, appeal dismissed, No. 80-4564 (9th Cir. May 11, 1981)
On Janucry 30, 1980, Friends of the Earth sued the NRC and PG&E to compel the NRC to prepare a supplemental environmental state-ment to discuss the consequences of Class 9 accidents at Diablo Canyon.
FOE argued that the TMI accident, various reports and recent analyses of accident probabilities such as the Lewis Report, GAO reports, etc. mean that the NRC can no longer cate-gerically exclude detailed discussions of Class 9 events as
" unforeseeable" for purposes of NEPA environmental analysis.
NRC's motion to dismiss the lawsuit for lack of subject matter jurisdiction was granted in August 1980, on the ground that the licensing proceeding, where the identical issues is pending for decision, was still ongoing.
A memorandum decision followed on September 26, 1980.
FOE appealed the decision but subsequently the parties at FOE's request stipulated to a withdrawl of the lawsuit.
(DIABLO CANYON)
Friends of the Earth v. United States, 600 F.2d 753 (9th Cir.
1979)
Petitioners sought review of the Commission's June 21, 1979 decision to re-start Rancho Seco after it had completed various TMI-related modifications.
On July 5, 1979 the court denied emergency relief stating that based on the record before it, it could not find that the Commission's order was arbitrary, capricious, or an abuse of discretion.
Subsequently, on Septem-ber 10, 1980, the court issued an order deferring action on the merits until completion of an ongoing Licensing Board hearing.
(RANCHO SECO)
Friends of the Earth v. United States Atomic Energy Commission,
485 P.2d 1031 (D.C. Cir. 1973)
The Court denied a motion for summary reversal of an order of the AEC which found no justification for an emeroency cutback of the authorized power level of nine power plants pending a staff review of fuel densification phenomena.
(NINE BUR's-FUEL DENSIFICATION)
Cage v. Commmonwealth Edison Company, 356 F.
Supp. 80 (N.D. Ill.
1972)
The Court held that the AEC's failure to perform an alleged duty imposed by NEPA did not constitute a " final agency order" subject
9 to review and that the AEC's alleged failure to prepare an environ-mental analysis prior to the utility's acquisition of land for a nuclear plant was not final " agency action" where there was no clear legal duty for the AEC to act before a CP was sought.
(LA SALLE)
Gage v. United States Atomic Energy Commission, 479 F.2d 1214 (D.C. Cir. 1973)
The Court held that it was without jurisdiction of a petition, for review of an AEC order promulgating rules designed to imple-ment NEPA, by petitioners (farmers seeking to bar land acquisi-tion prior to issuance of a CP) who were never parties to the AEC proceeding, and dismissed the petition saying that petitioners had come to the wrong forum with an inappropriate claim in search of an unavailable remedy.
(LA SALLE)
Garrett v. NRC, Civil No.78-269, 11 ERC 1567 (D.Or. March 31, 1978) and 11 ERC 1685 (D.Or. May 11, 1978)
Plaintiff claimed that removing spent nuclear fuel 'from the Trojan Nuclear Plant and placing it in the plant's spent fuel pool is illegal unless an environmental impact statement is prepared assessing the significance of prolonged storage at the Trojan site.
Magistrate George Juba denied both the plaintiff's' request for a temporary restraining order (finding no immediate irreparable injury), 11 ERC 1567, and the plaintiff's motion for a preliminary injunction (recognizing failure of the plaintiff to raise a substantial question regarding possible significant adverse environmental impacts), 11 ERC 1685.
The Court subse-quently issued a consent decree dismissing the complaint with prejudice.
(TROJAN)
Hamlin Testing Laboratories, Inc. v. United States Atomic Energy Commission, 337 F.2d 221 (6th Cir. 1964)
The Court denied a stay of an AEC order denying renewal of a by-product material license in view of the lack of a showing of a strong probability of succeeding on the nerits, a lack of a showing of irreparable injury and a lack of a showing that the stay would not be harmful to the public intercst.
l l
l
10 Hamlin Testing Laboratories, Inc. v. United States Atomic Energy Commission, 357 F.2d 632 (6th Cir,1966)
The Court held that in view of a pattern of continued violations and false reports by the licensee, there was substantial evidence to support the Commission's denial of its application for the renewal of its by-product material license.
Harris County, Texas v. United States, 292 F. 2d 370 (5th Cir.
1961)
The Court held that the AEC's authority to issue licenses to handle by-products included authority to license the handling of radioactive waste material and that its finding must be sustained unless the record is completely bare of supporting evidence.
Hodder, et al. v. NRC, et al., 589 F. 2d 1115 (Table), 9 ELR 20058 (D.C. Cir. 1978), cert. denied, 444 U.S. 829, rehearing denied, 444 U.S. 974 (1979)
Petitioners challenged the construction permit for St. Lucie Unit 2.
The D.C. Circuit rejected the challenge holding that NRC was not legally required to evaluate Class 9 accidents for NEPA purposes, that the Part 100 siting regulations were properly applied, and that the investigation of five alterna-tive sites satisfied NEPA.
(ST. LUCIE)
Honicker v. NRC, et al., 590 F. 2d 1207 (D.C. Cir. 1978), cert.
denied, 441 U.S. 906 (1979)
Petitioner sought expedited review of an NRC denial of her emergency petition which requested shutdown of nuclear plants throughout the country.
The Court granted expedited review, but dismissed for lack of jurisdiction finding that the denial was not a final order or final agency action subject to judicial review.
Honicker_ v. Hendrie, et al., 465 F.
Supp. 414 (M.D. Tenn.),
aff'd, 605 F.2d 556 (Table) (1979), cert, denied, 444 U.S.
1072 (1980)
Plaintiff sued the NRC seeking revocation of all licenses and dismantling of all existing fuel cycle facilities alleging that the NRC had permitted nuclear power reactors to operate while underestimating the magnitude of health effects of the i
nuclear fuel cycle.
The federal district court denied a tempor-1 ary restraining order and thereafter dismissed the case for lack i
l l
l
j 11 of jurisdiction on January 16, 1979, findingfplaintiff failed to i
exhaust available administrative remedies and that final agency j
action was available in a court of appeals.
The court of appeals, after briefing and argument, affirmed based on the deci-sion of the district court.
Hunt, et al. v. NRC, et al., 468~F. Supp. 817 (N.D. Okis.); aff'd, 611 F.2d 332 (10th Cir. 1979), cert. denied, 100 S.Ct. 1084 (1980)
Plaintiffs argued that under the Government in the Sunshine Act the Licensing Board could not conduct a closed session to discuss a report containing proprietary data.
The district court dismissed the action holding that the Sunshine Act did not apply to the Licensing Board.
The 10th Circuit affirmed.
(BLACK FOX) 4 Izaak Walton League of America v. Schlesinger, 337 F. Supp. 287 (D.D.C. 1971)
The Court enjoined the AEC from issuing an interim operating license pending final disposition of a suit to compel the AEC to prepare an environmental impact statement in accord with NEPA.
(QUAD CITIES)
Johnsrud, et al. v. Jimmy Carter, et al., 620 F. 2d 29 (3rd Cir.
1980)
Petitioners sought a' court order directing the President to warn residents near Three Mile Island of danger to their health of radiation emanating from the plant.
The Court dismissed for lack of subject matter jurisdiction af ter holding that issues peti-tioners raised were political questions.
The action against the United States was also dismissed because the Court found it was immune from unconsented suits under the doctrine of sovereign immunity.
(THREE MILE ISLAND)
Kepford v. NRC, et al., No. 78-1160 (D.C. Cir. March 8, 1978),
CCH NUC. REG.RPTR. Para. 20,075 Petitioner sued the NRC to secy operation of the Three Mile Island Unit 2 facility, primarily because of the level of radon-222 releases from tailings produced in uranium mining and milling.
The Court denied petitioner's motion for a stay on the ground that plant operation was not directly related to radon emissions so that no showing of irreparable injury had been made.
(THREE MILE ISLAND)
12 Lloyd Harbor v. Seaborg, 2 ERC 1380 (E.D.N.Y. 1971)
The Court dismissed for want of jurisdiction an action seeking an order (1) enjoining continuation of an AEC proceeding and (2) directing the ASLB to take evidence concerning thermal-pollution effects and otherwise comply with NEPA.
(SHOREHAM)
Lloyd Harbor Study Group v. NRC (D.C. Cir., No. 73-2266), 435 U.S.
964 A citizen group challenged issuance of the Shoreham construction permit on the grounds that the NEPA review was deficient in that it:
(1) reserved for generic treatment the environmental impact of the uranium fuel cycle; and (2) failed to consider the conse-quences of a class 9 accident.
On November 9, 1976, the D.C.
Circuit entered a one-page order which dismissed the Class 9 con-tention on the basis of CESG v. AEC, 510 F.2d 796 (D.C. Cir. 1975),
but remanded the fuel cycle aspect of the case for further consider-ation in conformity with NRDC v. NRC, 547 F.2d 633.
On April 18, 1973, the Supreme Court vacated the fuel cycle aspect of the D.C.
Circuit's order in light of the Supreme Court's Vermont Yankee decision.
435 U.S.
964.
The Class 9 aspect of the order was confirmed by a D.C. Circuit order dated November 30, 1978.
(SHOREHAM)
Lorenz v. NRC, 516 F.
Supp. 1151 (D. Colo. 1981)
In a lawsuit brought December 31, 1980 to compel the NRC to release the complete text of a document which evaluated a prospective employee's suitability for employment with the Commission, federal district court Judge John L.
Kane, Jr.,
granted summary judgment for the Commission.
The withheld portion of the document would have identified a person who gave his evaluation of Mr. Lorenz under a pledge of confi-dentiality.
Judge Kane ruled that the Privacy Act entitled the NRC to withhold information which would reveal the identify of a confidential source, and that the Commission's implementino regulations adequately stated that purpose.
Maun v.
United States, 347 F.2d 970 (9th Cir. 1965)
The Court held that the AEC may not construct and operate an overhead electric transmission line in disrecard of local authority and regulations governing the character and location of such lines.
