Nebraska Public Power District v. U.S.

Jan 12: In the U.S. Court of Appeals, Federal Circuit, Case No. 07-5083. In this en banc decision, which included concurring opinion and a lone dissenting opinion, the Appeals Court addresses what it called "a difficult question involving the allocation of jurisdiction between regional circuit courts and the Court of Federal Claims." The dispute in centers on the interaction between a provision of the Nuclear Waste Policy Act (NWPA), 42 U.S.C. §§ 10101-10270, and a government contract with a utility company that operates a nuclear power facility.

As explained by the Federal Circuit, the NWPA authorizes the United States Department of Energy (DOE) to enter into contracts with nuclear power producers to dispose of the high-level radioactive waste and spent nuclear fuel produced by nuclear power plants. The statute requires the contracts to provide that in return for the payment of fees by the nuclear power producers, DOE would begin disposing of the spent nuclear fuel and high-level radioactive waste no later than January 31, 1998. 42 U.S.C. § 10222(a)(5)(B). DOE did not begin accepting nuclear waste in 1998.

"Several years later, Nebraska Public Power District (NPPD), which had entered a nuclear waste disposal contract with DOE, filed a breach of contract action in the Court of Federal Claims. A central issue in the breach of contract action was whether prior decisions of the United States Court of Appeals for the District of Columbia Circuit interpreting DOE’s obligations under the NWPA were binding on the parties in the action before the Court of Federal Claims.

The Court of Federal Claims held that the D.C. Circuit’s rulings were void because the D.C. Circuit lacked jurisdiction in the prior statutory review proceedings. Neb. Pub. Power Dist. v. United States, 73 Fed. Cl. 650 (2006). That issue is now before us on interlocutory review. We hold that the D.C. Circuit had jurisdiction to review DOE’s compliance with the NWPA, and that the mandamus order issued by the D.C. Circuit in that proceeding is not void. We therefore reverse the order of the Court of Federal Claims and remand to that court for further proceedings."

The 11-1 majority ruled, "In sum, the D.C. Circuit’s decisions in the Indiana Michigan and Northern States cases were not barred by sovereign immunity and should not have been denied res judicata effect on that ground. We therefore reverse the order of the Court of Federal Claims under review and remand for further proceedings consistent with this opinion."

In a lone dissenting opinion, one Justice indicated, "The issue before the court is a fundamental question of jurisdiction between this court and the D.C. Circuit. If the order in mandamus issued by the D.C. Circuit had interpreted the statutory requirements of the Nuclear Waste Policy Act (NWPA), then it would have been within that court’s jurisdiction. Instead, the D.C. Circuit actually forbids the United States from defending itself in a contract action in the Court of Federal Claims. In my judgment, the order in mandamus is clearly directed to the interpretation of the Standard Contract (not the NWPA) and is thus not only outside the jurisdiction of the D.C. Circuit, but also infringes upon the Court of Federal Claims’s exclusive Tucker Act jurisdiction over the administration of contract disputes, thereby impacting the sovereign immunity of the United States and undermining this court’s duty to review the contract decisions of the Court of Federal Claims. I must therefore dissent from the majority’s judgment. . . I can appreciate the majority’s attempt to avoid criticism of a sister court, but the sheer mushy applesauce consistency of the majority opinion in avoiding a jurisdictional confrontation with the D.C. Circuit should be obvious. On this basis, the trial court’s ultimate holding to void the mandamus was correct and should be affirmed."

According to media reports utilities have filed 71 breach of contract cases in the U.S. Court of Federal Claims and the Department of Energy (DOE) estimates of the government's potential liability is $12.3 billion; but utilities estimates damages at $50 billion. According to media reports utilities have filed 71 breach of contract cases in the U.S. Court of Federal Claims and the Department of Energy (DOE) estimates of the government's potential liability is $12.3 billion; but utilities estimates damages at $50 billion. On December 2, the Government Accountability Office (GAO) released a report entitled, Nuclear Waste Management: Key Attributes, Challenges, and Costs for the Yucca Mountain Repository and Two Potential Alternatives (GAO-10-48, November 04, 2009). The report discusses the options of dealing with the nation's most hazardous substances -- which is accumulating at 80 sites in 35 states. The United States has generated 70,000 metric tons of nuclear waste and is expected to generate 153,000 metric tons by 2055 [See WIMS 12/3/09].

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New York v. Nuclear Regulatory Commission

Dec 21: In the U.S. Court of Appeals, Second Circuit, Case No. 08-3903. The case involves a petition for review of a decision of the Nuclear Regulatory Commission denying rulemaking petitions filed by Massachusetts and California. The Appeals Court indicated, "As the Nuclear Regulatory Commission has given due consideration to the relevant studies concerning the rulemaking petitions, we must defer to its expertise in determining the proper risk level associated with the storage of nuclear material in spent fuel pools, and therefore deny the petition to review the Nuclear Regulatory Commission’s decision."

