POLICY ISSUE

Information

February 17, 2016 SECY-16-0015

FOR: The Commissioners

FROM: Andrew P. Averbach /RA/

Solicitor

SUBJECT: ANNUAL REPORT ON COURT LITIGATION (CALENDAR YEAR 2015)

PURPOSE: 

To inform the Commission of the status of litigation in the courts.

DISCUSSION: 

Enclosed is a report updating court litigation since the last annual report dated January 30, 2015

(SECY-15-0016). It includes cases filed through the end of 2015 but reflects the status of the 

Nuclear Regulatory Commission (NRC) cases in court as of February 11, 2016. 

During the reporting period (Calendar Year 2015), the Commission or NRC officials were sued

10 times in the courts of appeals, and one time in federal district court.

1

 During this same

one-year period, three cases were closed.2 The number of new filings in 2015—which is largely 

CONTACT: Andrew P. Averbach, OGC

 301-415-1956

 1 Beyond Nuclear, Inc. v. NRC, 15-1173 (D.C. Cir.); Missouri Coalition for the Environment v.

NRC, 15-1114 (D.C. Cir.); Blue Ridge Environmental Defense League v. NRC, 15-1258 (D.C. 

Cir.); Blue Ridge Environmental Defense League v. NRC, 15-1259 (D.C. Cir.); Blue Ridge 

Environmental Defense League v. NRC, 15-1260 (D.C. Cir.); Nuclear Information and Resource 

Service v. NRC, 15-1261 (D.C. Cir.); Sustainable Energy & Economic Development Coalition v. 

NRC, 15-1262 (D.C. Cir.): Beyond Nuclear, Inc. v. NRC, No.15-1263 (D.C. Cir.); Vermont v. 

NRC, 15-1279 (D.C. Cir).; Southern Alliance for Clean Energy v. NRC, 15-1427 (D.C. Cir.);

Beyond Nuclear, Inc. v. NRC, 15-1427 (D.C. Cir.); Thompson v. NRC, 1:15-01302-RDB (D. 

Md.).

2 Shieldalloy Metallurgical Corp. v. NRC, No. 13-1259 (D.C. Cir.); New Jersey v. NRC, No. 11-

3228 (3rd Cir.); Budzynski v. Burns, 12-cv-3174 (D. Md.).
The Commissioners - 2 -

driven by challenges in individual licensing proceedings to the Commission’s Continued Storage 

Rule—is larger than the number of new filings over the last few years, though consistent with 

most of the years during the most recent 10-year period. There were 6 new lawsuits (including 

cases filed in federal district court) in 2014; 3 in 2013; 5 in 2012, 11 in 2011, 9 in 2010, 8 in 

2009, 13 in 2008, 11 in 2007, 8 in 2006, and 11 in 2005, for an average of 8.5 new lawsuits per

year over the prior ten years.

We continue to handle a steady stream of discovery demands in lawsuits brought by or against 

the United States or in which the United States and/or its agencies have been named as a 

third-party defendant. The descriptions of cases set forth in the enclosed report include the 

more significant cases of this type (though they are not included in the count of cases filed 

against the Commission). Much of this work involves responding to requests for documents 

related to the activities of the Atomic Energy Commission (AEC) and/or its licensees. This work 

also includes working with the Department of Justice to review pleadings and implementing 

litigation holds for materials that may be relevant to ongoing litigation.

During this reporting period we also handled 1 new "Touhy" request for NRC testimony, 

depositions, or other evidence for use in private litigation. See Title 10 of the Code of Federal 

Regulations § 9.200 et seq. Over the last several years, our largest discovery-related endeavor 

has related to Touhy requests issued by both sides in litigation between Georgia Power Co. and 

Westinghouse Electric Company Co. in the United States District Court for the Southern District 

of Georgia (No. 1:12-00167-JRH-JEG). That case was settled during calendar year 2015. 

Enclosure: 

Litigation Status Report

cc: SECY

 ASLBP

 CFO

 OEDO

 OGC

 OCAA

 OCA

 OIG

 OPA

 REGIONS
LITIGATION STATUS REPORT

(As of Feb. 11, 2015)

ACTIVE CASES1

Atlantic Richfield Co. v United States and the Pueblo of Laguna, No. 1:15-cv-00056 

(D.N.M.) 