( STANFORD LINEAR ACCELERATOR)
l 13 Mid-America Coalition for Energy Alternatives, Inc. v. NRC l
l 590 F.2d 356 (Table), 12 ERC 1718 (D.C. Cir. 1979)
The D.C.
Circuit affirmed NRC's decision to permit construction of the Wolf Creek Station, holding that petitioner's proposed alternative to the nuclear power plant was raised too late and 4
that the NRC gave proper independent consideration to alternative sources of power generation in its environmental statement.
(WOLF CREEK)
Mississippi Powec and Licht Co., et al. v. NRC, 601 F.2d 223 (5th Cir. 1979), cert. denied, 444 U.S. 1102 (1980)
A number of utilities sought review of a licensing fee schedule adopted by the Commission in 1978 arguing that the fees violated provisions of the Independent Offices Appropriation Act.
Peti-tioners sought to have the 1978 fee schedule declared invalid, fee collection suspended, and fees collected under the 1973 and 1978 schedule refunded.
The Fifth Circuit affirmed the NRC schedule in all respects and refused to order refunds.
Morningside Renewal Council, Inc.
v.
United States Atomic Enercy Commission, 482 F.2d 234 (2d Cir. 1973), cert denied, 417 U.S.
951 (1974)
The Court held that there was substantial evidence in the record to support the findings of the ASLAB in an operating license pro-ceeding and denied a petition for review of an AEC order.
(COLUMBIA UNIVERSITY-TRIGA MARK II)
Nader v. Nuclear Regulatory Commission, 513 F.2d 1045 (D.C. Cir.
1975)
)
The Court affirmed an AEC crder denying a petition seeking the shutdown or derating of twenty nuclear power plants on the i
permise that ECCS effectiveness had not been suitably established.
(20 REACTORS)
Nader v.
Ray, 363 F.
Supp. 946 (D.O.C.
1973)
The Court dismissed an action challenging the validity of the interim acceptance criteria for ECCS and denied a motion for a preliminary injunction restraining the AEC from permitting con-tinued operation of certain reactors.
(20 REACTORS-ECCS CRITERIA) e
l 14 NPDC v. NRC, No. 80-1328, F.2d (D.C. Cir. 1981) [Part 21]
In 1978 the Commission adopted amendments to 10 CFR Part 21 which exempted manufacturers of commercial grade items from the reporting requirements of that Part.
Several months later, the Natural Resources Defense Council asked the Commission to recon-sider the matter, arguina that the amendments violated Section 206 of the Energy Reorganization Act which requires manufacturers to report defects in basic components that could create a substantial safety hazard.
The NRC denied the request and petitioner sought judicial review.
The D.C.
Circuit issued an opinion on October 1, 1981 affirming the Commission's decision.
The court found that the 1978 amendments did not contravene the language of the statute or its legislative history.
Natural Resources Defense Council v. NRC, 647 F.2d 1345 (D.C.
Cir. 1981) [ Philippines]
On slay 6, 1980, a number of environmental groups sued to set aside two Commission orders, the first of which had found that the export of a nuclear reactor and certain components to the Republic of the Philippines met all the applicable licensing criteria in the Atomic Energy Act of 1954, as amended by the Nuclear Non-Proliferation Act of 1978, and directed issuance of export licenses to the Westinghouse Electric Corporation.
In the second order the Commission declared that it would adhere to the policy reflected in its earlier licensing decisions and only con-sider those health, safety, and environmental impacts arising from exports of nuclear reactors that affect the territory of the United States or the global commons.
On March 30, 1981 the D.C.
Circuit, two judges participating, unanimously upheld the Commission's position on somewhat divergent rationales; Judge Wilkey in the main concluding that the Commis-sion was correct in its rulings, while Judge Robinson,- more doubtful, nevertheless deferred to the agency's decision (547 F.2d l
1345).
(PHILIPPINES)
Natural Resources Defense Council, Inc., et al. v. NRC, 580 F.2d 698 (D.C. Cir. 1978) [ Export License Intervention]
N RDC, UCS, and the Sierra Club sought leave to intervene in two export license proceedings involving exports of LEU to India.
On May 6, 1976 the Commission issued an order holding that petitioners lacked standing and were not entitled to a hearing as a matter of right, and that adjudicatory hearings were not required in export licensing proceedings.
The Commission as a matter of discretion ordered a legislative type hearing.
Peti-tieners sought judicial review claiming they were entitled to
15 an adjudicatory hearing as a matter of right.
In 1978 Congress enacted the Nuclear Non-Proliferation Act which provides that the Commission is not required to use adjudicatory procedures in its export license hearings.
The D.C.
Circuit then dismissed the case as moot.
While the case was still pending before the D.C.
Circuit the Commission on June 28,,1977 issued an order authorizing the losuance of one of the challenged export license applications, noting that one application still remained before the cour?.
On June 30, 1977 the court issued an order directing the Commission to suspend the license in order to preserve the court's jurisdic-tion.
On July 6,1977, the court vacated its suspension order and the export license was issued.
(TARAPUR)
Natural Resources Defense Council v. NRC, 582 F.2d 166 (2d Cir.
1978) [ Waste Disposal]
NRDC filed a petition to review the Commission order denying NRDC's request for a rulemaking proceeding to determine whether radioactive wastes generated in nuclear reactors can be safely disposed of.
NRDC also requested that all licensing of reactors be suspended pending completion of the proceeding.
The Second Circuit upheld the Commission's position that it is not obliged to find that high-level wastes can be safely disposed of prior to licensing the operation of nuclear power plants.
Natural Resources Defense Council, Inc., et al. v. NRC, et al.,
606 F.2d 1261 (D.C. Cir. 1979) (ERDA Waste Tanks }
NRDC and other environmental groups sued ERDA (now DOE) and NRC seeking to block construction of the waste tanks at the Hanford and Savannah River facilities.
Petitioners alleged that ERDA had failed to comply with NEPA by not issuing an EIS for the waste tank construction and had violated section 202(4) of the Energy Peorganization Act by failing to obtain licenses from N RC.
NRC was named a defendant because plaintiffs sought a declaratory judgment that NFC has licensina authority in this matter.
The District Court (451 F.
Supp. 1245, D.D.C.
1978) denied the NRC motion to dismiss but upheld NRC's position that it lacks licensing authority over the proposed storage tanks because they were for short term use, and found that DOE erred in not prepar-ing project-specific EIS's for the waste tanks.
The Court of Appeals reversed the District Court's determination that it had subject matter jurisdiction to review the NRC decision, finding that the NRC decision was a licensing determination under Section 189 of the Atomic Energy Act and thus exclusively reviewable in
1 16 the courts of appeals.
The D.C.
Circuit also affirmed the Com-mission's determination that it lacked licensing jurisdiction under section 202(4) and the District Court conclusion on DOE's non-compliance with NEPA.
Natural Resources Defense Council, Inc., et al. v. MRC, et al.,
8 ELR 20153 (D.C. Cir., Jan.
6, 1978) and N RDC v. MRC, No.
77-240-B (D. New Mexico, July 13, 1979) (Uranium MITT Tailings]
Plaintiffs filed suit against the NRC and the New Mexico Environmental Improvement Agency in the United States District Court for New Mexico (No. 77-240-B) seeking to enjoin operation of United Nuclear's Church Rock Mill, which NMEIA licensed, alleging violations of NEPA and the Atomic Energy Act.
Plaintiffs complained that neither NRC nor New Mexico had pre-pared an environmental impact statement for the Church Fock Mill.
Plaintiffs argued that New Mexico, as signatory to a Section 274 State Agreement to regulate radioactive materials, exercised Federal power and, therefore, must compl y with NEPA, and the NRC's continuing review powers over State programs constituted suf ficient Federal involvement to call for preparation of an environmental impact statement.
Plaintiffs also argued that in order to comply with section 274, State programs must be "compat-ible" with the NRC program and that ccmpatibility required prepara-tion of an EIS where NRC would prepare one in a non-Agreement State.
A similar petition was filed in the D.C.
Circuit naming only NRC as a respondent.
(No. 77-1570).
The D.C.
Circuit on January 6, 1978 issued an order which rejected NRDC's theory that New Mexico as an Agreement State is exercising delegated Federal power.
The Court also found that NRDC's allegations that the NRC has been " intimately involved" with the licensing of Church Rock demonstrates, if true, only State-Federal cooperation rather than a final decision-making authority retained by the NRC.
The Court took no view on whether the New Mexico regulatory program is compatible with the Federal regulatory framework.
The. District Court approved a stipulation on July 13, 1979 dismissing the case in light of the Uranium Mill Tailings Radiation Control Act of 1978, which changed the regulatory control scheme over the tail-ings.
Natural Resources Defense Council, Inc. v. NRC, 578 F.2d 1341 (10th Cir. 1978) (Mill Tallings Intervention)
In the underlying dispute, NRDC sought declaratory and injunctive relief to prohibit the NRC from issuing licenses for operating uranium mills in New Mexico without preparing EISs first.
In this action, the American Mining Congress and Kerr-McGee sought review of a District Courtts order denying their motions to intervene O
e
17 either as a matter of right or on a permissive basis, pursuant to Rule 24(a)(2) and (b) of the Federal Rules of Civil Procedure.
Determining both that the interests of the novants was sufficient to satisfy the Rule 24 requirements and that the threat of loss of their interest and inability to participate was of such a magnitude as to impair their ability to advance their interests, the Court reversed the District Court, holding that the parties did have a right to intervene.
Natural Resources Defense Council, In c. v. United States Nuclear Regulatory Commission, 539 F.2d 824 (2d Cir. 1976), vacated and remanded to determine mootness, 434 U.S. 1030 (1978) [GESMO]
The Court held (1) that the Commission's November 11, 1975 order was final and thus reviewable, (2) that the setting of GESMO hearing procedures and schedules was within the Commission's discretion, and (3) that while the Commission may grant licenses for experimental and feasibility purposes in the interim period, it may not act on commercial licenses involving mixed oxide fuel until the final GESMO and its supplement are issued and until the Commission has made its final decision on wide-scale use.
The Court reversed the order insofar as it relates to interim licens-ing and remanded.
