POLICY ISSUE 

(INFORMATION) 

February 28, 2008 SECY-08-0026

FOR: The Commission 

FROM: John F. Cordes, Jr. /RA/

 Solicitor 

SUBJECT: ANNUAL REPORT ON COURT LITIGATION (CALENDAR YEAR 2007) 

PURPOSE: To Inform the Commission of the Status of Litigation in the Courts 

DISCUSSION: 

Attached is a report updating events in NRC court litigation since my last cumulative annual 

report dated February 16, 2007 (SECY-06-0035). This report reflects the status of NRC cases 

in court as of February 28, 2008. 

During the reporting period (calendar year 2007), the Commission was sued eleven (11) times 

in the courts of appeals,1

 but not in any other court. During this same one-year period eight (8) 

cases were closed.4 The 11 new court cases in 2007 are roughly in line with what we have 

come to expect over the past decade. There were 8 new cases in 2006, 11 in 2005, 13 in 2004, 

14 in 2003, 8 in 2002, 5 in 2001, 9 in 2000, 15 in 1999, and 12 in 1998, for an average of 

roughly 10.5 new cases per year. 

 

 1 Eastern Navajo Dine Against Uranium Mining v. NRC, No. 07-9505 (10th Cir.); 

Massachusetts v. United States, Nos. 07-1482 & 07-1483 (1st Cir.) ; New Jersey v. NRC, Nos. 

07-1559 & 07-1756 (3d Cir); New Jersey Dept. of Environmental Protection v. NRC, No. 07-

2271 (3d Cir.); Nuclear Information and Resource Service v. NRC, No. 07-1212 (D.C. Cir.); 

Public Citizen v. NRC, Nos. 07-71868 & 07-72555 (9th Cir.); Spano v. NRC, Nos. 07-0324 & 07-

1276 (2d Cir.). 

 4

 CBS (formerly Viacom Inc.) v. United States, No. 1:05-cv-00468 ESH (D.D.C.); 

Environmental Law and Policy Center v. NRC, No. 06-1442 (7th Cir.); Ernst v. Rombaugh, No. 

06-CV-167-J (D. Wyoming); Nuclear Information and Resource Service v. NRC, No. 07-1212 

(D.C. Cir.);Nuclear Information and Resource Service v. NRC, No. 04-71432 (9th Cir.); Public 

Citizen v. NRC, No. 03-1181 (D.C. Cir.); Salsman v. Federline, No. 5:06-cv-07173-JW (N.D. 

Cal.); San Luis Obispo Mothers for Peace v. NRC, No. 03-74628 (9th Cir.). 
- 2 -

During this reporting period (CY 2006), we also handled five requests (so-called "Touhy" 

requests) for NRC testimony, depositions or other evidence for use in private litigation, as well a 

number of resource-intensive discovery demands in lawsuits against the United States not 

involving the NRC, chiefly in a series of cases brought in the U.S. Court of Federal Claims 

seeking money damages against the government for not bringing on-line a spent fuel disposal 

facility by 1998, as directed in the Nuclear Waste Policy Act. 

Attachment: Litigation Status Report 
- 1 -

LITIGATION STATUS REPORT

(As of Feb. 28, 2007) 

ACTIVE CASES6

BASF Catalysts LLC (formerly Engelhard Corp.) v. United States, No. 1:05-cv-11241-JLT 

(D. Mass.) 

This lawsuit seeks money damages from the United States (the NRC and other federal 

agencies are also named defendants). The suit arises out of the clean-up of a former nuclear 

fuels facility in Plainville, Massachusetts. BASF argues that the United States (i.e., the AEC) 

exercised sufficient “control” over the nuclear manufacturing operation that the United States 

may be held liable as an “operator” under CERCLA. BASF also has invoked RCRA, “federal 

common law,” and the Declaratory Judgment Act. 

The government and BASF are engaged in settlement negotiations. The Justice Department is 

taking the lead on this lawsuit, with support from NRC lawyers. 

CONTACT: Susan G. Fonner 

 415-1629 

Curtiss-Wright Electro-Mechanical Corp. v. United States, No. 2:05-cv-0813-NBE (W.D. 

Pa.).

In this case, a subsidiary of Westinghouse is suing the government under CERCLA in an 

attempt to recover clean-up and decommissioning costs at the Cheswick site in Pennsylvania. 

Westinghouse contends that the U.S. is liable for some of the costs because (1) the AEC 

contracted with the site for fuel for the Navy and some of the contamination results from those 

contracts, and (2) the AEC allegedly allowed the owners to bury wastes at the site. 