This is a lawsuit under the Comprehensive Environmental Response, Compensation, and 

Liability Act (CERCLA) seeking recovery for cleanup efforts at the Jackpile mine site in New 

Mexico. All defendants moved to dismiss the case, and the Court stayed discovery while it 

considered the motions. On February 9, 2016, the Court dismissed the United States as a 

party, but the case is still proceeding with respect to other parties. The Nuclear Regulatory 

Commission (NRC) has been asked to locate and retain any relevant documents.

CONTACT: Charles E. Mullins, OGC

 301-415-1618

Brodsky v. NRC, No. 15-1330 (2d Cir.)

This lawsuit challenges fire-protection exemptions that NRC granted to Indian Point. The case 

was originally brought in the court of appeals (Second Circuit) but that court found that it lacked 

jurisdiction. Petitioners (now plaintiffs) then re-filed their case in federal district court. The 

district court ruled for NRC on both grounds raised in the complaint. Plaintiffs appealed and, on 

January 7, 2013, the court of appeals for the Second Circuit issued a decision that upheld the 

district court’s conclusion concerning the validity of the exemption. However, the court 

remanded the case back to the district court, with instruction that it remand the case back to the 

Commission, so that the Commission could either articulate, within 120 days of the issuance of

the appellate court's mandate, why public participation was not required prior to the issuance of 

an environmental assessment and a finding of no significant environmental impact relating to 

the exemption, or for other appropriate action. The appellate panel "retained jurisdiction for the 

purpose of ruling, if necessary, on any timely appeal from the district court's final judgment." In 

response to the court's order, the Commission circulated a draft environmental assessment (EA) 

and finding of no significant impact (FONSI) related to the exemption. On August 27, 2013, the 

Commission published in the Federal Register a final EA and FONSI and issued its 

determination that the exemption should remain in place. On February 15, 2014, Mr. Brodsky 

filed a brief before the district court, challenging the NRC's actions on remand and, among other 

things, asserting that the EA supporting the exemption was invalid because it did not address 

the possible consequences of a terrorist attack. The U.S. Attorney filed its responsive brief on 

behalf of the NRC on April 11, 2014, and, on February 26, 2015, the court granted the agency's 

motion for summary judgment. The court ruled that the agency satisfied NEPA's public 

participation requirements by issuing the draft EA for comment and responding to the 

comments, and that no additional hearing was required. The court also rejected a number of 

additional arguments raised by Mr. Brodsky on the ground that they had already been ruled in 

prior phases of the litigation, including arguments related to the effects of a potential terrorist 

attack. Mr. Brosdky appealed this decision to the Second Circuit, asserting that the NRC's 

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

still subject to further judicial review, as of January 1, 2016. However, the narratives 

accompanying the cases listed in this report include any post-January 1 developments.
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issuance of the exemption did not comply with NEPA because the agency failed to consider the 

effects of terrorism when it issued the exemption. Briefing is now complete. The court of 

appeals previously stated that it would decide any appeal following remand without oral 

argument; the agency awaits a decision.

CONTACT: Andrew P. Averbach, OGC

 301-415-1956

Commonwealth of Pennsylvania. v. Lockheed Martin Corp., No. 09-cv-00821 (M.D. Pa.)

The Commonwealth has filed a CERCLA case against Lockheed Martin over the cleanup of the 

Quehanna site in central Pennsylvania. Lockheed Martin, in turn, has sued the United States 

for contribution, alleging that the waste left at the site was due to activities performed pursuant 

to government contracts, including contracts that involve the activities of the Atomic Energy 

Commission. 

The Department of Justice filed a motion for summary judgment in late 2014 and the district 

court denied the motion. The parties have now commenced informal settlement negotiations.

CONTACT: Charles E. Mullins, OGC

301-415-1618

El Paso Natural Gas Company, v. United States, No. 07-cv-905 (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. NRC is a 

named defendant in the lawsuit, along with other federal agencies and the United States. All 

defendants are represented by the Department of Justice. 