The Supreme Court granted certiorari, but subsequently remanded the case to the Second Circuit as the case had become moot when the Commission terminated the GESMO proceed-ing in 1978.
(GESMO)
New England Coalition on Nuclear pollution, et al. v. NRC, et al.,
582 F.2d 87 (1st Cir. 1978)
On August 22, 1978, the Court of Appeals for the First Circuit decided four Seabrook cases brought by the New England Coalition on Nuclear Pollution.
The petitioners challenged an NRC decision authorizing the construction of the Seabrook facility (7 NPC 1) on many grounds, including whether the Seabrook site was so close to a population center as to violate NRC regulations, whether the applicants were financially qualified to build the facility, and the legitimacy of supplementing a final environmental statement through testimony at a hearing.
Also before the court was the
" obvious superiority" test for comparing alternate sites, which provides that an application will be rejected on " alternate site" grounds only if the alternate site is obviously superior to the proposed site.
Another issue considered by the court was the completion cost comparison
(" sunk costs") rule, which provides that alternative sites will be compared on the basis of how much it would cost to complete a facility on each site.
The court con-l sidered use of the " substitution theory" for need for power, which provides that use of nuclear power as a substitute for more costly l
18 fossil fuel is a legitimate factor favoring approval of an applica-tion.
The use of EPA findings as part of the NRC's NEPA analysis and several other NEPA and administrative law questions were also considered by the court.
The First Circuit upheld the Commission's position on every point.
(SEABROOK)
New Hampshire v. Atomic Energy Commission, 406 F.2d 170 (1st Cir.
1969), cert. _ denied, 395 U.S. 962 (1969)
The Court held that the AEC did not err in refusing to consider, as outside of its regulatory jurisdiction, evidence of possible thermal pollution of a river by nuclear power plant cooling water discharge.
(VERMONT YANKEE)
Nielson v.
Seaborg, 348 F.
Supp. 1369 (D. Utah 1972)
The Court held that, if radiation prior to 1966 caused an injury which could reasonably be apprehended only in 1972, then the cause of action against the AEC and the U.S. did not accrue until 1972; thus the 1966 statutory amendment making the presentation of a tort claim to a federal agency a requisite for court action applied and the claim for a radiation injury was not properly before the Court, since it had not been presented to the appropriate federal agency, and that the inability to obtain review did not result in a violation of the due process clause.
(NEVADA TESTS)
North Anna Environmental Coalition v. United States Muclear Regulatory Commission, 533 F.2d 655 (D.C. Cir. 1976)
The Court affirmed an NRC order which found that there was rea-sonable assurance that the fault under the North Anna site was not " capable" within the meaning of the regulations and that the creation of a lake did not threaten to reactivate the fault.
(NORTH ANNA)
Northern Indiana Public Service Company v.
Porter County Chapter of Izaak Walton Leaaue of America, In c., 423 U.S.
12 (1975)
The Surpene Court held thee the Court of Appeals erred in reject-ing the AEC's interpretation of its own regulations--recarding computation of population center distance--and reversed and remanded 515 F.2d 513 (1975) for consideration of other conten-tions.
(BAILLY)
19 Northern States Power Company v. Minnesota, 447 F.2d 1143 (8th Cir. 1971), aff'd, 405 U.S.
1035 (1972)
The Court held that the federal government has exclusive auth-ority under the preemption doctrine to regulate construction and operation of nuclear power plants, regulation of the level of radioactive effluents discharged from them.
(MONTICELLO)
Paskavitch v. NRC, 458 F.
Supp. 216 (D. Conn. 1978)
On October 26, 1978, the Federal District Court dismissed for lack of subject matter jurisdiction a complaint seeking to enjoin operation of the Millstone Nuclear Power Station because plaintiff had failed to exhaust his administrative remedies and final agency action thereon was reviewable exclusively in the courts of appeals. (MILLSTONE)
Pauling v. McElroy, 278 F.2d 252 (D.C. Cir. 1960), cert, denied, 364 U.S. 835 (1960)
The Court held that plaintiffs were without standing to sue and that their complaints presented no justiciable controversy in suits against the Secretary of Defense and the AEC to restrain them from detonating any nuclear weapons, for declaratory judg-ments that nuclear weapons tests are illegal, and for damages for injuries sustained.
(WEAPONS TESTS)
People of the State of Illinois v. NRC, et al., 591 F.2d 12 (7th Cir. 1979)
Illinois petitioned the Court of Appeals to review the denial of its request for 2.206 enforcement action relating to the General l
Electric facility at Morris, Ill.
Petitioner alleged that the Morris facility had been " converted" to long-tern storage for radioactive waste without preparation of an environnental impact statement and without an evidentiary hearing.
The Seventh Circuit l
upheld NRC's denial of the petition holding that NRC was not l
required to hold a formal hearing before it could rule on an enforcement petition.
(GE MORRIS)
Peshlakai v.
Schlesinger, et al., 476 F.
Supp. 1247 (D.D.C.
1979),
dismissed September 9, 1981 This lawsuit was brought December 22, 1978 against a number of l
federal agencies, primarily the Department of the Interior but also, including NRC, claiming that government actions affecting
20 the mining and milling of uranium violated NEPA because national, regional, and individual environmental impact statements had not been prepared on a multitudinous set of actions.
The case is essentially the nuclear analogue of the Klepoe case which dealt with similar claims regarding coal exploration.
Judge Harold H.
Greene saw it as such in a September 5, 1979 opinion which denied plaintiff's motion for a preliminary injunction to halt work a,t Mobil's pilot in situ plant project at Crown Point, New Mexico.
Thereafter, on August 29, 1980, Judge Greene denied plaintiff's motion for partial summary judgment ruling that the regional EIS issue presented disputed material issues of fact and hence was inappropriate for summary disposition.
Subsequently each claim was dismissed until on September 9, 1981, the parties voluntarily dismissed the fifth and sole remaining claim of the complaint challenging the adequacy of the Dalton Pass EIS, thus concluding the lawsuit.
Pitts v. United States, 263 F.2d 353 (9th Cir. 1959), cert. denied, 360 U.S. 935 (1959)
On appeal from a conviction, the Court held that where the defend-ant, who was employed by an employer that had applied for access to information on nuclear reactor technology, willfully made a false statement on an AEC Personnel Security Questionnaire, he was guilty of violating 18 U.S.C. S1001 and affirmed the judgment below.
(LITTON INDUSTRIES)
Porter County Chapter of the Izaak Walton League of America, et al. v. NRC, 606 F.2d 1363 (D.C. Cir. 1979)
These petitions sought review of a Commission decision affirming the denial of a 2.206 enforcement reques; relating to the Bailly Generating Station.
The D.C.
Circuit effirmed the Commission's denial of the petitioners' request for rcmedial relief _under 10 CFR 2.206, supporting a wide-ranging role for the MRC staff in nuclear regulation, the Commission's procedures for responding to 2.206 requests, and the operating license application review as the usual forum for addressing issues that arise during plant construction that relate to whether the completed plant can be operated safely.
(BAILLY)
Porter County Chapter of Izaak Walton Leacue of America, In c. v.
United States Atomic Enercy Commission, 380 F.
Supp. 630 (N.D.
Ind. 1974)
The Court granted an AEC motion for summary judgment in an FOIA action to compel the AEC and the ACRS to produce proprietary safe-guards information and other exempted " agency records" in connec-g
~
1
21 tion with a licensing proceeding.
The Court also held that personal notes are not agency records, and, therefore, not subject to the FOIA.
(BAILLY)
Porter County Chapter of Izaak Walton Leacue of America, Inc. v.
Atomic Energy Commission, 533 F.2d 1011 (7th Cir. 1976), cert denied, 429 U.S. 945 (1976)
The Court held, on remand of 515 F.2d 513 (7th Cir. 1975) from the Supreme Court, that an AEC order granting a permit to construct a nuclear power plant was valid and denied a petition for review.
(BAILLY)
Power Reactor Development Co. v.
International Union of Electrical, Radio and Machine Workers, AFL-CIO, 367 U.S. 396 (1961)
The Supreme Court, in this case arising out of the first con-tested licensing proceeding, held that the AEC was in compliance with the Atomic Energy Act and its regulations issued pursuant thereto in issuing a CP and did not have to make the same definitive finding of safety of operation as required before issuing an OL.
It reversed the D.C. Court of Appeals' judgment (280 F.2d 645) setting aside the Commission's Order.
(FERMI)
Public Service "amoany of New Hampshire v. NRC, et al., 582 F.2d 77 (1st Cir.), ceri.' c.mi ed, 439 U.S. 1046 (1978)
The applicant sought review of that portion of ALAB-422 which provides that NEPA authorizes the Commission to order an applicant to change the routing of its transmission lines to i,
mitigate environmental damage.
The First Circuit affirmed the Appeal Board decision stating that NEPA obliged the Commission to minimize all unnecessary adverse environmental impacts from facilities within the Commission's jurisdiction.
(SEABROOK)
Reynolds v.
United States, 286 F.2d 433 (9th Cir. 1960) i Defendant was convicted of trespassing on AEC arounds under a Commission regulation making that a felony.
The Court held that the regulation, issued pursuant to Section 161(i) of the Atonic Energy Act of 1954, was not authorized by the Act and invalidated the conviction.
(ENIWETOK) l 1
7
22 Rosenberg v. United States of America, 346 U.S. 273 (1953)
The Supreme Court held that the Atomic Energy Act of 1946 did not repeal the power of a federal district court to impose the death penalty which was conferred by the Espionage Act of 1917.
(JULIUS & ETHEL ROSENBERG)
San Luis Obispo Mothers for Peace, et al. v. Hendrie, 502 F.
Supp.
480 (D.D.C. 1980)
Plaintiffs sought the disqualification of Commissioner Hendrie f rom any further participation in the Diablo Canyon operating license proceeding citing allegedly improper ejc parte contacts between the Commissioner and utility company officials and his purported involvement in the review of the Diablo Canyon license application during his tenure as a staff employee of the Atomic Energy Commission.