The parties are discussing settlement. NRC has participated in discovery. NRC lawyers are 

working with Justice Department lawyers in this case. 

CONTACT: Charles E. Mullins 

 415-1618 

Eastern Navajo Dine Against Uranium Mining v. NRC, No. 07-9505 (10th Cir.) 

Petitioners in this case challenge a series of Commission adjudicatory rulings culminating in the 

approval of an in situ uranium mining license for Hydro Resources, Inc. Hydro Resources 

sought the license to mine uranium in Crownpoint and Church Rock, New Mexico. Petitioners 

 

 6 For statistical purposes, we count as “active” any case pending before a court, or still 

subject to further judicial review, as of January 1, 2007. The narratives accompanying each 

listed case include post-January 1 developments, however. 
- 2 -

argue that granting the license was unreasonable and unlawful under the AEA and NEPA. 

Petitioners focus on dose calculation and financial assurance issues. 

All briefs were filed during the summer and fall of 2007. The court has not yet set a date for oral 

argument. 

CONTACT: Charles E. Mullins 

 415-1618 

Kandel v. United States, No. 1:06-cv- 872 (Court of Federal Claims) 

This is a class action suit brought against the United States by federal retirees seeking 

additional retirement benefits on account of alleged mishandling of annual leave at the time of 

retirement. The complaint, originally captioned Solow v. United States, but now renamed, 

includes the NRC and other federal agencies. The government is seeking dismissal on statute 

of limitations grounds. 

CONTACT: Marvin L. Itzkowitz 

 415-1550 

Massachusetts v. United States, Nos. 07-1482 & 07-1483 (1st Cir.) 

In these consolidated lawsuits the Commonwealth of Massachusetts challenges adjudicatory 

decisions in the Vermont Yankee and Pilgrim license renewal proceedings. In each of these 

cases Massachusetts submitted a NEPA contention claiming that NRC had not adequately 

examined the consequences of fires in spent fuel pools. The Licensing Board and the 

Commission rejected the contention as, in effect, a collateral attack on NRC’s generic 

environmental regulations. Massachusetts followed up its contention with a petition for 

rulemaking to change the regulations. 

In the court of appeals, Massachusetts demands a guaranty that NRC will act on the rulemaking 

petition before deciding the license renewal applications. We have argued that Massachusetts’s 

claim is inappropriate and premature in that there is no indication that NRC won’t handle the 

rulemaking and license renewal proceedings appropriately. 

The case has been orally argued and is awaiting decision. 

CONTACT: Steven C. Hamrick 

 415-4106 

Missouri v. Westinghouse Electric, L.LC., No. 4:05-cv-00315 SNL (E.D. Mo.) 

The State of Missouri sued Westinghouse under state and federal law (CERCLA) to clean up 

the contaminated Hematite site (the location of a former nuclear fuels manufacturing facility). 

Missouri and Westinghouse lodged a proposed consent decree that ostensibly would give 

Missouri regulatory jurisdiction over nuclear materials. 
- 3 -

On behalf of the NRC and the Department of Energy, the United States filed a motion to 

intervene to protect federal responsibilities against state encroachment and to protect federal 

financial interests. NRC lawyers are collaborating with Justice Department lawyers on the case. 

In early 2007, the district court (Limbaugh, J) agreed with our argument that portions of the 

proposed consent decree preempted by the NRC’s exclusive authority over nuclear materials 

under the Atomic Energy Act. 

The parties are now discussing a new consent decree. 

CONTACT: Charles E. Mullins 

 415-1618 

New Jersey v. NRC, Nos. 06-5140, 07-1559, 07-1756 (3d Cir.) 

The State of New Jersey brought this series of lawsuits to challenge revisions in an NRC 

guidance document on decommissioning, NUREG-1757, that purportedly authorizes a new form 

of decommissioning - - a so-called “long-term control” license. New Jersey is concerned that 

NUREG-1757 will be invoked to justify an inadequate (in New Jersey’s view) clean-up of the 

contaminated Shieldalloy industrial site in southern New Jersey. 

All parties have filed briefs, and the case is set for oral argument in April. Our position is that 

New Jersey’s lawsuits are premature and improper, given that New Jersey is free to raise its 

concerns about NUREG-1757 in an ongoing NRC administrative adjudication over the 

Shieldalloy decommissioning. 

CONTACT: Charles E. Mullins 

 415-1618 

New Jersey Dept. of Environmental Protection v. NRC, No. 07-2271 (3d Cir.) 

