ADJUDICATORY ISSUE 

INFORMATION

February 4, 2009 SECY-09-0020

FOR: The Commission 

FROM: John F. Cordes, Jr. 

 Solicitor 

SUBJECT: ANNUAL REPORT ON COURT LITIGATION (CALENDAR YEAR 2008) 

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

DISCUSSION: 

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

report dated February 28, 2008 (SECY-08-0026). This report reflects the status of NRC cases 

in court as of January 30, 2009. 

During the reporting period (calendar year 2008), the Commission was sued nine (9) times in 

the courts of appeals1

 and four (4) times in federal district courts.2 During this same one-year 

period thirteen (13) cases were closed.3

 The 13 new court cases in 2008 are roughly in line with 

what we have come to expect over the past decade. There were 11 new cases in 2007, 8 in 

2006, 11 in 2005, 13 in 2004, 14 in 2003, 8 in 2002, 5 in 2001, 9 in 2000, and 15 in 1999, for an 

average of roughly 10.5 new cases per year. 

 

 1 Brodsky v. NRC, No. 08-1454 ag (2d Cir.); Crane v. NRC, No. 08-72973 (9th Cir.); Dey v. 

NRC, No. 08-3299 (Fed. Cir.); Epstein v. United States, No. 08-3963 (3d Cir.); New York v. 

NRC, Nos. 08-3903-ag, 08-4833-ag, 08-5571-ag (consolidated) (2d Cir.); Salsman v. NRC, No. 

08-74043 (9th Cir.); San Luis Obispo Mothers for Peace v. NRC, 08-75058 (9th Cir.) 

 2 Dey v. Klein, No. 08-cv-02400 (D. Md.); McCracken v. Brookhaven Science Associates, 

LLC, No. 08-cv-2642 (E.D.N.Y.); McCracken v. Brookhaven Science Associates, LLC, No. 08-

cv-2934 (E.D. Pa.); Miles v. Klein, No. 08-cv-01822 (RMC) (D.D.C..) 

 

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

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

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

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

Science Associates, LLC, No. 08-cv-2934 (E.D. Pa.); New Jersey v. NRC, Nos. 06-5140, 07-

1559, 07-1756 (3d Cir.); Nuclear Information and Resource Service v. NRC, Nos. 06-1301 & 06-

1310 (D.C. Cir.); Spano v. NRC, Nos. 07-0324 & 07-1276 (2d Cir.) 
During this reporting period (CY 2008), we also handled fourteen (14) requests (so-called 

"Touhy" requests) for NRC testimony, depositions or other evidence for use in private litigation, 

as well a number of discovery demands in lawsuits against the United States not involving the 

NRC. These discovery demands came chiefly in 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. 

Enclosure: Litigation Status Report 
- 1 -

LITIGATION STATUS REPORT

(As of Feb. 4, 2009) 

ACTIVE CASES1

Brodsky v. NRC, No. 08-1454 ag (2d Cir.) 

Petitioners in this case, a New York assemblyman and citizen groups, challenge an exemption 

from fire protection requirements that the NRC Staff granted to Indian Point. Petitioners argue 

that the exemption should have triggered an NRC hearing and was in any event unreasonable 

and unlawful. NRC’s brief is due in March. 

CONTACT: Robert M. Rader 

 415-1955 

Crane v. NRC, No. 08-72973 (9th Cir.) 

Petitioner in this case, formerly a lawyer at NRC, is challenging the agency’s denial of his 

rulemaking petition. The rulemaking petition asked NRC to roll back a 1997 rule allowing 

doctors to release radiation-treated patients from the hospital if the potential dose to other 

persons did not exceed 500 millirem. Petitioner sought a more protective rule. After reviewing 

the petition and the comments it triggered, NRC refused to alter the 1997 rule. 

The case is fully briefed and is awaiting argument and decision. 

CONTACT: Robert M. Rader 

 415-1955 

Dey v. NRC, No. 08-3299 (Fed. Cir.) 

This petition for review challenged a Merit Systems Protection Board (MSPB) decision 

sustaining an NRC decision to remove an employee from his position. On January 9, 2009, the 

court of appeals (Newman, Schall & Gajarsa, JJ) upheld the MSPB decision as supported by 

substantial evidence. The court decision is not reported. 

CONTACT: John Farrington 

 415-2196 

 

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

subject to further judicial review, as of January 1, 2009. The narratives accompanying each 

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

Dey v. Klein, No. 08-cv-02400 (D. Md.) 