The two States filed rulemaking petitions (Massachusetts in 2006, and California in 2007) asking the NRC to reverse its 1996 Generic Environmental Impact Statement, which found (among other things) that spent fuel pools at nuclear power plants do not create a significant environmental impact within the meaning of the National Environmental Policy Act (NEPA). The States petitioning for review here (New York, Connecticut, and Massachusetts) claim standing on the ground that nuclear power plants are within or near their borders and that an accident at one of these plants could harm their citizens.

The States on appeal contended that the risk of a spent fuel pool fire must be a Category II rather than a Category I risk, because the risk is affected by mitigation that varies from plant to plant. It is true that the NRC relies in part upon mitigation at nuclear power plants -- including various coolant sprays and makeup water systems in case of pool drainage -- to conclude that the risk of an accidental or terrorist-caused fire in the pools is uniformly low. However, the NRC has mandated that these mitigation tactics be implemented at all nuclear power plants. The Appeals Court ruled, "The NRC relies on numerous studies detailing the effectiveness of its required mitigation measures; these studies constitute substantial evidence."

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Coalition On West Valley Nuclear Wastes v. Chu

Aug 31: In the U.S. Court of Appeals, Second Circuit, Case No. 07-5243. As explained by the Appeals Court, the Coalition on West Valley Nuclear Wastes, et al contend that the United States Department of Energy (DOE, & Secy. Chu) violated both the National Environmental Policy Act (NEPA) and the terms of a 1987 settlement between the Coalition and the DOE by issuing an environmental impact statement concerning waste management activities at the West Valley Project site, a portion of the Western New York Nuclear Service Center, that did not address long-term closure issues regarding the rest of the Center. The district court granted summary judgment in favor of DOE on all claims and the Appeals Court affirmed the decision.

On one of the main issues of contention, the Appeals Court said, "The DOE’s final Record of Decision on the Waste Management EIS indicates that its waste management actions entail shipping certain kinds of waste off-site and storing high-level waste at the West Valley site until it can be shipped to a geologic repository. . . As the district court found, removing the waste from the site has “independent utility,” for instance in storing the waste more safely, regardless of whether the Center as a whole is closed or decommissioned. Appellants have failed to present any evidence that would suggest that dealing in a more permanent fashion with waste that is currently left on the Project site somehow depends on closing the entire Center for its justification. Thus, we agree with the district court’s conclusion that the waste management actions are not “connected” to the closure actions. . . We also perceive no basis in the record for concluding that the actions are either cumulative in character, yielding cumulative environmental impacts that should be discussed in the same EIS . . . or that they are so similar that the 'best way to assess adequately the combined impacts . . . is to treat them in a single impact statement' . . ."

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Public Citizen v. Nuclear Regulatory Commission

Jun 24: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-71868 & 07-72555. Petitioners Public Citizen, Inc., San Luis Obispo Mothers For Peace, the State of New York, and amicus State of California (Petitioners) challenge the Nuclear Regulatory Commission’s (NRC or Commission) modification of the Design Basis Threat (DBT) rule and partial denial of the Committee to Bridge the Gap’s (CBG) petition for rulemaking. Petitioners claim the Commission acted arbitrarily and capriciously and contrary to law by refusing to include the threat of air attacks in the final revised DBT rule. Petitioners also claim NRC violated the National Environmental Policy Act (NEPA) by not considering the risk of an airborne terrorist attack in its Environmental Assessment (EA), and that this risk creates a potentially significant impact on the environment necessitating a full Environmental Impact Statement (EIS). In a split, 2-1 decision, the Appeals Court denied the petition.

In denying the petition, the majority said in part, "Because the Commission acted within its discretion in concluding that air-based threats were beyond the scope of the DBT rule, however, it was unnecessary for the Commission to consider that decision as an alternative course within the scope of the rule. The Commission’s determination that air-based threats were outside the scope of the DBT rule distinguishes this case from a case like Center for Biological Diversity [538 F.3d at 1215], where we held an agency must consider a broad range of alternative actions within the scope of the rule at issue, beyond those alternatives the agency seriously considered. We decline to extend that holding to create a rule that ignores reasonable boundaries in the scope of an EA alternative action analysis. The Commission did not merely select among a range of options, but instead determined air-based threats were not properly addressed by the DBT rule. As noted above, this decision was within the Commission’s discretion and it need not include an analysis of airbased threats within the EA alternative action section."