This lawsuits attacks an NRC adjudicatory decision in the Oyster Creek license renewal 

proceeding. The Licensing Board and the Commission rejected New Jersey’s sole contention – 

that NEPA required a study of the consequences of a terrorist attack. New Jersey, relying on 

the Ninth Circuit’s decision in San Luis Obispo Mothers for Peace v. NRC, 449 F.3d 1016 (9th

Cir. 2006), cert denied, 127 S.Ct. 1124 (2007), is asking the court of appeals to reinstate its 

“NEPA-terrorism” contention. NRC has filed a brief maintaining that NEPA-proximate cause 

principles preclude such terrorism claims. 

The case is not yet set for oral argument. 

CONTACT: Charles E. Mullins 

 415-1618

Nuclear Information and Resource Service v. NRC, Nos. 06-1301 & 06-1310 (D.C. Cir.)

These consolidated lawsuits challenged a series of adjudicatory decisions culminating in 

granting a license to LES for a uranium enrichment facility in New Mexico. Petitioners raised an 
- 4 -

array of safety and environmental issues. On December 11, 2007, the court of appeals 

(Kavanaugh, Rogers, JJ., Ginsburg, CJ) found that petitioner-public interest groups had 

standing to challenge the LES license, but the court ruled for NRC on all substantive issues. 

Among other things, the court ruled that NRC had properly prepared an EIS before the agency 

hearing, that NRC’s analysis of the impacts and costs of depleted uranium disposal was 

reasonable, and that the late Commissioner McGaffigan did not abuse his discretion in declining 

to disqualify himself from the adjudication due to certain non-adjudicatory remarks. 

Petitioners did not seek rehearing or rehearing en banc. The deadline for a certiorari petition in 

the Supreme Court is March 10. 

CONTACT: Darani M. Reddick 

 415-3841

Ohngo Gaudadeh Devia v. NRC, Nos. 05-1419, 05-1420, 06-1087 (D.C. Cir.) 

These consolidated lawsuits challenge a series of Commission adjudicatory decisions resulting 

in an authorization to the NRC staff to license the proposed Private Fuel Storage ISFSI in Utah. 

OGD’s brief argued that the NRC did not properly handle an “environmental justice” claim and 

that the NRC license should be vacated as moot (because other federal agencies have taken 

action making PFS’s use of the NRC license problematic). Utah’s brief argued that the NRC did 

not properly consider the probability and consequences of an air crash into the PFS facility, that 

the NRC did not take adequate account of the Department of Energy’s changing plans for 

shipping spent fuel to the proposed Yucca Mountain facility, and that the NRC wrongly failed to 

examine, under NEPA, the consequences of a terrorist attack. 

We filed an answering brief arguing that NRC had reasonably resolved all safety and 

environmental issues. But no merits decision will issue for quite some time, if ever. The court 

of appeals (Garland, Tatel, Rogers, JJ) removed the case form the oral argument calendar and 

issued a decision finding the NRC case “prudentially” unripe. The court reasoned that the NRC 

license was currently unusable due to Department of the Interior rulings prohibiting use of the 

proposed site. The court thus held the lawsuits against NRC in abeyance, pending PFS’s effort 

to overturn the Department of the Interior’s adverse rulings. The court directed the parties to file 

periodic status reports. 

The first two status reports have been filed. They indicate that PFS has challenged the Interior 

Department’s rulings in a federal district court lawsuit (D. Utah), but that the lawsuit is in its early 

stages. 

CONTACT: Grace H. Kim 

 415-1607 

Public Citizen v. NRC, Nos. 07-71868 & 07-72555 (9th Cir.) 

This lawsuit, filed by citizens groups, challenges the NRC’s new Design Basis Threat Rule. 

Under 28 U.S.C. § 2112, a similar suit, filed by the State of New York in the Second Circuit 

(New York v. NRC, No. 07- (2d Cir.), was transferred to the Ninth Circuit and consolidated 
- 5 -

with this one. Petitioners argue, in essence, that NRC’s new rule doesn’t take adequate 

account of the threat of air attack and gives too much weight to licensees’ cost-based defense 

capabilities. We have filed a brief indicating that the new rule is fully in accord with AEA 

requirements to provide adequate protection and to provide for the common defense and 

security. 

The case has not yet been set for oral argument. 

CONTACT: Steven Crockett 

 415-2871 

Spano v. NRC, Nos. 07-0324 & 07-1276 (2d Cir.) 

This lawsuit, filed by the County Executive for Westchester County, New York, and by the 

County itself, challenges an NRC decision rejecting petitions for rulemaking seeking changes in 

the license renewal rule (10 C.F.R. Part 54). The rulemaking petitions asked the NRC to 

expand the scope of issues considered at the license renewal stage to focus on questions in 

addition to aging. Under 28 U.S.C. § 2112 (which governs multiple lawsuits attacking the same 

agency decision), this lawsuit was consolidated with a similar suit originally filed in the Third 

Circuit, New Jersey Environmental Foundation v. NRC, No. 07-1304 (3d Cir.). 