This is an employment discrimination suit. NRC lawyers are collaborating with the United 

States Attorney’s office. They expect to file a motion to dismiss the complaint. 

CONTACT: John Farrington 

 415-2196 

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 

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 in 2007, and the case was orally argued in May, 2008. The case is awaiting 

decision. 

CONTACT: Charles E. Mullins 

 415-1618 

Epstein v. United States, No. 08-3963 (3d Cir.) 

In this case, petitioner seeks to overturn an NRC denial of a rulemaking petition. The 

rulemaking petition asked NRC to expand its license renewal reviews to include emergency 

planning. We filed the record, but petitioner failed to file a brief on its due date. The court of 

appeals dismissed the suit for non-prosecution. Petitioner has until February 12 to seek 

rehearing and try to reinstate his suit. 

CONTACT: Grace H. Kim 

 415-1607 

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: Mark Maxin 

 415-1554 
- 3 -

McCracken v. Brookhaven Science Associates, LLC, No. 08-cv-2642 (E.D.N.Y.) 

Plaintiff seeks millions of dollars in damages from the government, including the NRC, and from 

private and national laboratories for alleged radiation injuries. The United States Attorney’s 

office in Brooklyn (NY) is representing the government and has sought dismissal on 

jurisdictional grounds. Plaintiff filed, but then voluntarily dismissed, a similar suit in 

Pennsylvania (McCracken v. Brookhaven Science Associates, LLC, No. 08-cv-2934 (E.D. Pa.)). 

CONTACT: Maxwell C. Smith 

 415-1246 

Miles v. Klein, No. 08-cv-01822 (RMC) (D.D.C..) 

This is an employment discrimination suit where we are collaborating with the United States 

Attorney’s office on the defense. The government plans to file an answer to the complaint in 

February. 

CONTACT: Sara McAndrew 

 415-1562 

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), seeks to reinstate its “NEPA-terrorism” 

contention. NRC has filed a brief maintaining that NEPA-proximate cause principles preclude 

such terrorism claims. NRC’s brief also argues that the Generic Environmental Impact 

Statement for license renewal already analyzes the consequences of a terrorist attack 

adequately by comparing them to accident consequences. 

The court heard oral argument in December, and the case is awaiting decision. 

CONTACT: Charles E. Mullins 

 415-1618 
- 4 -

New York v. NRC, Nos. 08-3903-ag, 08-4833-ag, 08-5571-ag (consolidated) (2d Cir.) 

These consolidated lawsuits challenge an NRC denial of rulemaking petitions seeking changes 

in NRC’s generic environmental findings for license renewal. The three states who have 

brought suit – New York, Connecticut and Massachusetts – believe that NRC has not taken 

sufficient account of “new and significant” information on the risk of fires in spent fuel pools, 

including terrorist-caused fires. 

The case has been slow to get off the ground because the states are disputing the proper venue 

for the suit. Massachusetts argues that the case should be heard in the First Circuit, because it 

is an outgrowth of a prior case there, Massachusetts v. NRC, 522 F.3d 115 (1st Cir. 2008), 

whereas New York and Connecticut argue for keeping the case in the Second Circuit, because 

the first petition for review (New York’s) was filed there. The court has not yet resolved the 

matter. 

The case likely will be briefed this spring. 

CONTACT: James E. Adler 

 415-1656 

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. 

Several 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 has not yet 

reached final decision. 

CONTACT: Grace H. Kim 

 415-1607 
- 5 -

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 was 

transferred to the Ninth Circuit and consolidated 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 was orally argued in November, but has not yet been decided. 

CONTACT: Steven Crockett 

 415-2871 

Salsman v. NRC, No. 08-74043 (9th Cir.)

Petitioner, an individual citizen with great interest in the hazards of uranium, filed an 

unsuccessful rulemaking petition with NRC arguing that uranium’s hazards (non-radiological) 

are worse than NRC has thought and warrants changes in 10 C.F.R. Part 20. He has 

challenged the rulemaking denial in court. 

The case is fully briefed and is awaiting oral argument and decision. Our brief maintains that 

Mr. Salsman is suffering no personal harm from the current Part 20, and therefore lacks 

standing to sue. We also argue that NRC’s denial of the rulemaking petition was reasonable 

given current scientific knowledge and the information petitioner presented. 

CONTACT: Maxwell C. Smith 

 415-1246 

San Luis Obispo Mothers for Peace v. NRC, 08-75058 (9th Cir.)