The suit asserts a number of theories of liability including the Administrative Procedure Act 

(APA), CERCLA, the Resource Conservation Recovery Act (RCRA), and the Uranium Mill 

Tailings Radiation Control Act (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 partial judgment allowing El Paso to appeal on those issues to the D.C. Circuit. That 

court affirmed the district court’s dismissal order. El Paso Natural Gas Co. v. United States, 632 

F.3d 12721 (D.C. Cir. 2011). The United States then moved for dismissal of the remaining 

claims and the district court granted that motion as well. 

Both plaintiffs appealed and the D.C. Circuit affirmed the dismissal of most of the claims with 

two exceptions. El Paso Natural Gas Co. v. United States, 750 F.3d 863 (D.C. Cir. 2014). First, 

the Court of Appeals agreed that one of the plaintiffs’ claims should have been dismissed 

“without prejudice” instead of “with prejudice.” Second, the Court re-instated the plaintiffs’ 

RCRA claims relating to groundwater contamination at the Highway 160 site and remanded 

them to the District Court for further proceedings. 

The District Court has held the case in abeyance at the parties’ request. The Department of 

Justice and the Department of Energy, the primary agency defendant in the case, are engaging 

in settlement discussions with the plaintiffs. 
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CONTACT: Charles E. Mullins, OGC

 301-415-1618

El Paso Natural Gas Co. v. United States, No. 3:14-cv-08165-DGC (D. Az.)

This is the second lawsuit by the El Paso Natural Gas Co. against the United States. This 

CERCLA lawsuit seeks the cleanup of waste resulting from mining at 19 mines in New Mexico 

and Arizona between the late 1940’s and the 1960s. The Department of Justice has filed an 

answer to the initial complaint and has requested NRC’s assistance Iocating potentially relevant 

documents concerning the mines. The parties have started discovery and the NRC is reviewing 

documents maintained in its files for potentially relevant materials.

CONTACT: Charles E. Mullins, OGC

 301-415-1618

EPEC Polymers, Inc. v. NL Industries, Inc., No. 3:12-cv-03842 (D.N.J.)

The United States is defending against a third-party complaint alleging that the Army Corps of 

Engineers is responsible for environmental response costs under CERCLA because it dredged 

thorium-containing materials from the Raritan River in New Jersey and disposed of them on a 

site now owned by the plaintiff. The plaintiff alleges that the thorium was discharged from a 

facility owned by defendant NL Industries, Inc., in Sayreville, New Jersey. NL in turn alleges 

that the thorium is traceable to the activities of Tenneco Chemicals, Inc., the holder an AEC 

license, and that the NRC performed a field team investigation and approved the 

decommissioning of plaintiff’s site in the late 1990s or early 2000s. OGC attorneys have 

coordinated with the Department of Justice in obtaining documents related to the AEC license 

and the field team investigation. 

The United States has completed its document production and is awaiting document production 

by the original parties. The Plaintiffs have submitted a cost demand and the parties are 

discussing the possibility of mediation. 

CONTACT: Charles E. Mullins, OGC

301-415-1618

Jeremy M. Suttenberg, OGC

301-415-2842

Friends of the Earth v. NRC, No. 14-1213 (D.C. Cir.)

On October 28, 2014, Friends of the Earth filed a petition for review of the Commission's 

approval of an update to the final safety analysis report (FSAR) for Diablo Canyon, asserting 

that this update should not have taken place without interested parties being afforded the 

opportunity for a hearing. On December 10, 2014, the NRC and the United States moved to 

dismiss the petition, asserting that (1) because of the pendency of the same issue in an 

adjudication before the Commission (in which Friends of the Earth makes the same argument, 

relying on the same FSAR update that it identified in the court of appeals), no final order has 

been issued that is reviewable under the Hobbs Act; and (2) Friends of the Earth had not 

exhausted its administrative remedies. PG&E, which has intervened in the case, supported the 

motion; Friends of the Earth opposed it; and NRC filed a reply on January 8, 2015. On 

