POLICY ISSUE 

INFORMATION 

January 27, 2012 SECY-12-0015

 

FOR: The Commissioners 

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

Solicitor 

SUBJECT: ANNUAL REPORT ON COURT LITIGATION (CALENDAR YEAR 2011) 

PURPOSE: 

To Inform the Commission of the Status of Litigation in the Courts. 

DISCUSSION: 

Enclosed is a report updating events in Nuclear Regulatory Commission (NRC) court litigation 

since my last annual report dated February 3, 2011 (SECY-10-0015). This report reflects the 

status of NRC cases in court as of January 27, 2012. 

During the reporting period (Calendar Year 2011), the Commission or NRC officials were sued 

eleven (11) times in the courts of appeals1

 and once in federal district court.2 During this same 

one-year period ten (10) cases were closed.3

 The twelve (12) new lawsuits in 2011 are in 

 

1 In re: Aiken County, No. 11-1271 (D.C. Cir.); Brown v. NRC, No. 11-1441 (8th Cir.); New 

Jersey v. NRC, No. 11-3228 (3d Cir.); New York v. NRC, Nos. 11-1045, 11-1051, 11-1056, 11-

1057 (D.C. Cir.); Shieldalloy, Inc. v. NRC, No. 11-1449 (D.C. Cir.); Sustainable Energy & 

Economic Develop. Coalition v. NRC. No. 11-1457 (D.C. Cir.); Vermont Department of Public 

Service v. NRC, Nos. 11-1168 & 11-1177 (D.C. Cir.).

2 Anderson v. Jaczko, No. 11-1370 (D. Md.), appeal pending, No. 11-2428 (4th Cir.). 

3

 In re: Aiken County (& Consolidated Cases), Nos. 10-1050, 10-1069 & 10-1082 (D.C. Cir.); 

Brown v. NRC, No. 11-1441 (8th Cir.); General Electric Company v. U.S. Department of Interior, et al.,

Civ. No. 10-404 MCA/RHS (D. N.M.); Honeywell International, Inc. v. NRC, No. 10-1022 (D.C. 

Cir.); New Jersey Environmental Federation v. NRC, No. 09- 2567 (3rd Cir.); Peterson v. NRC, 

No. 10-1097 (D.C. Cir.); San Luis Obispo Mothers for Peace v. NRC, 08-75058 (9th Cir.); 

Shieldalloy v. NRC, No. 09- 1268 (D.C. Cir.). 
The Commissioners - 2 -

line with what we have come to expect over the past decade. There were 9 new lawsuits in 

2010, 8 in 2009, 13 in 2008, 11 in 2007, 8 in 2006, 11 in 2005, 13 in 2004, 14 in 2003, and 8 in 

2002, for an average of 10.7 new lawsuits a year. 

During this reporting period (2011) we also handled twenty-five (25) requests (so-called "Touhy" 

requests) for NRC testimony, depositions, or other evidence for use in private litigation. See 10 

C.F.R. § 9.200 et seq. And we continued to handle a steady stream of discovery demands in 

lawsuits for or against the United States but not involving the NRC as a party. The chief burden 

in this area again this year came in cases brought in the U.S. Court of Federal Claims seeking 

money damages against the government for not meeting the statutory deadline (1998) for a 

high-level waste disposal facility. One of our attorneys (Charles E. Mullins) received an award 

from the Department of Justice for his work last year on discovery and in helping to settle the 

multi-million dollar Westinghouse-Hematite case (No. 4:03-CV-00861 (E.D. Mo.). 

CONTACT: John Cordes 

 (301) 415-1956 

Enclosure: 

Litigation Status Report 

 
 

LITIGATION STATUS REPORT

(As of Jan. 27, 2012)

ACTIVE CASES1

In re: Aiken County, No. 11-1271 (D.C. Cir.) 

This lawsuit, filed by several parties from South Carolina and Washington, seeks mandamus 

relief against NRC for allegedly unlawful inaction and delay in the Yucca Mountain licensing 

proceeding. NRC’s brief maintains that Congress’s cut-off of appropriated funds for the Yucca 

proceeding prevents the agency from continuing with the proceeding and from deciding whether 

to approve or disapprove the DOE license application. The case is set for oral argument on 

May 2, 2012. 