The Court dismissed the claims on jurisdic-tional grounds holding that Commission licensing decisions were reviewable exclusively in the courts of appeals, and that Com-l missioner Hendrie's refusal to disqualify himself would be l
reviewable at the time the Commission issued its final order in the Diablo Canyon proceeding.
(DIABLO CANYON)
Scientists' Institute for Public In formation, In c. v. Atomic Energy Commission, 481 F.2d 1079 (D.C. Cir. 1973)
The court held that a detailed statement about the LMFBR program, its environmental impact, and alternatives thereto was presently required under NEPA, and reversed and remanded with directions.
(LMPBR PROGRAM) l Seacoast Anti-Pollution League, et al. v. NRC, 598 F.2d 1221 (1st Cir. 1979)
This NEPA case was brought by two environmental groups challenging the adequacy of the consideration of alternative sites in connec-tion with the Seabrook application.
On May 30, 1979, the First Circuit affirmed the NRC decision that the alternative site investigation for the Seabrook facility complied with NEPA.
Sholly v. NRC, 651 F.2d 780 (D.C. Cir. 1980), request for rehear-ing en banc denied, 651 F.2d 792 (D.C. Cir. 1981), cert granted, 69 LTEd. 2d 387 (May 26, 1981)
The D.C.
Circuit declared illegal the Commission's refusal to hold hearings in connection with its approval of venting the Three Mile Island containment of krypton.
The D.C.
Circuit held that
23 even where a license amendment involves no significant hazards consideration any interested person who requests a hearing is entitled by Section 189(a) of the Atomic Energy Act to a hearing before the amendment becomes effective.
The court also held that the TMI-2 accident had essentially negated any authority in the TMI-2 operating license so that any action not authorized by the Commission's February 11 order establishing post-accident condi-tions for TMI-2 is a license amendment subject to Section 189(a) hearing requirements.
(THREE MILE ISLAND)
Siegel v. Atomic Energy Commission, 400 F.2d 778 (D.C. Cir. 1968)
The Court held'that the AEC did not exceed the scope of the authority committed to it by excluding the dangers latent in possible enemy action and sabotage from the inquiry into the merits of the CP application for a nuclear power plant.
The Court endorsed a broad view of the Commission's discretion in its regulation of atomic energy.
(TURKEY POINT)
Sierra Club, et al. v. 11RC, et al., 4 ELR 20685 (D.O.C.,
Sept.
22, 1976)
Plaintif ts alleged that defendants AEC, Eximbank, and the Department of State are engaged in a nuclear power export
" program" and had not filed a generic environmental impact statement on the program.
The AEC decided to prepare an environmental impact statement.
After enactment of the Energy Reorganization Act, ERDA issued the Statement (ERDA-1542).
Following publication of the document the Court dismissed the case as moot on September 22, 1976.
Simmons v. Arkansas Power and Light Compar.r, No. LR-80-C-263 (E.D. Ark), aff'd 655 F.2d 131 (8th Cir. 1 81)
Plaintiffs Simmons, et al. sued Arkansas Power and Light Com sny, e
the NRC, the State of Arkansas, and various State agencies see.k-ing an injunction against operation of Arkansas Nuclear One, Unit 1, alleging that the emergency planning and preparedness program for the facility is inadequate.
A hearing on the motion for preliminary injunction was held.
At the conclusion of plaintiffs' testimony and after argument on the motions to dismiss the law-suit, Circuit Judge Arnold, sitting by designation, ruled from the bench that the constitutional claims were insubstantial, that there was no subject matter jurisdiction over the federal statu-t tory claims for plaintif fs' admitted failure to exhaust remedies under 10 CFR 2.206 and because exclusive judicial review over NFC actions is in the U.S.
Courts of Appeals, and that the court
24 lacked pendant jurisdiction over the state law claims.
The Eighth Circuit affirmed.
As to claims premised on the Atomic Energy Act the court held that the only' avenue for private enforcement of the Act is throagh agency 2.206 proceedings followed by court of appeals review, and not through an original action in district court.
The court also held that operation of the power plant did not amount to a taking of property without just compensation, and that federal displacement of state law in the regulation of nuclear power does not violate the Fifth Amend-ment or Tenth Amendment of the Constitution.
(ARKANSAS POWER AND LIGHT)
State of Minnesota v. NRC, et al., 602 F.2d 412 (D.C. Cir. 1979)
The State of Minnesota sought review of the Appeal Board's decision in ALAB-455 (Northern States Power Company), which authorized expanded spent fuel storage at the applicant's Prairie Island facility.
The New England Coalition also sought review of ALAB-455, claining that the decision illegally failed to give consideration to the environmental impacts of long-term on-site storage of spent fuel in connection with a spent fuel pool expan-sion proceeding.
The D.C.
Circuit remanded the matter to the Commission directing the Commission to initiate proceedings focusing on whether there is reasonable assurance that off-site storage would be availabic for spent fuel at the end of the a
license period.
The Court did not, however, order revocation of the license amendment permitting the expansion of the spent fuel pool.
(PRAIRIE ISLAND and VERMONT YANKEE)
State of New York v. NRC, et al., 550 P.2d 745 (2d Cir. 1977)
New York State sought to stop air shipment of plutonium pending preparation of an environmental impact statement.
Their motion for preliminary injunction was denied in September 1975.
The Second Circuit affirmed the District Court's denial of plain-tiff'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 acciden' and the absence of an agency commitment of resources to a particular' transportation mode.
Susquehanna Valley Alliance v. Three Mile Island, 619 F.2d 231 (3d Cir. 1980), cert. denied sub nom. General Public Utilities Corp. v.
Susquehanna " alley Alliance, 49 U.S.L.W.
3491 (Jan. 12, 1981)
The Susquehanna Valley Alliance alleged that the Commission vio-lated the Atomic Energy Act, NEPA, the Clean Water Act and various provisions of the United States Constitution by approving the
25 construction and operation of EPICOR-II, a demineralizing and filtration system designed to decontaminate intermediate-level radioactive waste water resulting from the TMI accident, and by intending to allow discharge of the treated water into the Sus-quehanna River.
On October 12, 1978, while the Commission was still considering EPICOR-II operation, the district court dis-missed the complaint for lack of subject matter jurisdiction on the ground that SVA failed to exhaust its administrative remedies.
485 F.
Supp. 81 (M.D. Pa.).
The Third Circuit reversed the dis-missal of SVA's claims under NEPA, the Clean Water Act and the Constitution, but af firmed the dismissal of the Atomic Energy Act claim.
The Supreme Court denied certiorari.
Three Justices dissented with opinion.
(THREE MILE ISLAND)
Thermal Ecology Must be Preserved v. Atomic Energy Commission,
433 F.2d 524 (D.C.
Cir. 1970)
Petitioner challenged an interlocutory Licensing Board order pre-cluding it from of fering evidence in the Palisades construction permit hearing relating to thermal pollution created by nuclear reactors and requested the court to stay the agency proceedings pending judicial review of its claim.
The court denied the request stating that an agency's interlocutory procedural or evidentiary rulings do not constitute a final order justifying judicial review except in extreme instances.
Thermal Ecology Must be Preserved v. Atomic Energy Commission.
2 ERC 1405 (7th Cir. 1970)
After losing in the D.C.
Circuit (Thermal Ecology Must be Pre-served v. AEC, 433 F.2d 524), Therma. Ecology filed a virtually identical complaint in the Seventh Circuit asking the court to reverse a Licensing Board interlocutory ruling which refused to permit introduction of certain environmental information.
The court denied the petition for the same reasons set forth by the D.C.
Circuit.
Townshio of Lower Alloways Creek v. MRC, 481 F.
Supp. 443 (D.N.J.
1379)
Plaintiffs sought to enjoin expansion of the spent fuel storace pools at the Salem Nuclear Generating Station.
The Court dis-missed the case for lack of subject matter jurisdiction and because petitioners had failed to exhaust their administrative remedies.
( S AL E'4 )
l i
f 2
26 Train v. Colorado Public Interest Research Grouo, Inc., 426 U.S.
1 (1976)
The Supreme Court held that " pollutants" subject to regulation by EPA under the Federal Water Pollution Control Act do not include source, byproduct, and special nuclear materials which are subject to regulation by the NRC under the Atomic Energy Act and reversed 507 F.2d 743 (10th Cir. 1975).
(FORT ST. VRAIN
& ROCKY FLATS)
Union of Concerned Scientists v. Atomic Energy Commission, 499 F.2d 1069 (D.C.Cir. 1974)
The Court held (1) that an ASLB does not have an affirmative duty to evaluate the correctness of, rather than the sufficiency of support for, uncontested findings, (2) that in granting an OL without first resolving challenges to the interim acceptance criteria for ECCS, the AEC did not deprive petitioner of due process, violate its own regulations or abuse its discretion an' (3) that the AEC did not act unreasonably in its preparation of an FES prior to a license issuance or in its acceptance of the interim acceptance criteria for ECCS.
(PILGRIM)
United States of America and the Trustees of Columbia University in the City of New York v. City of New York,. et al., 463 F.
Supp.
604 (S.D.N.Y.
1978), vacated as moot, No. 79-6023 (2d Cir. May 15, 1979).
On December 27, 1978 the federal district court enjoined enforce-ment of section 105.107(c) of the New York City's Health Code which purports to require a City radiological health and safety review and permit for operation of an NRC-licensed reactor.
The Court held that the Atomic Energy Act preempts local authorities from regulating the health and safety aspects of nuclear reactor operation.
(COLUMBIA UNIVERSITY TRIGA REACTOR)
U.d.
Nuclear Peculatory Commission v.
Radiation Technology, In c.
519 F.
Supp. 1266 (D.N.J.,
1981)
On July 15, 1980, the Commission sued Radiation Technology, In c.
to collect civil penalti s imposed by the MRC under Section 234 of the Atomic Energy Act fc. a series of infractions and deficiencies at defendant's Rockaway, New Jersey facility.
In an opinion issued August 6, 1981, the district court granted summary judgment in favor of NRC and sustained the amount of panalty assessed by the Commission on all but one item of non-compliance.