The dissenting opinion states in conclusion, "Although we owe the NRC considerable deference, the NRC owes the public a rational and reasonable explanation why it would exclude from its rule consideration of terrorist air attacks on nuclear facilities. In the face of near-uniform scientific studies warning of serious risk, bare assurances by the NRC that we are safe do not satisfy this minimal agency burden."

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New Jersey DEP v. U.S. Nuclear Regulatory Commission

Mar 31: In the U.S. Court of Appeals, Third Circuit, Case No. 07-2271. As explained by the Appeals Court, the issue presented by the appeal is whether the Nuclear Regulatory Commission (NRC), when it is reviewing an application to relicense a nuclear power facility, must examine the environmental impact of a hypothetical terrorist attack on that nuclear power facility. The New Jersey Department of Environmental Protection (NJDEP) contends that the National Environmental Policy Act of 1969 (NEPA) requires the analysis of the impact of such an attack.

NJDEP petitioned for review of an NRC decision denying its request to intervene in relicensing proceedings for the Oyster Creek Nuclear Generating Station (Oyster Creek). The NRC concluded that terrorist attacks are “too far removed from the natural or expected consequences of agency action” to require an environmental impact analysis and that, in any event, it had already addressed the environmental impact of a potential terrorist act at Oyster Creek through its Generic Environmental Impact Statement [GEIS] and site-specific Supplemental Environmental Impact Statement [SEIS]. The Appeals Court agreed with the NRC and denied the petition for review.

The Third Circuit explained its decision further saying, ". . .the GEIS and SEIS together provide both generic and site-specific analyses of potential environmental impacts at Oyster Creek arising from terrorist attacks. New Jersey has never explained how or why an aircraft attack on Oyster Creek would produce impacts that are different from severe accidents and has not provided any evidence that the NRC could engage in a meaningful analysis of the risks of an attack. Instead, NJDEP argues, quoting our decision in Limerick Ecology Action v. NRC, that the NRC’s 'mere assertion of unquantifiability' does not immunize it from having to conduct a NEPA analysis. . . This is a true statement of the law, but it ignores our holding in Limerick that the burden is on the petitioner to demonstrate that the NRC could evaluate risks more meaningfully than it has already done. . . NJDEP has not met its burden here.

"Because NJDEP did not present an admissible contention before the NRC, concerning the environmental effects of a hypothetical aircraft attack on Oyster Creek, we will deny the petition for review."

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Dumontier v. Schlumberger Technology Corp

Sep 11: In the U.S. Court of Appeals, Ninth Circuit, Case No. 05-36005. In this case, the Appeals Court considers whether "subcellular damage" amounts to bodily injury under the Price-Anderson Act. As explained by the Appeals Court Schlumberger Technology Corporation’s employees carelessly left some cesium-137 on a drilling rig. Plaintiffs later worked on the rig and were exposed. Though less well known than uranium or plutonium, cesium exposure can cause burns, radiation sickness and cancer; if ingested, it causes mania. Plaintiffs have not developed cancer or any other illness; however, they sued Schlumberger, claiming that the radiation caused "subcellular damage," including to their DNA. They brought a claim under Montana law seeking damages for emotional distress, medical monitoring and actual malice.

Schlumberger argued that this claim was preempted and moved to replace it with a Federal cause of action under the Price-Anderson Act, 42 U.S.C. § 2014(hh); it also moved for summary judgment on the Price-Anderson claim. The district court granted both motions and the Appeals Court affirmed the decision.

A "nuclear incident" is defined in the Act as “any occurrence . . . causing . . . bodily injury, sickness, disease, or death, or loss of or damage to property, or loss of use of property, arising out of or resulting from the radioactive, toxic, explosive, or other hazardous properties of source, special nuclear, or byproduct material.” Exposure to radioactive materials is compensable only if it causes one of the harms on the list. Plaintiffs claim that they suffered a listed harm -- namely bodily injury.

The Ninth Circuit says, "The Act [Price-Anderson] was designed to safeguard the nuclear industry from expansive liability under state law. . . plaintiffs’ interpretation would permit an end run." On the critical question of "bodily injury," the Appeals Court says, "
not every alteration of the body is an injury. Thinking causes synapses to fire and the brain to experience tiny electric shocks; fear stimulates the production of chemicals associated with the fight-or-flight response. All life is change, but all change is not injurious. Adopting plaintiffs’ interpretation of bodily injury would render the term surplusage, as every exposure to radiation would perforce cause injury."