February 20, 2015, the court referred the motion to the merits panel. NRC then moved to defer 
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briefing on the case, noting that, because the same issue was still pending for the agency, its 

attorneys had no Commission position to defend with respect to the argument raised by Friends 

of the Earth -- whether there has been a de facto license amendment. NRC requested that 

briefing be deferred until a final decision has been made with respect to this issue by the 

Commission. Friends of the Earth also moved to supplement the administrative record so as to 

include an internal licensee document concerning the decision under review. The NRC 

opposed, asserting that the document was not before the agency as part of the decision-making 

process. On April 13, 2015, the court granted NRC's motion to defer briefing pending resolution 

by the Commission of Friends of the Earth's request for a hearing on the asserted de facto 

license amendment. On May 21, 2015, the Commission issued an order referring the request in 

part to the Atomic Safety and Licensing Board Panel. NRC has advised the court of the referral 

of the hearing request to the Licensing Board, and it filed status reports at 60-day intervals 

concerning the status of the proceedings. On September 15, 2015, NRC filed a motion to 

continue to hold the case in abeyance pending resolution of the hearing request by the ASLBP 

and, if necessary, the Commission, which Friends of the Earth opposed. On December 9, 2015, 

the court granted the motion to continue to hold the case in abeyance and directed the parties to 

file motions to govern further proceedings on or before February 26, 2016.

CONTACT: Charles E. Mullins, OGC

 301-415-1618

Friends of the Earth v. NRC, No. 16-1004 (D.C. Cir.) [filed in January 2016]

Friends of the Earth seeks review of a Commission decision (CLI-15-21) that denied its attempt 

to intervene in an ongoing NRC administrative proceeding related to the renewal of the Diablo 

Canyon operating licenses. Friends of the Earth argued before the Commission that the 

operating licenses for Diablo Canyon Units 1 and 2 may not be renewed until the agency 

explores, in an evidentiary hearing, the impact of the certain seismic information on the safe 

operation of the plant; the Commission affirmed the dismissal of its contentions and denial of its 

related waiver request. We await a briefing schedule from the Court.

CONTACT: Charles E. Mullins, OGC

 301-415-1618

Kandel v. United States, No. 06-cv-872 (Fed. Cl.)

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

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

retirement. Discovery is underway to determine the how much money may be due to the opt-in 

claimants and the named plaintiffs. 

CONTACT: Mark J. Maxin, OGC

 301-415-1554

Natural Resources Defense Council v. NRC, No. 14-1225 (D.C. Cir.)

On October 31, 2013, the Commission denied NRDC's petition to waive 10 C.F.R.

§ 51.53(c)(3)(ii)(L) in connection with Exelon's application to renew the operating licenses for

Limerick Generating Station, Units 1 and 2. That provision exempts Exelon from including in its 

Environmental Report a site specific severe accident mitigation alternatives (SAMA) analysis 

because the NRC Staff previously considered SAMAs in the Final Environmental Statement 
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supporting issuance of the Limerick operating licenses. The Commission determined that 

NRDC had not shown that the issues it sought to litigate were unique to Limerick and that, as a 

result, NRDC’s SAMA-related contentions impermissibly challenged section 51.53(c)(3)(ii)(L). 

NRDC filed a petition for review on December 24, 2013 (No. 13-1311). On February 10, 2014, 

the NRC moved to dismiss the petition, asserting that the order appealed from was not final 

(because NRDC still had a waste confidence contention pending) and not ripe for review. On 

May 8, 2014, the court issued an order deferring consideration of the motion to dismiss until the 

case was briefed on the merits, and directing the clerk to issue a scheduling order for briefing in 

the case. On November 5, 2014, following the dismissal of NRDC's waste confidence 

contention (and thus, entry of a final order denying NRDC party status), NRDC filed a second 

petition (case No. 14-1225), which it moved to consolidate with its original petition. Prior to oral 

argument on Case No. 13-1311, which was scheduled for November 21, 2014, the court issued 

an order that dismissed the first case (apparently accepting the NRC's argument that it lacked 

jurisdiction over the case), removed the argument from the calendar, and directed the clerk to 

issue a scheduling order so that the newly filed case could proceed through briefing and 

argument. NRDC argued that it had been improperly denied a hearing opportunity with respect 

to its assertion that there was new and significant information relating to SAMAs that should 

have been considered as part of the license renewal. Oral argument was held on September 

17, 2015, before Judges Rogers, Brown, and Kavanaugh; the agency awaits a decision from the 

court.