Based on a detailed review of the legislative
9 27 history of Section 234 of the Atomic Energy Act and an analysis of similar statutory penalty provisions, the court concluded that a licensee was entitled to a trial de novo on the fact of violation.
Thus the findings of prior administrative hearings were not binding on the ccurt and a licensee may litigate anew whether it violated regulatory or statutory requirements.
How-ever, the court held that the administrative record could and in this case did support entry of summary judgment in the agency's favor on most items of noncompliance.
Notwithstanding a licensee's right to a trial de novo on the fact of violation, the court eschewed any authority to independ-ently determine the amount of penalty.
Finding that the imposi-tion of sanctions involved the exercise of agency discretion, the court held that the Commission's assessment would be over-turned only if unwarre.nted in law or without justification in fact.
Finally, the court upheld the constitutionality of " warrantless" NRC inspections; found NRC inspections to be reasonable at any time licensed material is in use, and read a licensee's " walk-around" rights under 10 CFR 19.14(b) as an accommodation to the licensee that in no way conditions the Commission's right to inspect.
Utility Workers of America, Local 1-2, et al. v. Consolidated Edison Company of New York. and NRC, CCH NUC. REG.RPTR. Para. 20,060 (S.D.N.Y.,
Aug.
5, 1977)
Plaintiffs challenged NRC's regulations requiring a pat-down search of licensee employees, arguing that the regulations violated the Fourth and Fourteenth Amendments of the Constitu-tion.
On August 5, 1977, the District Court denied the plaintiffs request.
Plaintiffs appealed the decision to the Second Circuit (No. 77-6131).
Plaintiffs thereafter voluntarily dismissed thair complaint and appeal when NRC delayed the effec-tive date of its pat-down search requirements.
Subsequently, the Commission modified its regulations to eliminate most pat-down searches.
Vermont Yankee Nuclear Power Corp. v. Natural Pesources Defense Council, In c., et al; Consumers Power Company v. Nelson Aeschliman, 435 U.S. 519 (1978)
In the Vermont Yankee licensing proceeding the Commission granted an operating license without receiving evidence on the environ-mental effects of waste disposal or fuel reprocessing.
Subse-quently, after rulemaking proceedings which included notice and public hearings, but which did not utilize full adjudicatory
28 proceedings, the Commission adopted a spent fuel cycle rule --
Table S-3 -- and concluded that since the environmental effects of the uranium fuel cycle had been shown to be relatively insig-nificant, it was unnecessary to apply the rule to Ticensee's reports submitted in operating license proceedings prior to the rule's effective date or to final environmental impact statements which had been circulated for comment prior to the effective date.
NRDC and other intervenors sought judicial review of the rule.
The Court of Appeals (547 F.2d 633, D.C.
Cir. 1976) overturned the rule and remanded the license determination for further proceedings, holding that in the absence of an adequate rulemaking proceeding, the Commission must deal with the environmental impact of fuel processing and waste disposal in individual licensing proceedings.
The Court gave ambiguous guidance on what kind of procedures the Commission should follow in developing a new S-3 Table.
In the second case, the Commission granted Consumers Power Company a construction permit following adjudicatory hearings, an ACRS review, and issuance of an environmental impact statement.
Thereafter, CEO issued regulations requiring consideration of energy conservation as an alternative to the project in the EIS.
The Commission rejected a request by intervenors to reopen the proceeding to consider energy conservation alternatives after intervenors had failed to clearly delineate what they wished the NRC to examine.
On appeal. of this decision, the Court of Appeals (547 F.2d 622, D.C.
Cir. 1976) remanded the Commission's decision holding that the EIS was (.efective because it did not consider energy conservation measures as an alternative to construction of the reactors, and that the ACRS report'was inadequate because it was not understand-able to the layman.
The Supreme Court reversed and remanded the two court of appeals' decisions.
The Court held that absent extremely compelling circum-stances, administrative agencies should be free to fashion their own rules of procedure and that the APA did not require the Commis-sion to go beyond notice and comment procedures in in formal rulemakings.
The Court also found that the Connission had not erred by failing to consider energy conservation issues and that there was no legal requirement that the ACRS reports to the Commission be understandable to the layman.
(VERMONT YAMKEE, MIDLAND)
Virginia Electric & Powe" Co. v. NRC, 571 F.2d 1289 (4th Cir.
1978)
VEPCO and the North Anna Environmental Coalition challenged a Commission order which imposed a $32,000 fine on the utility for false statements concerning geologic faulting at the site.
1
9 29 The Fourth Circuit affirmed the Commission's order finding that material omissions may constitute a false statement.
(NORTH ANNA)
Virginia sunshine Alliance v. NRC, et al.,
477 F.
Supp. 68 (D.
D.C.,
1979)
Plaintiff sued to block the shipment of spent fuel from foreign research reactors through Portsmouth, Virginia, based on a claimed threat of sabotage, and alleging that the route approval was given contrary to NEPA and NRC regulations.
The District Court denied plaintiff's request to preliminarily enjoin spent fuel shipments through Norfolk, Virginia, finding that the Commission's new safe-guards rule provided adequate protection against sabotage threats and that the Commission had taken a "hard look" at the sabotage issue in compliance with NEPA.
An appeal from the denial of the injunction was voluntarily dismissed on October 14, 1980, and the district court case too was dropped on October 18, 1980.
Westinghouse Electric Corp. v. Hendrie, No. 79-2060 (D.D.C. August 30, 1979), CCH NUC. REG.RPTR. Pa ra. 20,125, Westinghouse Electric Corp. v. Vance, No. 79-2110 (D.D.C. August 30, 1979)
The Westinghouse Corporation sued the NRC and the Department of State, alleging unreasonable delay in the processing of its appli-cations to export a reactor and components to the Philippines.
Judge June Green denied the Westinghouse motion for injunction finding that the NRC delay was not unreasonable given the important health and safety considerations raised by the application.
Westinghouse appealed to the D.C. Circuit, but then withdrew its appeal.
(PHILIPPINES)
Westinghouse Electric Corp. v. NRC, 555 F.2d 82 ( 3rd Cir.1977) i westinghouse petitioned for review of a Commission amendment to its rules of practice on treatment of trade secrets or confi-dential commercial or financial in formation (10 CFR 2.790) on grounds that the amendment jeopardizes its ability to protect such information from disclosure to its competitors.
The Third Circuit ruled that NRC had statutory authority to disclose pro-prietary information and dismissed the challenge.
(10 CFP 2.790).
Westinghouse Electric Corporation v. NRC, 598 F.2d 759 (3rd Cir.
1979)
This case involved a challenge to the Commission's order terminat-ing GESMO and related plutonium recycle proceedings.
Petitioners argued that completion of an EIS was necessary to terminate the
30 proceedings, that the Commission showed too great a deference to the President's foreign policy judgments, and that the Commis-sion is obliged to pass upon all license applications applying the criteria set forth in the Atomic Energy Act.
The Third Circuit affirmed the Commission's decision in all respects. (GESMO)
York Committee for a Safe Environment v. United States Nuclear Regulatory Commission, 527 F.2d 812 (D.C. Cir. 1975)
The United States Court of Appeals, rejecting numerous other objections raised by the petitioners to the grant of an operating license for the Peach Bottom Atomic Power Station, Unit 2, remanded the case to the Commission for an individualized analysis of the costs and benefits of reducing routine radiciodine releases in accordance with the Commission's "as low as reasonably acnievable" regulations.
The Court rejected the petitioners' contentions that the licensee's emergency plans did not comply with the Commission's regulations and that the Commission had violated the National Environmental Policy Act by giving inadequate consideration to the transportation of spent fuel and to the cumulative ef fects of the operation of existing and planned reactors in the vicinity of Peach Bottom.
(PEACH BOTTOM)
\\
d
31 B..
Unreported Cases Atlantic County, et al. v. NRC, et al., No. 77-2077 (D.N.J.
Aug.
9, 1978)
Four coastal New Jersey counties sued the NRC and the utilities which serve southern and central New Jersey with nuclear power, challenging the constitutionality of the Price-Anderson Act.
Since the constitutional issue was then pending before the Supreme Court (Duke Power Company v. Carolina Study Group), the parties stipulated that the district court action should be stayed pending the Supreme Court decision.
On June 26, A978, the Supreme Court upheld the constitutionality of the limitation on liability, and on August 9, 1978, plaintiffs voluntarily dismissed the case.
Babcock and Wilcox Company v. NRC, et al., No. 77-1457 (D.C. Cir.,
Sept. 16, 1977)
Babcock and Wilcox Company sought review of NRC's May 9, 1977 denial of its request for injunctive relief against United Tech-nology Corporation's proposed takeover of B&W.
The Company also asked the Court to order the NRC to conduct a license transfer hearing under Section 184 of the Atomic Energy Act.
The Court denied the motion for summary judgment and injunctive relief, and on September 16, 1977 dismissed the case as moot in light of the withdrawl of United Technology's tender offer.
Basdekas v. NRC, et al., No.78-465 (D.D.C. December 21, 1978)
On March 17, 1978, an NRC employee sued to compel disclosure of documents relating to a 1976 OIA investigation under the FOIA and Privacy Act.
The NRC asserted that portions of the documents were exempt from disclosure under exemptions 5 and 6.
On December 26, 1978, Judge Green ordered the release of one o f the OGC memoranda, but upheld the NRC's claims of exemption for the two remaining documents, including the statements of witnesses provided under a pledge of confidentiality.
The remaining issues in the case were then settled.
Christa Maria v. NRC, No. 81-1920 (D.C. Cir. September 11, 1981)
On August 14, 1981 petitioner sought review of the Appeal Board's l
March 31, 1981 decision that an environmental impact stateme.nt was not required to consider the impacts of continued operazion of the Big Rock Point facility in connection with an application l
l l
32 to expand the facility's spent fuel pool.
NRC moved to dismiss on the grounds that the Appeal Board's decision was not a final order; if construed as a final order, dismissal was sought for failure to meet the 60-day filing time specified by 28 U.S.C.
2344.
After our motion to dismiss was filed, petitioner on September 11, 1981, stipulated to voluntarily dismiss its peti-tion for review on non-final order grounds.