CONTACT: Charles E. Mullins, OGC 

 301-415-1618 

Anderson v. Jaczko, No. 11-1370 (D. Md.), appeal pending, No. 11-2428 (4th Cir.) 

Plaintiff filed a lawsuit complaining that she was a victim of harassment and race discrimination 

while working at NRC. The district court dismissed her suit for lack of jurisdiction and for failure 

to state a claim. Plaintiff has appealed the district court decision to the court of appeals (Fourth 

Circuit). 

CONTACT: Mark J. Maxin 

 301-415-1554 

Baig v. NRC, No. 10-842 (FLW) (D.N.J.) 

Plaintiff, a former NRC employee, claims that he suffered age discrimination and national-origin 

discrimination in employment. Working with the United States Attorney’s office, NRC filed a 

motion to dismiss or for summary judgment. The court dismissed the lawsuit, but allowed 

plaintiff to amend his complaint. Proceedings are ongoing on the amended complaint.. 

CONTACT: John S. Farrington, OGC 

 301-415-2196 

Blue Ridge Environmental Defense League v. NRC, No. 09-1112 & 10-1058 (D.C. Cir.) 

These lawsuits challenge NRC’s decision to reinstate previously-withdrawn construction permits 

at TVA’s Bellefonte site. Because a related adjudication was pending before NRC, the court of 

appeals, on our motion, held the initial lawsuit in abeyance. We moved to dismiss the second 

suit for lack of jurisdiction, but the court directed full briefing on the issue. NRC filed its brief, on 

 

 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, 2012. But narratives accompanying each 

listed case include post-January 1 developments.
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both jurisdiction and the merits last March, and the court heard oral argument in October. We 

are awaiting a decision. 

CONTACT: Jeremy Suttenberg, OGC 

 Grace H. Kim, OGC 

 301-415-3605

Brodsky v. NRC, No.09-Cv-10594 (S.D.N.Y.), appeal pending, No. 11-2016 (2d Cir.) 

This federal district court lawsuit challenged exemptions from fire protection requirements that 

the NRC Staff granted to Indian Point. Plaintiffs had originally challenged the exemptions on a 

petition for review filed in the court of appeals (Second Circuit), but that court held that it lacked 

jurisdiction. The complaint that plaintiffs thereafter filed in district court raised various 

procedural and NEPA-based challenges to the exemptions. In collaboration with our office, the 

U.S. Attorney successfully moved for dismissal and summary judgment. The district court ruled 

that NRC’s grant of the exemptions was reasonable and lawful, and violated no hearing rights. 

Plaintiff has appealed to the Second Circuit, where the case has been briefed and is awaiting 

oral argument. 

 CONTACT: Robert M. Rader, OGC 

 301-415-1955 

El Paso Natural Gas Company, et al., v. United States of America, et al., No. 07-00905, RJL 

(D. D.C.): 

El Paso Natural Gas filed this lawsuit to compel the United States to clean up two sites 

associated with the Tuba City Mill: the Tuba City Dump, and the Highway 160 site. The suit 

asserts a number of theories of liability including the APA, CERCLA, RCRA, and UMTRCA . 

The Navajo Nation has intervened as a plaintiff. The district court dismissed the APA and 

UMTRCA claims against the Department of Energy, and issued a Rule 54 partial judgment 

allowing El Paso to appeal on those issues to the D.C. Circuit. That court affirmed the district 

court’s dismissal order. The case is still pending in the district court, where discovery and other 

motions are pending. NRC is a named defendant in the lawsuit, along with other federal 

agencies and the United States. 

CONTACT: Charles E. Mullins, OGC 

 301-415-1618 

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 court denied the government’s motion to 

dismiss on statute of limitations grounds, and the parties continue to dispute various issues 

before the trial judge. 

CONTACT: Mark J. Maxin, OGC 

 301-415-1554
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Nevada v. NRC, No, 09- 1133 (D.C. Cir.) 