CONTACT: James E. Adler, OGC

 301-415-1656

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

This petition for review challenges NRC’s “Yucca Mountain Rule,” 10 C.F.R. Part 63, which 

implements an EPA rule establishing standards for reviewing the Yucca Mountain repository

application. Given the suspension of adjudicatory proceedings before the Commission related 

to Yucca Mountain and the uncertainty surrounding the Yucca Mountain project (including the 

lack of new appropriations from Congress from the Nuclear Waste Fund), the case has been 

held in abeyance, subject to periodic status reports. In these reports, the parties have advised 

the court of the resumption of the licensing process following the issuance of a writ of 

mandamus in In re Aiken County. The case remains in abeyance.

CONTACT: Jeremy M. Suttenberg, OGC

 301-415-2842

New York v. NRC, No, 14-1210 (D.C. Cir.); Prairie Island Indian Community v. NRC, No. 14-

1212 (D.C. Cir.); Beyond Nuclear, Inc. v. NRC, No. 14-1216 (D.C. Cir.); Natural Resources 

Defense Council v. NRC, No. 14-1217 (D.C. Cir.)

These four consolidated petitions for review, brought by a group of environmental organizations, 

several states, and an Indian tribe, challenge the agency’s Continued Storage Rule, 10 C.F.R.

§ 51.23, and associated Generic Environmental Impact Statement. The Petitioners claim

violations of NEPA and contend, among other things, that the impacts that the agency identified 

cannot be applied generically; that the agency failed to consider alternatives or to evaluate 

mitigation; and that the agency made improper assumptions in support of its analysis. Oral 

argument is scheduled before Judges Kavanaugh, Edwards, and Sentelle on February 22, 

2016.
- 6 -

After these cases were filed, a number of environmental groups filed related petitions for review

of the dismissal by the Commission of contentions relating to the Continued Storage Rule. The 

petitions for review seek to invalidate the issuance of any reactor licenses (or license renewals) 

that have been issued or may be issued in the future on the basis of the Continued Storage 

Rule. These cases, which have all been held in abeyance pending the resolution of New York 

v. NRC, are: 

• Missouri Coalition for the Environment v. NRC (D.C. Cir. No. 15-1114): (Callaway 

license renewal)

• Beyond Nuclear, Inc. v. NRC (D.C. Cir. No. 15-1173) (Fermi Unit 3 combined 

license)

• Blue Ridge Environmental Defense League v. NRC (D.C. Cir. 15-1258) 

(Sequoyah license renewal)

• Blue Ridge Environmental Defense League v. NRC (D.C. Cir. 15-1259) (WS Lee 

1 and 2 combined license)

• Blue Ridge Environmental Defense League (D.C. Cir. 15-1260) (North Anna 3 

combined license)

• Nuclear Information Research Service v. NRC (D.C. Cir. 15-1261) (Levy 1 and 2 

combined license)

• Sustainable Energy and Economic Development Coalition v. NRC (D.C. Cir. 15-

1262) (STP 1 and 2 license renewal)

• Southern Alliance for Clean Energy v. NRC (D.C. Cir. 15-1427) (Watts Bar 2 

operating license)

CONTACT: Andrew P. Averbach, OGC

 301-415-1956

Pueblo of Laguna v. United States, No. 02-24 (Fed. Cl.); Jicarilla Apache Nation v. United 

States, No. 02-25 (Fed. Cl.)

In these cases, the plaintiffs (two separate Indian tribes) seek an accounting of the federal 

government’s alleged mismanagement of the tribe’s trust funds and other properties. Plaintiffs 

also seek recovery for monetary loss and damages. The court issued discovery and document 

preservation orders in both cases and the NRC provided documents to the Department of 

Justice. 