Petitioner in this lawsuit, a citizens group, challenges the Commission’s decision, after a 

hearing, to uphold the NRC Staff’s environmental assessment of the consequences of a terrorist 

attack on the proposed ISFSI at Diablo Canyon. Petitioner maintains that, to adequately 

address the terrorism issue, the Commission ought to have provided access to non-public 

security information and conducted a closed-door hearing. The Commission hearing in this 

case was pursuant to a court directive in earlier litigation, San Luis Obispo Mothers for Peace v. 

NRC, 449 F.3d 1016 (9th Cir. 2006), cert denied, 127 S.Ct. 1124 (2007), 

Petitioner’s brief is due in February and the NRC’s in March. 

CONTACT: Charles E. Mullins 

 415-1618 
- 6 -

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. After a trial where the United States was represented by Department of Justice 

and NRC lawyers, the government won a $6.5 million judgment. 

SAIC has filed a post-trial motion seeking to set the judgment aside. The post-trial motion is 

awaiting decision. 

CONTACT: Daniel Fruchter 

 415-1575 

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 

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 

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

(D. Mass.) 

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

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

fuels facility in Plainville, Massachusetts. BASF argued 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 invoked RCRA, “federal 

common law,” and the Declaratory Judgment Act. 

The government (represented by the Justice Department) and BASF settled the case, with 

some funds paid out of the Judgment Fund. No action or payment was required of the NRC. 

CONTACT: Susan G. Fonner 

 415-1629 
- 7 -

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

Pa.).

In this case, a subsidiary of Westinghouse sued 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. 

NRC participated in pre-trial discovery, but the case ultimately settled, with no remedy against 

the NRC. The government agreed to pay some decontamination costs out of the Judgment 

Fund. 

CONTACT: Charles E. Mullins 

 415-1618 

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. 

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 collaboratied 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 and issued a published opinion to that effect. 487 F. Supp. 1076 

(E.D. Mo. 2007). 

Ultimately Missouri withdrew this lawsuit, although the Hematite clean-up controversy continues 

in a still-pending lawsuit, Westinghouse Elec. Co. v. United States, No. 4:03-CV-00861 (DDN) 

(E.D. Mo.). 

CONTACT: Charles E. Mullins 

 415-1618 
- 8 -

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

In these consolidated lawsuits the Commonwealth of Massachusetts challenged 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. 

The First Circuit (Lynch, Torruella & Stahl, JJ) ruled that the Commission properly excluded 

Massachusetts’s generic contention from the license renewal adjudications and properly 

required Massachusetts to pursue its grievance in a rulemaking petition. The court indicated 

that Massachusetts could, as we had agreed, participate in the license renewal proceedings as 

in “interested state” and use that status to seek a stay of license renewal pending a decision on 

the rulemaking petition. (The rulemaking petition was subsequently decided, giving rise to new, 

still-pending litigation (New York v. NRC, No. 08-3903-ag & consolidated cases (2d Cir.)). 

Petitioner sought no further review in this case. The First Circuit’s decision is reported at 522 

F.3d 115 (1st Cir. 2008). 

CONTACT: John F. Cordes 

 415-1956 

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. 

The court of appeals (Sloviter, Jordan & Alarcon, JJ) agreed with our arguments 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. New Jersey unsuccessfully sought rehearing. The court of 

appeals decision is reported at 526 F.3d 98 (3d Cir. 2008). 

CONTACT: Charles E. Mullins 

 415-1618 
- 9 -

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 

array of safety and environmental issues. In late 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 held 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 further review. The court of appeals decision is reported at 509 F.3d 

562 (D.C. Cir. 2007). 

CONTACT: John F. Cordes 

 415-1956 

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

These consolidated lawsuits, filed by the County Executive for Westchester County, New York, 

and by the County itself in the Second Circuit and by a New Jersey citizens group in the Third 

Circuit, challenged 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. The cases were consolidated in the Second Circuit. 

After oral argument, the court of appeals (Cabranes, Katzmann & Korman, JJ) issued a short 

decision agreeing with NRC’s position that the agency had acted reasonably in treating 

everyday (non-aging) operational issues within its regular regulatory program rather than as 

license renewal matters. 

Petitioners sought no further review. The court of appeals decision is available at 293 Fed. 

APPX. 91 (2d Cir. 2008). 

CONTACT: Grace H. Kim 

 415-3605