This petition for review challenges NRC’s “Yucca Mountain Rule,” 10 CFR Part 63, which 

implements an EPA rule establishing standards for reviewing the Yucca Mountain high level 

waste application. The case has been held in abeyance, at the joint request of all parties, 

subject to periodic status reports. 

CONTACT: John F. Cordes, OGC 

 301-415-1956 

New Jersey v. NRC, No. 11-3228 (3d Cir.) 

In this lawsuit, New Jersey challenges NRC’s Decommissioning Planning Rule insofar as that 

rule assumes a 1% real rate of return on decommissioning funds. At New Jersey’s request the 

case has been held in abeyance to await the outcome of Shieldalloy v. NRC, No. 11-1449 

(D.C. Cir.). 

CONTACT: James E. Adler 

 301-415-1656 

New York v. NRC, Nos. 11-1045, 11-1051, 11-1056, 11-1057 (D.C. Cir.) 

These consolidated lawsuits – brought by New York, NRDC, BREDL, and the Prairie Island 

Indian Community – challenge NRC’s Waste Confidence Decision and Waste Confidence Rule. 

Vermont and Connecticut joined New York in its petition for review. Petitioners argue that NRC 

ought to have prepared an environmental impact statement analyzing waste confidence, and 

also maintain that NRC lacked sufficient record support for its finding that spent-fuel storage 

onsite for at least 60 years can be accomplished in a safe and environmentally acceptable 

manner. In addition, petitioners challenge the Rule’s expression of confidence that a permanent 

repository will be available when necessary. 

Al briefs have been filed, and oral argument will be on March 20. 

CONTACT: Robert M. Rader 

 301-415-1955 

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. 
- 4 - 

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 from 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. 

Many status reports have since been filed. The most recent indicates that a federal district court 

in Utah has remanded various Interior Department rulings back to the Department for 

reconsideration, but that the Department has not yet resolved the case on remand. Hence, our 

lawsuit remains in abeyance. 

CONTACT: Grace H. Kim, OGC 

 301-415-1607 

Shieldalloy, Inc. v. NRC, No. 11-1449 (D.C. Cir.) 

This is the second time around for Shieldalloy’s attempt to force NRC to retain regulatory 

authority over a contaminated site in New Jersey (owned by Shieldalloy), notwithstanding 

NRC’s entering into an agreement with New Jersey transferring regulatory authority to the state. 

Last year the court or appeals held that NRC had not adequately explained why it was not 

retaining authority over the New Jersey site. On remand the Commission issued a lengthy 

formal opinion justifying its position. Shieldalloy has gone back to the court to try to set aside 

the Commission decision. 

The court has set a briefing schedule, but not an oral argument date. NRC’s brief is due in 

April. 

CONTACT: Grace H. Kim, OGC 

 301-415-1607 

Sustainable Energy & Economic Develop. Coalition v. NRC. No. 11-1457 (D.C. Cir.) 

This lawsuit challenges an NRC adjudicatory decision in the ongoing Comanche Peak COL 

proceeding. The Board rejected a contention on mitigative strategies, and the Commission 

upheld the Board ruling. Petitioners disagree with the contention-admissibility ruling. We filed a 

motion to dismiss the lawsuit as premature, given that the COL decision was not scheduled to 

be reached for several years and that petitioners themselves were still before the Board and the 

Commission raising Fukushima-driven claims for reopening. Petitioners apparently agree with 

our position, as they recently decided to withdraw their lawsuit. The motion for voluntary 

dismissal is pending before the court. 

CONTACT: James E. Adler, OGC 

 301-415-1656 
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United States v. Science Applications International Corp., No. 04-CV-1543 (RWR) (D.D.C.), 

reversed, No. 09-5385 (D.C. Cir.) 

The government sued SAIC under the False Claims Act 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. SAIC at the same time was a hired consultant for entities with 

an interest in the outcome of the NRC rulemaking. After a jury trial where the United States was 

represented by Department of Justice and NRC lawyers, the government won a $6.5 million 

verdict and judgment. The district court rejected SAIC’s motion to set aside the verdict. 