(BIG ROCK POINT)
Cincinnati Gas and Electric Company, et al. v. NRC, et al., No.
76-2376 (D.D.C.,
March 15, 1977)
A number of utilities sought a reduction in NRC licchse fees, asserting that under the Independent Offices Appropriation Act of 1952 only some five percent of NRC's costs can be passed on as license fees.
Plaintiffs requested an injunction against further collection of fees, refunds of fees previously collected and a court order imposing the lower fee schedule they proposed.
On March 15, 1977, the court heard oral argument and dismissed plaintiffs' complaint from the bench, finding that only the Court of Appeals can pass upon the validity of NRC's fee schedule.
Citizens Action for Safe Energy, In c. v. NRC, No. 77-1136 (10th Cir. June 21, 1977)
Petitioner sought review of an Appeal Board Order dismissing as interlocutory its claim that the Licensing Board had denied it discovery on certain is~ sues and had erroneously refused to compel the joinder, as parties to the proceeding, of the Bureau of Indian Affairs of the Department of the Interior and the Cherokee Indian Nation.
The Tenth Circuit in a short memorandum opinion, adopted the NRC position and dismissed the petition for review as inter-locutory.
(BLACK FOX)
Citizens Against Nucl' ear Power, In c. and James Runyon v. United States Nuclear Reculatory Commission, No. 81-1016 (7th Cir.
March 4, 1981)
On January 8, 1981, Citizens Against Nuclear Power, Inc. and James Runyon filed in the 7th Circuit a petition for review of ALAB-601, an Appeal Board decision which denied petitioner's request to intervene in the Commonwealth Edison Company (Carroll County Site) early site review proceeding on the ground that none of their fif teen contentions were litigable at that stage of the proceeding.
By letter of November 5, 1980, petitioners were informed that the Appeal Board decision had become final agency action on November 4, 1980 when the Commission declined to review ALAB-601.
I
33 The lawsuit was dismissed for failure to file the petition for review within 60 days, as required by 28 U.S.C.
2344.
City of Cleveland, Ohio v. NRC, No. 75-2115 (D.C. Cir. Aug.
6, 1976)
Petitioner sought review of a Commission decision which held that the appointment of a Special Master, made with the parties' agree-ment, to decide certain discovery matters did not violate an AEC Manual prohibition against delegation of the Licensing Board's authority.
The NRC argued that the court lacked jurisdiction to review the decision sinca it did not constitute a final order in the proceeding.
On August 6, the Court issued its order dismis-sing the petition for review.
(PERRY)
City of Gary, et al. v. NRC, No. 81-1429 (D.C. Cir., September 16, 1981)
The Commission declined to review ALAB-619.
In that decision, the Appeal Board ruled that issues of emergency planning and site suitability were not properly within the scope of the proceeding underway to consider the licensee's request for a construction permit amendment extending the date by which construction must be completed.
The Appeal Board held that under the circumstances of this case, the appropriate forum for the petitioners is a 2.206 petition.
Since the only contentions raised by the City of Gary in the extension proceeding were those relating to emergency planning and site suitability, the effect of ALAB-619 was to exclude petitioners altogether from the extension proceeding.
On April 16, 1981, the City of Gary filed a petition for review o f ALAB-619 in the U. S.
Court of Appeals for the D.C.
Circuit.
Gary sought a court order remanding the case to the Commission with instructions to allow litigation of the excluded issues in the extension proceeding.
The lawsuit was voluntarily dismissed on September 16, 1981 after the utility cancelled the Bailly plant.
(BAILLY)
City of Lancaster v. NRC, No. 79-1368 (D.D.C.,
Feb. 28, 1980)
This lawsuit was brought May 21, 1979, seeking to enjoin use of the EPICOR-II demineralizer system and to enjoin discharge of accident generated water from Three Mile Island Unit 2 into the Susquehanna River pending completion of an environmental impact statement and license amendment proceedings.
The case was settled and dismissed with prejudice on February 28, 1980, the Commission.having re-iterated its ir".ent to prepare a programmatic environmental impact statement and aaving agreed that no accident
=
34 generated wastewater will be discharged into the Susquehanna River until 6?mpletion of that statement or such other environ-mental review as is contemplated by the Commission's November 21, 1979 policy statement, or until December 31, 1981, whichever is ear?ier.
City of Louisville, et al. v. NRC, No. C-77-0053-L(B)
The City of Louisville and other governmental units sought to overturn an ex parte Appeal Board order (ALAB-371) which instructed the Licensing Board that the absence of co-owners from the Marble Hill application did not necessitate postponement of the hearings on matters independent of the ownership issue.
On March 7,
- 1977, the court adopted the NRC position, denied the motions, and dis-missed the complaint.
(MARBLE HILL)
Comey v. Atomic Energy Commission, No. 72 C 1744-(N.D. Ill.,
Feb. 5, 1973)
In an FOIA actiots for production of ACRS minutes, the Court ordered the AEC to provide excised copies to plaintiff and both excised and unexcised copies to the Court.
(COOK, ZION, KEWAUNEE)
County of Ocean, et al. v. NRC, et al., No. 79-1800 (D.N.J.
December 20, 1979)
Plaintiffs sought to enjoin expansion of the spent fuel storage pools at the Oyster Creek and Forked River facilities.
The Court dismissed the action for lack of subject matter jurisdic-tion, failure to exhaust remedies and, in the case of Forked River, the absence of a case or controversy.
(OYSTER CREEK, FORKED RIVER)
Duke Power Co. v. NRC, No. 80-2253 (D.C. Cir., September 29, 1981)
On October 10, 1980, Duke Power Co. filed a lawsuit challenging the Commission's final rule on radiological emergency plannino.
Duke claimed that the Commission's 15-minute notification require-ment was invalid.
The case was argued Septem-ber 15, 1981.
At oral argument, petitioner's counsel significantly narrowed the issue to whether the formulation of the rule and the impler.enting criteria were consistent.
Based on URC's explanation of use of the criteria to interpret the rule, there appeared to be no disagreement.
On September 29, the court dismissed the case on that ba sis.
l l
35 i
Environmental Coalition on Nuclear Power, et al. v. NRC, et al.,
No. 75-1421 (3rd Cir. Nov. 12, 1975)
Petitioners sought review of an order authorizing the issuance of construction permits for Limerick Generating Station, Units 1 and 2.
Petitioners claimed that the Commission's review concerning cooling water for the facility was not in accordance with NEPA.
The Commission argued that its environmental review was complete and that Limerick was economically and environ-mentally sound when operated on the basis of natural river flow.
The Court denied the petition for review.
(LIMERICK)
Environmentalists, In c. v. NRC, No. 75-2377 (4th Cir. June 15, 1976)
Petitioner sought to overturn a Commission decision refusing to enjoin hearings for the Barnwell reprocessing facility pending a Commission decision on plutonium recycle.
The Court of Appeals dismissed the petition for review on June 15, 1976 in light of the Second Circuit's decision in NRDC v. NRC, 539 F.2d 824.
(BARNWELL)
Fendler v. NRC, No. 79-239-PHX (D. Ariz., Aug.
6, 1979)
Plaintiff sued the NRC to compel preparation of a new environmental impact statement for the Palo Verde plant.
The court dismissed the case because plaintiff had not exhausted his administrative remedies.
(PALO VERDE)
Font v.
United States of America, et al., Civil Action No.
81-0019-S (M.D. Ala. June 19, 1981)
On February 5, 1981, Gilbert Larry Fcat sued the United States and the NRC for injuries allegedly received as a result of a December 10, 1969 accident when two 40-foot trailers he had purchased from Long Island Nuclear Services Corp. spilled T; clear waste on him.
We argued that in view of the Section 274 agree-ment with New York State, LINSCO was a New York State licensee and the Commission was not responsible for allegedly negligent actions of state licensees.
To the extent the lawsuit seeks damages for the federal government allegedly misinforming Mr.
Font about the consequences of the accident, the Commission urged that the lawsuit be dismissed without prejudice to enable Mr.
l Font to file a more detailed administrative claim.
On June 19, 1981, plaintiff voluntarily dismissed his complaint.
f
36 Gadler v. NRC, No. 76-1001 (D.C. Cir., March 4, 1976)
Petitioner appealed a Commission order denying him intervention in the Prairie Island operating license proceeding.
Because the petition for review was filed more than 60 days after issuance of the final agency order, the Court dismissed the petition as untimely.
(PRAIRIE ISLAND)
Gentry v. United States, No. CA 79-L-5181-NE (N.D. Ala., December 29, 1980)
This is a Federal Tort Claims Act lawsuit brought on September 14, 1979 by a former employee of Thiokol Corporation seeking money damages for exposure to radiation while working as a radiographer on government projects.
On March 5, 1980 the court dismissed all defendants except the United States.
A motion for summary judg-ment based on statute of limitations grounds was granted Decem-ber 29, 1980.
Gilbert, et al v. NRC, No. H-78-2192 (S.D. Tex., Jan. 23, 1979)
Plaintiffs challenged various aspects of the NRC procedures to be followed in processing the Allens Creek application for a construc-tion permit.
The District Court dismissed the case, finding, in effect, that plaintiffs had not exhausted their administrative remedies and that no final order had been entered in the case.
(ALLENS CREEK)
Golden v.
Public Service Company of Indiana, No. 76-49-C (S.D.
Ind., July 6, 1976)
Plaintiff sought to bar the Commission from granting the applicant's request for an exemption permitting early site-related. activities at the proposed Marble Hill Nuclear Generating Station.
After the complaint was filed, the exemption request was denied, rendering the case noot.
On July 6, 1976, the court granted plaintiff's motion to dismiss the complaint.
(MARBLE HILL)
Hudson River Fisherman 's Assoc., Inc., et al.
v.
NRC, No. 75-4212 (2d Cir., Dec. 10, 1975)
Petitioners challenged an Appeal Board order interpretina -- and approving as interpreted -- a stipulation relating to the installa-tion of closed-cycle cooling for Indian Point, Unit 3.
The Commis-i sion issued an Order on December 2, 1975 which approved the l
stipulation and vacated portions of the Appeal Board's decision.