The case is fully briefed. NRC’s position is that it carefully considered the scope of license 

renewal in its initial rulemaking and no changed circumstances call for altering its approach. 

The court of appeals has not yet set an oral argument date. 

CONTACT: Grace H. Kim 

 415-3605 

United States v. Science Applications International Corp., No. 04-CV-1543 (RWR) (D.D.C.) 

The government sued SAIC for damages and other relief arising out of SAIC’s contract to 

provide unbiased advice to the NRC. The NRC hired SAIC to support the agency’s rulemaking 

effort to develop standards applicable to the release of radioactive materials into the 

environment. Department of Justice lawyers are taking the lead in this case, with support from 

NRC lawyers. The case currently is awaiting trial. 

CONTACT: Marvin L. Itzkowitz 

 415-1550 

Westinghouse Electric Co. v. United States, No. 4:03-CV-00861 (DDN) (E. D. Mo.) 

This is a lawsuit for government contribution under CERCLA for cleanup of the Hematite site in 

Missouri. We are working with the Justice Department in defending the suit. The United States 

successfully intervened in a companion suit, Missouri v. Westinghouse Electric Co., involving 

the State of Missouri’s effort to halt the State of Missouri’s effort to “settle” with Westinghouse in 

a way that would compromise the federal government’s interests. The government has filed a 
- 6 -

counterclaim and crossclaims against various parties seeking contribution should the 

government be held financially liable under CERCLA. 

CONTACT: Charles E. Mullins 

 415-1618 

CLOSED CASES 

CBS (formerly Viacom Inc.) v. United States, No. 1:05-cv-00468 ESH (D.D.C.) 

This lawsuit sought reimbursement of response costs under CERCLA. The case arises out of 

the clean-up of a former Westinghouse facility in Bloomfield, New Jersey. Plaintiff says that 

much of the remediation of the facility was done under the supervision of the NRC and that the 

NRC (AEC) was satisfied with the work as of 1973, when it terminated the Viacom license. The 

case has now been “administratively terminated,” in anticipation of a settlement agreement 

being reached. 

CONTACT: John F. Cordes 

 415-1956 

Environmental Law and Policy Center v. NRC, No. 06-1442 (7th Cir.) 

Petitioners brought this lawsuit to challenge some of the NRC’s environmental findings in the 

Clinton early site permit proceeding. Petitioners maintained that the NRC ought to have 

considered energy conservation as an alternative to a new nuclear power plant at the Clinton 

site. Petitioners also argued that the NRC had not adequately considered the possibility of 

“combination” wind-solar power. The Licensing Board and (on administrative appeal) the 

Commission rejected petitioners’ claims.

On December 6, 2006, the court of appeals (Flaum, Evans & Williams, JJ) rejected the NRC’s 

threshold jurisdictional argument that petitioners’ lawsuit was premature, given that they had 

been permitted to intervene in the NRC proceeding and the early site permit had not yet been 

granted (or denied). The court agreed with petitioners that the NRC’s adjudicatory decision was 

“final as to them,” as it had the effect of terminating their participation in the early site permit 

proceeding. 

But on the merits the court upheld the NRC adjudicatory decisions in their entirety. The court 

ruled, as we had argued, that: (1) energy conservation need not be considered as an alternative 

to a nuclear power plant at the early site permit stage, in particular where the license applicant 

intends to sell power on the wholesale market, and (2) ample consideration had been given to 

alternative power sources, such as wind-solar combination, thereby justifying the Licensing 

Board’s grant of summary disposition on that claim. 

CONTACT: John F. Cordes 

 415-1956 
- 7 -

Ernst v. Rombaugh, No. 06-CV-167-J (D. Wyoming) 

This was a pro se money damages lawsuit against individuals and organizations, including the 

NRC. According to the complaint the NRC negligently awarded a contract to a person whose 

consulting company is (allegedly) operating illegally. We worked with the United States 

Attorney’s office on the case and filed a successful motion to dismiss. In early 2007 the district 

court (Johnson, J.) issued a short, unpublished order finding that the court lacked jurisdiction 

because plaintiff had not properly served NRC. 

CONTACT: Darani M. Reddick 

 415-3841 

Nuclear Information and Resource Service v. NRC, No. 07-1212 (D.C. Cir.) 