The court of appeals (Tatel, Sentelle & Griffith) reversed the district court judgment because of 

defects in the jury instructions on calculating damages and on when corporate employees’ 

“collective knowledge” could be imputed to the corporation. The court did, however, reject 

SAIC’s position that only express contract conditions are actionable under the False Claims Act, 

and upheld the government’s position that implied conditions (here, providing unbiased advice) 

are actionable as well. 

The case remains pending before the district court on remand.. 

CONTACT: Robin A. Baum, OGC 

 301-415-2202 

Vermont Department of Public Service v. NRC, Nos. 11-1168 & 11-1177 (D.C. Cir.) 

These consolidated cases (one brought by Vermont and the other by the New England 

Coalition) claim that NRC unlawfully renewed Vermont Yankee’s operating license without 

requiring Vermont Yankee to have in place a state water-quality certification under section 401 

of the Clean Water Act. Both sides filed dispositive motions, but the motions panel referred the 

motions to the merits panel. We filed our brief in January. Our brief argues that the lawsuits 

should be dismissed for failure to exhaust remedies at NRC and also that petitioners’ merits 

claims are wrong. Oral argument is set for May 9, 2012. 

CONTACT: Sean D. Croston, OGC 

 301-415-2585 

CLOSED CASES 

In re: Aiken County (& Consolidated Cases), Nos. 10-1050, 10-1069 & 10-1082 (D.C. Cir.) 

These consolidated lawsuits challenged a decision by the Department of Energy (DOE) to 

abandon its effort to obtain an NRC license for a high-level waste facility at Yucca Mountain and 

to withdraw its license application. The lead case was filed by Aiken County (SC). It was 

consolidated with Ferguson v. Obama, No. 10-1052 (D.C. Cir.), South Carolina v. DOE, No. 10-

1069 (D.C. Cir.), and Washington v.DOE, No. 10-1082 (D.C. Cir.). 
- 6 - 

Three of the consolidated suits (all but Ferguson) named NRC or NRC officials as respondents, 

but petitioners’ court of appeals briefs do not argue specific claims against NRC. The court of 

appeals (Sentelle, Brown & Kavanaugh) ruled that petitioners’ suit was not ripe because the 

question whether DOE may lawfully withdraw its Yucca license application was still pending at 

NRC. Judge Brown wrote a concurring opinion calling attention to the possibility of an 

unreasonable-delay claim against NRC. Judge Kavanaugh wrote a concurring opinion 

questioning the constitutionality of NRC’s “independence” in assessing the DOE Yucca 

application. 

The Justice Department represented the government at the court of appeals. 

CONTACT: John F. Cordes, OGC 

 301-415-1956 

Brown v. NRC, No. 11-1441 (8th Cir.) 

This lawsuit challenged the renewal of the Duane Arnold operating license on NEPA grounds. 

We moved to dismiss the suit on the ground of timeliness – petitioners did not file suit within 60 

days of license issuance, as required by the Hobbs Act, but instead used a later Federal 

Register announcement as the trigger for the 60-day deadline. We also moved to dismiss on 

the ground that petitioners had not exhausted NRC remedies – that is, they never sought an 

NRC hearing on their NEPA grievance, despite an opportunity to do so. 

In a short, per curiam decision the court of appeals (Murphy, Arnold & Shepherd) agreed with 

our timeliness argument and dismissed the suit. The court did not reach our exhaustion-ofremedies argument. 

CONTACT: Charles E. Mullins, OGC 

 301-415-1618 

General Electric Company v. U.S. Department of Interior, et al., Civ. No. 10-404 MCA/RHS 

(D. N.M.) 

This case was an attempt by General Electric to obtain reimbursement for clean-up activities at 

the mine(s) associated with the Church Rock Mill. The NRC regulates the tailings pile 

associated with the Mill, but not the mine. GE filed the complaint (naming NRC as a defendant, 

among other agencies) and then initiated settlement negotiations, which produced an 

agreement leading to a consent decree. NRC had no liability under the agreement 

CONTACT: Charles E. Mullins, OGC 

 301-415-1618 

Honeywell International, Inc. v. NRC, No. 10-1022 (D.C. Cir.) 