1
37 The Commission's decision mooted out the litigation and the case was dismissed on December 10, 1975.
(INDIAN POINT)
Jaffer v. NRC, No. 81-8035 (D.C. Cir. October 2, 1981)
On August 19, 1981, petitioner sought leave to proceed in forma pauperis to enjoin a Licensing Board opinion authorizing the issuance of two license amendments for the Turkey Point nuclear power plant steam generator repairs.
The Commission opposed the motion on the ground that his lawsuit had no chance to succeed because petitioner is not a party to the proceeding for which review was sought.
On October 2, the Court denied the notion o
based on a finding that petitioner had no standing to sue.
Lewis, et al. v. Hendrie, et al., No. EC-77-237-K (N.D. Miss.
March 15, 1978)
The Court held that the Commission must give 30 days Federal Register notice of the time and place of the commencement of a construction permit hearing.
(YELLOU CREEK)
Life of the Land v. Adams, No. 79-0249 (D. Hawaii, December 19, 1979)
Plaintiffs challenge the transport of two shipments of spent fuel from Japan through Hawaiian waters and the port of Honolulu, seek-ing preparation of an environmental impact statement and compliance with the Ports and Waterways Safety Act.
The application for injunction on the first of these shipments was denied on June 7, 1979, and upheld by the Ninth Circuit on June 8, 1979.
The Governor closed the port to both shipments.
One was permitted to refuel at Pearl Harbor on an emergency basis; the other refueled s
in non-Hawaiian waters.
Because no more shipments were scheduled, the Justice Department filed a motion to dismiss on grounds the case was noot.
On December 19, 1979, a voluntary dismissal was approved by the court.
Martin-Trigona v.
Department of Justice, et al.,
No. 78-4006 (S.D.
Ill., April 30, 1978)
On January 30, 1978, plaintiff sued the Justice Department, Commonwealth Edison, and the NRC concerning the withholding under the FOIA of documents pertaining to the Quad Cities power station.
NRC asserted Exemption 7 as grounds for withholding the documents.
The court granted the notion to dismiss.
(OUAD CITIES)
38 Martin-Trigona v. NRC, No. 77C-4454 (N.D. Ill., June 19, 1978)
Plaintiff sued the NRC alleging that the NRC must prepare an environmental impact statement on the transportation of radio-active materials through metropolitan areas, specifically O' Hare Airport.
NRC moved to dismiss, relying in part on the compliance with NEPA through publication of the " Environmental Impact State-ment on the Transportation of Radioactive Materials by Air and other Modes".
Plaintiff failed to respond to the motion and the court dismissed the complaint on June 19, 1978.
Martin-Trigona v. NRC, et al., No. 78-C-690 (N.D. Ill., July 7, 1978)
Plaintiff sought to enjoin the University of Illinois from incin-erating radioactive wastes and to order the NRC to regulate more closely the University's waste disposal.
On July 7, 1978 the court granted defendant's unopposed motions for summary judgment.
Martin-Trigona v.
State of Illinois, e t a l., No. 78C-917 (N.D.
Ill., April 10, 1978)
Plaintiff sought a declaratory judgment that the waste disposal site at Sheffield, Illinois, was a nuisance under Illinois law.
No particular relief was sought against the NRC.
On April 10, 1978, the complaint was dismissed for plaintiff's failure to pursue it.
(SHEFFIELD)
Municipal Electric Utility Association of Alabama v.
NRC, No.
81-0105 (D.D.C. July 21, 1981)
On January 15, 1981, the Municipal Electric Utility Association of Alabama sued the Commission in Federal district court seeking to compel the Appeal Board to decide the Parley antitrust case.
On June 30, 1981, the Appeal Board decided Parley, ALAB-646, and this lawsuit was dismissed on July 21.
( F ARL EY )
l Natural Resources Defpnse Council, In c., et al. v. NRC, No.
76-1966 (D.C. Cir., Jan. 31, 1977)
[ CLINCH RIVER]
Petitioners sought review of the Commission's August 1976 Clinch River opinion, claiming that the limitations imposed on tha environmental analysis of the proposed Clinch River Breeder Reactor violate NEPA.
NRC's motion to dismiss the action on the ground that l
the Commission order was not a final order reviewable by the court was upheld and the petition was dismissed on January 31, 1977.
(CLINCH RIVER)
\\
l l
39 Natural Resources Defense Council, Inc. v. NRC, No. 76-9592 (D.D.C.,
April 14, 1977)
[GESMO FOIA]
In an FOIA suit, plaintiffs sued to compel disclosure of more than 80 documents relating to the Commission's November 14, 1975 Federal Register Notice establishing procedures for the GESMO proceeding.
The documents were withheld under exemption five.
The court affirmed the NRC on most of the documents, but ordered the release of minor portions of some documents.
[GESMO FOIA}
New Hampshire State Building and Construction Trades Council (AFL-CIO), et al. v. NRC, et al.,
No. 78-1321 (D.D.C.,
July 21, 1978)
Plaintiffs sued the NRC to overturn the Commission decision to suspend construction at the Seabrook site p?nding a decicion by the EPA administrator on the environmental suitability of the Seabrook cooling system.
NRC opposed the motions for stay arguing that the district court did not have jurisdiction to review the Commission's final order, since review of Commission orders is reserved exclusively to the court of appeals.
The Court agreed and dismissed the complaint on July 21, 1978.
(SEABROOK)
Niagra Mohawk Power Corp. and Thomas J.
Perkins v. NRC, No.
5'l-4009 (2d Cir. March 31, 1981)
On January 23 Hiagra Mohawk and Mr. Perkins petitioned the Second Circuit to review the November 26, 1980 order of the Director, Office of Inspection and Enforcement, insofar as it directed that, effective immediately, Mr. Perkins not be involved with nuclear matters for Niagra Mohawk.
A settlement was there-a fter reached and on March 31, 1981 the lawsuit was dismissed upon stipulation of the parties.
(NIAGAPA MOHAWK)
.~
5 81 1026 The Nuclear Reculatory Commission v. NRC, et al., No.
(D.C.'Cir. April 1, 1981)
On January 9, 1981 an affiliate of the group that brought the
]
various Honicker cases which now calls itself "The Nuclear Regulatory Commission" appealed to the D.C. Circuit the Office of Nuclear Reactor Regulation Director's denial of its 2.206 reques,t which sought revocation of the Sequoyah full power operating license on the ground that adequate measures had not been taken l
to deal with hydrogen generation in the event of a TMI-2 type accident.
On April 1, 1981 petitioners voluntarily dismissed the lawsuit.
(SEQUOYAH) i
~
4 3
\\
1 40 Pennsylvania Power & Light Company v. Gulf Oil Co., No.75-453 (Ct. of Common Pleas, Lehigh County, Pa., March 19, 1979)
Gulf Oil Company subpoened NRC records in an effort to defend a breach of contract suit over uranium for the Susquehanna station brought by the plaintiff.
NRC treated the request as if filed under the FOIA and made some documents available to the public.
l Gulf then voluntarily withdraw its subpoena and discovery requests since all documents sought had been placed in the PDR.
(SUSQUE-H ANNA)
Pecple of the State of Illinois v. General Electric, No. 79-C-1427 (N.D.
Ill.), No. 80-1962, affirmed (7th Cir. March 5, 1981)
On April 11, 1979, the State of Illinois sued General Electric, the Commission, and the Department of Energy over the G.E.
Morris spent fuel storage facility.
Illinois claimed that its Radioactive Waste Act violates the Illinois Constitution, is preempted by the Atomic Energy Act, and hence voids its perpetual care contract with GE, and that the Department of Energy violated NEPA in not preparing an EIS to accompany proposed legislation on the use of G.E.
Morris as an away from reactor storage site.
On December 18, 1979, Judge Will dismissed all but the EIS claim involving the Department of Energy; that letter claim was dis-missed as moot on May 8, 1980 based on DOE's expressed intention to prepare a site-specific EIS before acquisition of Morris or any other facility once can'gressional authorization was obtained.
On June 27, 1980 Illinois appealed.
On March 5, 1981, the Seventh Circuit affirmed the district court decision.
On appeal Illinois had only pressed a NEPA claim against DOE.
Illinois claimed that DOE had reached some unarticulated decision to acquire G.E.
Morris, which would unduly influence DOE's prepar-ation and evaluation of any EIS it prepares prior to actually acquiring the site.
In a brief order the Seventh Circuit noted that that kind of conjecture was an improper basis for employme,:
o f the judicial process.
Illinois would have full opportunity to cha1.lenge DOE's EIS after it had been prepared and to challenge l
DO8's subsequent acquisition decision as well, when those eventa occur.
(CE MORRIS)
Pecole of the State of Illinois v. NPC, No. 80-1163 (D.C. Cir.,
i July 1, 1981)
On February 7, 1980, the State of Illinois filed a lawsuit challenging the Commission's determination that the plan of the Morthern~ Indiana Public Service Company for installing foundation piles for the Bailly naclear facility was not a desian change
i 41 requiring a construction permit amendment and a hearing as of right, and was not of such safety significance as to warrant a discretionary hearing.
The Commission's decision noted that pilings issues had appropriately been left for later resolution, and that the Advisory Committee on Reactor Safeguards had advised that the use of shorter pilings was not a significant design change from the standpoint of engineering.
On July 1, 1981 the D.C.
Circuit ruled that the Commission was in error when it held that the proposed shorter pilings plan did not require a construction permit amendment.
It did so on the narrowest of grounds, finding most telling the reaction of the NRC's staff when confronted with NIPSCO's proposed change -- immediate suspension of all construc-tion activity on the Bailly plant, and extensive study of the short pilings issue.
(BAILLY)
Potomac Alliance v. NRC, No. 80-2122 (D.C. Cir. November 24, 1981) on September 18, 1980 the Potomac Alliance filed this lawsuit seeking to enjoin the repair of the Surry Nuclear Power Station Unit 1 steam generators pending a more complete environmental impact statement.
On October 3, 1980, the D.C.
Circuit denied petitioner's request for an injunction.
Repairs on the steam generators were begun on October 5, and the lawsuit was thereafter voluntarily dismissed.