The Laguna case has settled and the case was dismissed on December 9, 2013. The Jicarilla

case was tried on the Tribe’s investment claims for the 1972 to 1992 time period in the spring of 

2012 and the court issued a decision in favor of the Tribe. The parties in Jicarilla were 

scheduled to litigate Phase 2 of a 3-phase proceeding in 2015, but the court assigned a new 

judge to the case. The trial is now scheduled to resume on July 1, 2016. In the meantime, the 

court is considering issuing a formal, partial judgment to allow the parties to appeal the Phase 1 

decision to the Federal Circuit.

CONTACT: Charles E. Mullins, OGC

301-415-1618
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Ohngo Gaudadeh Devia v. NRC, Nos. 05-1419, 05-1420, 06-1087 (D.C. Cir.)

This is the caption for three consolidated lawsuits filed by dissident Goshutes and the State of 

Utah challenging a series of Commission adjudicatory decisions authorizing issuance of a 

license for the proposed Private Fuel Storage (PFS) spent fuel storage facility. The case is fully 

briefed, but the court of appeals decided to hold the case in abeyance, as not currently "ripe," 

because PFS had failed to obtain necessary approvals from Department of the Interior (DOI) 

sub-agencies. PFS went to federal district court to challenge the other agencies' decisions. 

PFS prevailed in 2010, obtaining a remand to DOI. Ever since, the parties have filed a series of 

joint status reports in the D.C. Circuit agreeing that the case should remain in abeyance pending 

further developments. Although PFS previously moved to terminate its NRC license, it has 

withdrawn its termination request, and the parties have advised the court that PFS is still 

awaiting official action on the approvals.

CONTACT: Grace H. Kim, OGC

 301-415-1607

Thompson v. NRC; 1:15-01302-RDB (D. Md.)

Plaintiffs, employees of an NRC contractor, brought civil rights complaints against NRC 

employees and the agency. The court granted a motion to dismiss filed by a former employee 

on the ground that the claims were not properly brought against federal employees and were in 

any event time-barred; a motion to dismiss filed by the agency and a current employee remains 

pending.

United Nuclear v. United States, No. 1:15-cv-00411 (D.N.M.)

This is a CERCLA lawsuit seeking recovery for cleanup efforts at the San Mateo mine in New 

Mexico. The parties have not yet started discovery. NRC has been asked to locate and retain 

any relevant documents.

CONTACT: Charles E. Mullins, OGC

301-415-1618

Vermont v. NRC, No. 15-1279 (D.C. Cir.)

On August 13, 2015, the State of Vermont, Vermont Yankee Nuclear Power Corporation, and 

Green Mountain Power Corporation filed a petition for review of NRC's issuance of an 

exemption relating to the release of decommissioning trust funds for the management of spent 

fuel. The petitioners contend that the exemption will lead to the release of funds for improper 

purposes, thus jeopardizing the ability of the Vermont Yankee plant to decommission safely 

and/or limiting the amount of money left in the fund following the completion of 

decommissioning, which is ultimately to be re-distributed back the utility petitioners and the 

Vermont ratepayers. On November 4, 2015, the petitioners filed a petition with the Commission,

seeking review of the issuance of the exemption as well as several issues related to the 

decommissioning of the Vermont Yankee plant. In NRC's view, this petition renders the 

agency's issuance of the exemption non-final for purposes of judicial review under the Hobbs 

Act and, on November 16, 2015, the agency filed a motion to dismiss the petition for review for 

lack of jurisdiction. Vermont filed a response to the motion on December 11, asserting that the 

petition before the agency does not render the exemption non-final because the agency has 

discretion to consider it and there is no guarantee that the petition will, in fact, be considered. 

On February 8, 2016, the court granted the motion to dismiss, stating that Vermont’s petition 
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had been rendered “incurably premature,” and that Vermont could seek review of the 

Commission decision on its agency-level position and could raise any arguments concerning the 

exemption in such a petition.

CONTACT: Grace H. Kim, OGC

301-415-3605
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CLOSED CASES

ABB Inc. v. United States, No. 3:13-cv-01265-CSH (D. Conn.) 