This petition for review challengedan NRC decision not to grant a licensee, Honeywell, an 

exemption in 2009 from decommissioning financial-assurance requirements. NRC had twice 

previously (in 2007-2008) granted Honeywell an exemption – allowing self-financing in lieu of a 
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surety – on the ground that Honeywell’s strong bond rating and corporate goodwill compensated 

for its failure to have “tangible net worth” at least ten times the current decommissioning cost 

estimate of its licensed fuel facility in Metropolis, Illinois. NRC said that Honeywell’s declining 

tangible net worth no longer justified the exemption. 

The court of appeals (Rogers, Brown & Griffith, JJ) remanded the exemption-denial for further 

proceedings. The court held that NRC had not adequately explained why Honeywell’s bond 

position and corporate goodwill did not continue to justify an exemption, notwithstanding a 

decline in tangible net worth. The court said that the Commission had “left too much to 

Inference” and had not indicated “how far the tangible net worth must decline and over what 

period.” 

On remand NRC Staff again denied the exemption, but Honeywell is contesting that decision in 

a Licensing Board proceeding. 

 

CONTACT: Robert M. Rader, OGC 

 301-415-1955 

New Jersey Environmental Federation v. NRC, No. 09- 2567 (3rd Cir.) 

This petition for review challenged NRC’s decision, after an extensive adjudication, to grant 

Oyster Creek’s license renewal application. Petitioners maintained that NRC made many 

procedural errors during the adjudication and that NRC unlawfully referred some issues to later 

resolution by the NRC Staff. In a thorough opinion, the court of appeals (Fisher, Ambro & 

Sanchez, JJ) upheld NRC’s position in full, including NRC rulings on timeliness of contentions 

and on reopening a closed record. 

. 

CONTACT: Robert M. Rader, OGC 

 301-415-1955 

Peterson v. NRC, No. 10-1097 (D.C. Cir.) 

Petitioner, an advocate for a spent fuel disposal plan that he has developed as an alternative to 

Yucca Mountain, attempted to intervene in the Yucca Mountain adjudicatory proceeding. The 

Licensing Board and the Commission rejected his intervention petition for lack of standing and 

for lack of an admissible contention. Petitioner challenged the decision in court, but his brief did 

not explain why NRC should have allowed his entry into the adjudication but instead argued 

various questions of national policy. 

The court of appeals declined to dismiss the case on our motion, but after full briefing the court 

(Ginsburg, Griffith & Kavanaugh, JJ) denied the petition for review summarily. In a short, per 

curiam order the court pointed out that petitioner had not offered any reason why NRC’s 

decision was unlawful. 

CONTACT: Sean D. Croston 

 301-415-2585
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San Luis Obispo Mothers for Peace v. NRC, 08-75058 (9th Cir.)

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

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

attack on an ISFSI at Diablo Canyon. Petitioner maintained 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), 

This time around, the court (Thomas, Reinhardt & Restani, JJ) upheld NRC’s decision in full. 

The court held that NRC was not obliged under NEPA, or under any other law, to make 

available to intervenors security-sensitive documents exempt from public disclosure under 

NEPA. The court also found, on the record here, that the NRC Staff’s environmental 

assessment on the terrorism issue was adequate. 

CONTACT: Charles E. Mullins, OGC 

 301-415-1618 

Shieldalloy v. NRC, No. 09- 1268 (D.C. Cir.) 

This petition for review challenged NRC’s decision to make New Jersey an agreement state to 

the extent that the agreement covers a contaminated site that petitioner owns. Petitioner 

claimed that New Jersey’s regulatory program, as it relates to petitioner’s site, is incompatible 

with NRC’s, rendering NRC’s entry into an agreement with New Jersey unlawful. The court of 

appeals (Williams, Sentelle & Rogers, JJ) held that NRC had not adequately explained why it 

rejected Shieldalloy’s request that the agency retain NRC jurisdiction over the Shieldalloy site. 

The court therefore remanded the case to NRC without resolving various other arguments 

Shieldalloy had raised. 

On remand, the Commission solicited the parties’ views, and then issued a decision reiterating 

the lawfulness of the transfer of authority to New jersey. Shieldalloy has filed a fresh lawsuit 

challenging that decision. 

CONTACT: Grace H. Kim, OGC 

 301-415-3605