(SURRY)
Power Authority of the State of New York v. State of New York, 77 Civ. 596 (WCC)
(S.D.N.Y. January 15, 1979)
PASNY challenged an order of the M.Y.
State Board on Electric Generation Siting and the Environment requiring PASNY to submit to the Board information concerning the health and safety impact of a proposed nuclear generating plant.
Because PASNY would not i
suf fer substantial delay if required to participate in further l
hearings where the Board was found to be without jurisdiction to consider or use radiological evidence, ?nd because there was no prospect of an enormous waste o' government resources (since requested testimony would have to be presented to and evaluated by the NRC regardless of whether the Board had jurisdiction),
the Court found that the "plaintif f has failed to bring itself within the very limited exception to the policy that review of agency jurisdiction must await exhaustion of aaency proceedings j
when the agency determination on the merits will also be subject to judicial review."
(GREEN COUNTY)
Radiation Technology v. MRC, No.79-753 (D.M.J. February 25, 1980)
Plaintiff sought money damages under the Federal Tort Claims Act for costs flowing from the suspension of his materials license.
42 j
The Federal District Court held that counts 1 and 2 of the com-plaint were~ time-barred under the Tort Claims Act; the remain-ing claim was settled.
Sand Point Harbor, Inc. v. NRC, No. 75-2110 (D.N.J. March 18, 1976)
Local property owners requested the court to enjoin operation of the Oyster Creek reactor and construction of the Forked River reactor, alleging that these activities damaged their property, primarily through shipworm infestation.
NRC moved to dismiss the complaint for failure to exhaust administrative remedies.
Plain-tiffs thereafter decided to seek intervention in the Oyster Creek operating license proceeding and on March 18, 1976 voluntarily withdraw their complaint.
(OYSTER CREEK AND FORKED RIVER)
Save Needed Environmental Levels Leacue v. Southern California Edison Company, No. 75-1543 (C.D. Cal., Sept. 17, 1976)
The plaintiffs allege that the NRC and 33 other organizations have violated NEPA, as well as various antitrust and security laws, in regard to the proposed Palo Verde Nuclear Facility.
On September 17, 1976, the district court dismissed the complaint for improper venue.
(PALO VERDE)
Southern California Edison v. NRC, No. 79-7529 (9th Cir., May 14, 1980)
On October 15, 1979, Southern California Edison petitioned t3r Ninth Circuit to review the Appeal Board's June 15, 1979 decistaa, ALAB-550, which denied the company's motion to quash a subpoena the Licensing Board had issued in connection with antitrust proceedings on the Stanislaus nuclear power plant.
The case was settled administrative 1y and the lawsuit was voluntarily dis-missed on May 14, 1980.
(STANISLAUS)
Three Mile Island Alert, In c. v. NPC, No. 81-1557 (D.C. Cir.,
August 19, 1981)
On May 22, 1981 Three Mile Island Alert, Inc. filed a petition for review challenging the Commission's March 23 decision to renove the financial qualification issue from the TMI Unit I restart proceeding.
We filed a motion to dismiss the case on the ground that the Commission's decision was interlocutory and should not be subject to judicial review until the Commission issues its final decision on the restart of Unit 1.
The D.C.
Circuit agreed and on August 19, 1981 dismissed the case.
(THREE MILE ISLAND)
43 Three Mile Island Litigation, No. 79-0432 (M.D. Pa. September 9, 1981)
This is a consolidated complaint seeking money damages for personal injuries, property losses, and business losses alleged to have resulted from the Three Mile Island accident.
On July 10, 1980, Judge Rambo ruled that the federal district court properly had jurisdiction over the TMI litigation, despite the fact that the Commission had determined that the accident did not constitute an " extraordinary nuclear occurrence," because the lawsuit in any event arises under federal law; second, that the lawsuit could properly proceed as a class action as to the
" economic harm" classes; and third, that insofar as personal injury claims were involved, class action treatment was proper only as to the alleged need for medical monitoring services.
Judge Rambo specifically decided that claims of emotional dis-tress flowing from the TMI accident were too diverse and personal to be adjudicated by the vehicle of a class action.
The Commis-sion participated as a friend of the court in this lawsuit.
On September 9, 1981, Judge Rambo approved settlement of the class action aspects of the Three Mile Island damage lawsuit for $25 million.
The settlement provides that $20 million of i
that amount shall be allocated to those businesses and indivi-duals residing within 25 miles of TMI who suffered economic harm as a result of the accident.
The remaining $5 million is to be used as a public health fund to monitor and study possible health related effects resulting from the Three Mile Island accident.
TVA v. NRC, No. 177-35 (E.D. Tenn., Sept. 14, 1977)
TVA sought a declaratory judgment that the NRC lacked the statu-tory authority to order TVA to cease and desist from removing structures from the Phipps Bend site without prior NRC approval.
The complaint was filed after most, if not all, of the. structures i
had been removed.
TVA claimed that the NRC was precluded from exercising NEPA authority over TVA's acquisition and property management activities, an issue which was then pending before an Appeal Board.
On September 14, 1977, the District Court granted NRC's motion to dismiss the con: plaint as inappropriate for declaratory judgment.
(PHIPPS BEND)
Union of Concerned Scientists v. NRC, No. 80-1962 (D.C. Cir.
February 19, 1981) l On August 14, 1980, the Union of Concerned Scientists and five other organizations sought review in the D.C.
Circuit of the Com-l mission's Statement of Policy entitled "Further Commission l
Guidance for Power Reactor Operating License", 45 Fed. Reg. 41738
44 (June 20, 1980).
Petitioners contended that the policy statement unlawfully discriminates between parties to NRC adjudications by permitting applicants for operating licenses to challenge in each adjudication the necessity for the additional licensing require-ments contained in NUREG-0694, while prohibiting intervenors from challenging their sufficiency.
The case was dismissed as moot by stipulation of the parties on February 19, 1981, after the Commis-sion issued a revised policy statement.
Union of Concerned Scientists, et al. v. NRC, et al., No. 76-0370 (D.D.C.,
March 14, 1977)
Plaintiffs sued under the Freedom of Information Act to compel disclosure of documents written by Stephen Hanauer.
The Commis-sion had denied the documents under Exemption Five.
The court upheld the ;ommission's exemption claims for most of the docu-ments, but ordered ninor portions of ten documents to be dis-closed.
United States v. Henry, Misc. No. 80-0319-H (S.D. Al a., June 23, 1980)
The United States, on behalf of the NRC, brought a subpoena enforcement action against a former employee at the Marble Hill nuclear power plant as part of the Commission's investigation into the procedures followed in testing concrete used to con-struct the power plant.
The case was withdrawn on June 23, 1980 when the employee agreed to respond to the subpoena.
(MARBLE HILL)
United States v. McGovern, No. 80-0560 (M.D. Pa.), appeal dis-missed, No. 80-2182 (3d Cir., Oct.
8, 1980)
On June 2, 1980, the United States on behalf of NRC brought a subpoena enforcement action ag' inst five Metropolitan Edison employees as part of the Commission's ongoing investigation of the transfer of information from Met-Ed to the NRC on the first day of the Three Mile Island accident.
Following two evidentiary hearings Judge Ramco granted the Commission's motion to enforcet he subpoeaas on August 13, 1980.
An appeal to the Third Circuit was dismissed on October 8, 1980 after the Third Circuit and Mr.
Justice Brennan refused to stay enforcement of the subpoenas.
(THREE MILE ISLAND)
w i
45 l
United States v. City of New York, No. 76 Civ. 273 (S.D.N.Y.,
)
Jan. 30, 1976)
On January 15, 1976, the NRC, DOE, and DOT sought a judgment declaring a New York City Health Code provision dealing with the transportation of nuclear materials through the city to be inconsistent with the federal statutory scheme governing the transportation of hazardous materials.
The government's request for a preliminary injunction against enforcement of the Health Code provision was denied on January 30, 1976 in view of the absence of DOT reculations under the Hazardous Materials Trans-portation Act prohibiting such local ordinances.
On April 4, 1978, DOT ruled that the New York City ordinance was not incon-sistent with DOT's then existing statutory scheme and regulatory policy but that a rulemaking would be held to consider what restrictions should be placed on local regulation of the routing of nuclear materials.
Upper Skagit Indian Tribe, Suak-Suiattle Indian Tribe and Swinomish Tribal Community v. MRC, No. 79-2277 (D.C. Cir., January 19, 1981)
On October 26, 1979, three American Indian tribes petitioned the p.C. Circuit to review an appeal board decision denying their 3-1/2 year late petition to intervene in the Skagit construction permit proceeding.
The lawsuit was voluntarily dismissed on January 19, 1981, when the utility withdrew its application to construct the power plant at the Skagit site.
(SKAJIT)
Holiver v. NRC, No. 80-2627 (D.D.C. March 23, 1981)
On October 15, 1980 this Freedom of Information Act lawsuit was filed seeking a copy of a 1969 Sargent & Lundy Engineers' report to the Cincinnati Gas & Electric Company, " An Economic ~ Evaluation o f Alternatives".
The Commission had denied the request for the report under Exemption 4 as proprietary, but re-evaluated the request and released the report, deciding that the passaqe of time had eliminated any likely competitive injury.
The lawsuit was dismissed as moot in' March, 1981.
1 i
e i
i
W I
e 46 t
Young, William D.,
et al. v. NRC, No. 77-1181 (D.C. Cir., July 14, 1977)
Petitioners sought review of the Licensing Board orders of Decem-ber 15 and 21, 1976 which authorized issuance of a Limited Work Authorization for TVA's Hartsville facility, claiming that the Commission erred in authorizing licensing based on proposed revi-sions to Table S-3, and that, in any event, the Licensing Board should not have summarily disposed of their contention that those S-3 values tilted the NEPA cost / benefit balance against an LWA.
Petitioners subsequently moved to voluntarily dismiss their peti-tion for review as moot in view of a later Licensing Board decision authorizing issuance of a construction permit for the Hartsville facility.
The court dismissed the suit on July 14, 1977.
(HARTSVILLE) 4 1
l