This lawsuit challenged NRC’s denial of a 2.206 petition claiming that the Palisades ISFSI was 

vulnerable to earthquakes. The court of appeals (Henderson, Tatel & Kavanaugh, JJ) granted 

our motion to dismiss the petition for review. The court agreed with our position that NRC’s 

2.206 decision reflected an unreviewable exercise of enforcement discretion. The court also 

agreed with our position that NRC had not “abdicated its responsibilities” here. Petitioners did 

not seek further review on rehearing or at the Supreme Court. 

CONTACT: John F. Cordes 

 415-1956 

Nuclear Information and Resource Service v. NRC, No. 04-71432 (9th Cir.) 

Petitioners in this case sought review of NRC amendments to its transportation safety rules (10 

C.F.R. Part 71). The amendments brought NRC rules into conformity with international 

standards. Petitioners argued that the NRC failed to do an adequate NEPA analysis in 

connection with the rule amendments. 

On July 22, 2006, the court of appeals (Rymer, Wardlaw & Selna, JJ) ruled for the NRC. The 

court did not reach the merits of petitioners’ NEPA claim because the court agreed with our 

argument that petitioners lacked standing to bring the case. The court held that the new NRC 

rule was more protective than the old one, that petitioners’ affidavits and other submissions did 

not show how their members would suffer individualized harm from the new rule, and that a 

Department of Transportation rule replicated the NRC rule, rendering effective relief against the 

NRC problematic. In a companion decision the court affirmed a district court ruling dismissing 

petitioners’ lawsuit against DOT for lack of jurisdiction. 

Petitioners unsuccessfully sought rehearing en banc in the NRC case. 

CONTACT: Grace H. Kim 

 415-1607 
- 8 -

Public Citizen v. NRC, No. 03-1181 (D.C. Cir.) 

This lawsuit argued that the Commission unlawfully imposed new “design basis threat” 

requirements through orders it issued in 2003 without prior notice and public comment. 

Petitioners claim that the Commission may not alter agency rules without invoking the 

rulemaking process. After briefing and oral argument, the court of appeals held this case in 

abeyance pending the NRC’s “design basis threat” (DBT) rulemaking. By court order, we 

periodically report to the court on the progress of the DBT rulemaking. After the Commission 

approved the new DBT rule, the parties agreed upon a motion to dismiss the lawsuit as moot, 

which the court of appeals granted. 

CONTACT: John F. Cordes 

 415-1956 

Salsman v. Federline, No. 5:06-cv-07173-JW (N.D. Cal.) 

The plaintiff in this federal district court lawsuit challenged an NRC refusal to consider his 2.206 

petition on the risks of “weaponized” depleted uranium. Working with the United States 

Attorney’s office in San Francisco, we filed a motion to dismiss the suit for lack of jurisdiction. 

Among other things, we argued that plaintiff filed suit in the wrong court, given that courts of 

appeals have exclusive jurisdiction over NRC licensing decisions, including decisions (like 2.206 

denials) preliminary or ancillary to licensing. 

On April 25, 2007, the district court (Ware, J) issued a decision agreeing with our “wrong court” 

argument and dismissed the lawsuit. 

CONTACT: John F. Cordes 

 415-1956 

San Luis Obispo Mothers for Peace v. NRC, No. 03-74628 (9th Cir.) 

This lawsuit challenged two Commission adjudicatory decisions in a proceeding to license an 

ISFSI at Diablo Canyon. The first decision declined to suspend ISFSI licensing proceedings to 

await NRC security enhancements, and the second rejected NEPA-based contentions 

demanding an inquiry into the potential effects of a terrorist attack. 

In 2006 the court of appeals (Thomas, Reinhardt & Restani, JJ) held that it was unreasonable 

for the NRC to refuse to consider the environmental effects of a terrorist attack on a 

“categorical” basis. The court remanded the case for further NEPA proceedings on the terrorist 

issue. The court did uphold the NRC decision not to suspend its licensing proceeding and 

agreed with the NRC that a licensing proceeding was not an apporpriate forum to revisit the 

validity of NRC security regulations. 

The ISFSI applicant, Pacific Gas & Electric Company, sought certiorari in the Supreme Court 

(No. 06-434). The government, while agreeing with PG&E that the Ninth Circuit decision on the 

NEPA-terrorism issue was incorrect, did not support Supreme Court review at this time. On 

January 12, 2007, the Court denied certiorari. 
- 9 -

Petitioners then asked the court of appeals to award them approximately $167,000 in attorney’s 

fees under the Equal Access to Justice Act. We ultimately settled the fee claim for a smaller 

amount. 

CONTACT: Charles E. Mullins 

 415-1618