The Appeals Court continues saying, "X-ray technicians, for example, are routinely exposed to more radiation than the public dose limit allows. Compare 10 C.F.R. § 20.1201(a)(1)(i) (limiting occupational exposure to 5 rem per year) with 10 C.F.R. § 20.1301(a)(1) (limiting exposure for members of the public to 0.1 rem per year). This reading would make exceeding the federal dose limit a strict liability offense, with damages determined by the extent of emotional distress. The Act would cease to be a liability limit and become an unlocked cash register."

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United States v. Manning (WA Dept. of Ecology)

May 21: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 06-35613, 06-35664, 06-35765. The case involves the Hanford Nuclear Reservation (Hanford) in Washington State -- one of the largest sites in the country for the treatment, storage and disposal of radioactive and non-radioactive hazardous waste; currently storing over 53 million gallons of mixed radioactive and nonradioactive hazardous waste. During World War II, the United States government constructed Hanford to manufacture plutonium for military purposes.

Over the decades, the United States Department of Energy (DOE) has disposed of approximately 450 billion gallons of contaminated water and liquid mixed waste on the site. At least one million gallons of high-level mixed radioactive and non-radioactive hazardous waste have leaked into the environment and approximately 170 miles of groundwater beneath Hanford are contaminated. In addition, tens of millions of gallons of waste are stored at Hanford in tanks that were constructed in the 1940s and meant to last only twenty years. As of 2004, there was a backlog of over 22,000 cubic meters of low-level mixed waste and transuranic mixed waste awaiting treatment and disposal.

In 1989, Washington’s Department of Ecology (Ecology), the DOE, and U.S. EPA entered into the Hanford Federal Facility Agreement and Consent Order, also known as the Tri-Party Agreement, to bring Hanford into compliance with federal
and state environmental laws. However, according to Ecology, since signing the agreement, the DOE and its contractors have been cited numerous times for violations of federal and state hazardous and mixed waste laws and requirements. The present appeal arises out of an effort by Washington voters “to prevent the addition of new radioactive and hazardous waste to the Hanford nuclear reservation until the cleanup of existing contamination is complete.”

The Ninth Circuit said, "Although the desire to take action against further environmental contamination and to protect the health and welfare of the community is understandable, we conclude that the statute enacted through the passage of Initiative 297 (I-297), the Cleanup Priority Act (CPA), is preempted by federal law. This result is dictated by a plain reading of the Washington statute, as interpreted by the Washington Supreme Court, as well as longstanding principles of federal preemption."

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Commonwealth of Massachusetts v. U.S. NRC

Apr 8: In the U.S. Court of Appeals, First Circuit, Case Nos. 07-1482, 07-1483. In the case the Commonwealth of Massachusetts wants to make sure that the U.S. Nuclear Regulatory Commission (NRC) will consider the Commonwealth's safety concerns about treatment of spent fuel rods before the NRC decides whether to renew the operating licenses of two nuclear energy plants -- the Pilgrim plant in Plymouth, MA; and the Vermont Yankee plant in Vernon, VT, which is within ten miles of the Massachusetts border. The licenses were originally issued in 1972 and will expire in 2012; the re-licensing proceedings have been initiated and are ongoing.

Massachusetts indicates that old assumptions about safe storage of spent fuel rods -- on which the NRC has relied since at
least the early 1970s -- no longer hold. They claim that more recent studies and changed circumstances indicate an increased risk that the plants' method of storing spent fuel rods will lead to an environmental catastrophe. Massachusetts also raises its concern that the plants' method of storing spent fuel leaves the plants vulnerable to terrorist attack.

Both sides agree that the safety issues raised are deserving of careful consideration. Both sides also agree that the Massachusetts is by law permitted to raise its various concerns by "some path" and to obtain judicial review of any NRC decision that adversely affects its interests in this matter. The question argued in this case is whether Massachusetts has, "from the regulatory maze, chosen the correct path for doing so." Massachusetts insists it has chosen the appropriate path, indeed, the only one available to it -- i.e. participating directly in the re-licensing proceedings as a party.

The NRC says the Commonwealth has chosen the "wrong path, indeed, one precluded by its regulations." The Agency also says that another option is available, is the proper path to be followed, and will adequately protect the state's interests.
According to the NRC, the Commonwealth must abandon its attempt to attain formal "party" status in the licensing proceedings and instead seek to participate in those proceedings as an "interested governmental entity."

The First Circuit rules that Massachusetts "has chosen the wrong path in seeking to raise the safety issues as a party in the licensing proceedings and deny its petition. We also bind the NRC to its litigation position. . . this leaves the Commonwealth free to follow the NRC's preferred path if it so chooses. To the extent the Commonwealth seeks an order from this court interfering with the NRC's ongoing re-licensing proceedings by imposing decision-making timetables on the agency, we issue a very brief stay but otherwise decline to issue such relief."

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