ABB and Combustion Engineering (CE) are wholly owned subsidiaries of ABB Holdings. CE 

owns a site at Windsor, Connecticut, where it conducted contract work on naval reactors for the 

AEC from 1955 through 1961. CE later conducted licensed operations for commercial entities 

under both the AEC and the NRC at other areas on the site. The United States subsequently 

designated that portion of the Windsor location that had been used for Naval Reactor contract 

work for cleanup under the Formerly Utilized Sites Remedial Action Program (FUSRAP). 

However, the Corps of Engineers (which performs FUSRAP cleanup) indicated that it would 

take several years to complete this activity. 

ABB and CE decommissioned the portion of the site used for NRC-licensed work and then 

asked the Corps of Engineers to allow it to decommission the FUSRAP portion under NRC 

auspices and to sue the government for contribution. The NRC and the Corps agreed to this 

proposal. ABB and CE have now completed that work and filed this lawsuit under CERCLA, 

seeking contribution from the United States, which is represented by the Department of Justice. 

ABB and CE claim that the United States is liable in part because of the AEC ownership and 

control of the Naval Reactor contract process. 

After conducting some discovery, the parties entered into mediation. With the Mediator’s 

assistance, the parties negotiated an agreement. The Department of Justice then drafted a 

proposed consent decree, which was published in the Federal Register for comment. There 

were no comments on the consent decree. The court entered the Consent Decree on February 

6, 2015, and closed the case. 

.

CONTACT: Charles E. Mullins, OGC

301-415-1618

Budzynski v. Burns, No. 12-cv-3174 (D. Md.)

Plaintiff, an NRC employee, claims that he was a victim of age discrimination when he was not 

selected for a position advertised in an NRC vacancy announcement. The NRC assisted the 

United States Attorney’s office in filing two motions for summary judgment. The motions for 

summary judgment were denied and a trial was held in February 10 through 13, 2015, in the 

U.S. District Court for the District of Maryland. On February 18, 2015, the Court issued a bench 

decision in favor of plaintiff. Judgment was entered on March 2, 2015, and no appeal was 

taken.

CONTACT: Mark J. Maxin, OGC

 301-415-1554
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New Jersey v. NRC, No. 11-3228 (3rd Cir.)

In this lawsuit, New Jersey challenged 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 was held in abeyance pending the outcome of the Shieldalloy litigation (discussed below), 

which concerned the validity of the NRC’s transfer of authority to New Jersey as an Agreement 

State. Once the Shieldalloy decision became final, New Jersey voluntarily withdrew its petition 

for review as moot.

CONTACT: James E. Adler, OGC

 301-415-1656

Shieldalloy Metallurgical Corp. v. NRC, No. 13-1259 (D.C. Cir.); 

In response to the D.C. Circuit’s decision in Shieldalloy Metallurgical Corp. v. United States, 707 

F.3d 371 (D.C. Cir. 2013), the Commission issued a memorandum and order, CLI-13-06, 

reinstating New Jersey’s authority to regulate Shieldalloy’s Newfield, New Jersey, site, and 

further explaining why New Jersey’s standards governing license termination were consistent 

with the Commission’s. Shieldalloy filed a petition for review of the Commission’s order, 

asserting that CLI-13-06 rested upon an inaccurate interpretation of the Commission’s 

regulations and that the Commission’s as-low-as-reasonably-achievable (ALARA) principle 

compelled the use of the decommissioning alternative that yielded the lowest achievable dose 

of radioactivity. On October 14, 2014, the Court of Appeals denied the petition for review, ruling 

that the applicable regulation, 10 C.F.R. § 20.1403(a), uses the ALARA principle as an eligibility 

test that permits licensees to use restricted release decommissioning methods only where it can 

show that it is not cost-effective to employ unrestricted release. Shieldalloy petitioned for panel 

rehearing, and the court denied the petition on December 10, 2014. Shieldalloy did not file a 

petition for a writ of certiorari and the decision is final.

CONTACT: Andrew P. Averbach, OGC

301-415-1956

Grace H. Kim, OGC

301-415-3605