ML13303A264
| ML13303A264 | |
| Person / Time | |
|---|---|
| Site: | San Onofre  |
| Issue date: | 06/19/1981 |
| From: | Vogler B NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, NUDOCS 8106230096 | |
| Download: ML13303A264 (7) | |
Text
6/19/81 a
UNITED STATES OF AMERICA J
NUCLEAR REGULATORY COMMISSION 5e L I D BEFORE THE ATOMIC SAFETY AND LICENSING BOARD AM 2 2 198 1 In the Matter of
)
SOUTHERN CALIFORNIA EDISON COMPANY, )Docket Nos. 50-361 OL
)
50-362 OL (San Onofre Nuclear Generating
)
Station, Units 2 and 3)
)
NRC STAFF COMMENTS ON RES JUDICATA AND COLLATERAL ESTOPPEL On May 28, 1981, the Licensing Board in its "Revised Prehearing Conference Order" requested the parties to, inter alia, submit comments on the application on the doctrines of res judicata and collateral estoppel to this proceeding. In addition, the Staff was requested to furnish citations to pertinent AEC-NRC decisions concerning the above doctrines.
Specifically, the Licensing Board directed the parties to focus their comments on four aspects of the doctrines.
For convenience and clarity, Staff's comments follow each specific request.
(1) Are identity of parties, or issues, or both required before a foreclosure rule (however labeled) applies?
Under the doctrine of res judicata, a judgment on the merits in a prior suit bars a second suit involving the same parties or their privies based on the same cause of action. Under the doctrine of collateral estoppel, the second action is upon a different cause of action and the judgment in the prior suit precludes relitigation of issues actually litigated or otherwise disposed of and necessary to the outcome of the first 5
3i O23OO'cir
-2 action. In addition, before the doctrine of collateral estoppel can be applied four elements must be present. The four elements are:
- 1. The issue sought to be precluded is the same as that involved in the prior action.
- 2. The issue was actually disposed of in the proceeding.
- 3. The issue was determined by a valid and final judgment.
- 4. The determination of the issue was essential to the prior judgment.-/
In commenting on res judicata and collateral estoppel in the Alabama Power Company matter, the Appeal Board noted that the doctrines precluded a participant in the litigation of an issue decided in the construction permit proceeding, from raising the identical issue in an operating license proceeding involving the same reactor. (7 AEC at 212, 216.)
The Appeal Board also noted that while the principles of res judicata and collateral estoppel are applicable to NRC licensing proceedings, they should be applied with a sensitive regard for supported allegations for changed circumstances, new evidence or the existence of a special public interest factor applicable to a particular case. The Appeal Board also said that this does not mean that a petitioner has a blanket invitation to relitigate issues once decided or to raise new issues (Id. at 216).
1/ 1B, Moore, Federal Practice, 0.405[1] 2d ed. (1974), See, Alabama Power Company (Farley Units 1 and 2), ALAB-112, 7 AEC 210 (1974),
remanded on other grounds CLI-74-12, 7 AEC 203 (1974); Houston Lighting and Power Company, et al. (South Texas Project, Units 1 and 2), LBP-79-27, 10 NRC 563 (1979) aff'd ALAB-575, 11 NRC 14 (1980).
-3 In view of the above, the Staff is of the view that because of the admission of Intervenor, Friends of the Earth, since the construction pemit proceeding, the doctrine of res judicata, which requires identity of parties or their privies, may not apply. However, the principles of collateral estoppel are clearly applicable.
(2) Must the earlier proceedings have made an explicit finding on the question -- e.g., whether the Christianitos is a capable fault?
No. An explicit finding on an issue is not required. It is sufficient if the presiding Licensing Board made an implicit finding based on a review of the evidence submitted at the hearing and such evidence was subject to cross-examination, comment or review by the parties to the proceeding.
(3) If not, what is required for foreclosure -- that an implicit finding was.made; that the earlier board somehow relied on the same or similar evidence; that the evidence was presented to the earlier board (whatever the board may have done with it); or that the evidence was merely available, but never introduced?
See Staff's response under issue number 2 above.
As an example of the application of the principle of collateral estoppel, the Staff makes reference to the explicit Licensing Board finding regarding the geological model applicable to the siting of San Onofre at the construction permit stage, finding 61. Specifically, the Licensing Board found that the appropriate model is that set forth in the Staff's Safety Evaluation Report and repeated in summary fashion in Licensing Board finding 59. LBP-73-36, 6 AEC 929, 942-943 (1973).
-4 Implicit in the above finding is acceptance of the conclusion reached at that time by the U.S. Geological Survey that the offshore zone of deformation (OZD) is the controlling geologic structure and that the Christianitos fault is of lesser significance (see CP SER (Staff Exhibit No. 1) at C-7), and, based on evidence then available, is inactive (Id.
at 16).
From these explicit and implicit findings, the Staff concludes that it would be impermissible at the operating license stages to relitigate the evidence then relied upon regarding inactivity of the Christianitos fault and the basic characterization of the OZD as an "extensive linear zone of deformation, at least 240 km long, extending from the Santa Monica Mountains to at least Baja California.
(LBP-73-36, 6 AEC at 942). Consideration of these matters at this time, therefore, is foreclosed except to the extent that there is new information that leads one to believe that the "situation is vitally altered.
See Commissioner v. Sunner, 331 U.S. 591, 597 (1948) cited in Alabama Power Company, supra at 213; also, Alabama Power Company, supra at 216.
(4) Which party has the burden of proof on a claim of foreclosure, bearing in mind that this may involve repeated searches of the record of the CP proceeding.
10 C.F.R. § 2.732 of the Commissions Rules of Practice provides:
"Unless otherwise ordered by the presiding officer, the applicant or the proponent of an order has the burden of proof."
-5 The pertinent AEC-NRC decisions bearing directly on the above issues are:
- 1. Alabama Power Company (Joseph M. Farley Nuclear Plant, Units 1 and 2), ALAB-182, 7 AEC 210 (1974), remanded on other grounds, CLI 74-12, 7 AEC 203 (1974).
- 2. Houston Lighting and Power Company, et al. (South Texas Project, Units 1 and 2), LBP-79-27, 10 NRC 563 (1979), aff'd., ALAB-575, 11 NRC 14 (1980).
- 3. The Cleveland Electric Illuminating Company,, et al. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-378, 5 NRC 557 (1977).
In addition, the following AEC-NRC cases also have discussions on res judicata/collateral estoppel:
- 4. Consolidated Edison Company of New York, Inc. (Indian Point Station, Unit No. 2), ALAB-399, 5 NRC 1156 (1977).
- 5. Public Service Company of New Hampshire, et al. (Seabrook Station, Units 1 and 2), ALAB-349, 4 NRC 235, 246-247, vacated on other grounds, CLI-76-17, 4 NRC 451 (1976).
- 6. Public Service Company of New Hampshire, et al. (Seabrook Station, Units 1 and 2), CLI-78-1, 7 NRC 1, 23-29 (1978) aff'd. generally, New England Coalition on Nuclear Pollution v. NRC, 582 F.2d 87 (1st Cir. 1978).
Respectfully submitted,
" enjamnH Vogler Deputy Antitrust Counsel Dated at Bethesda, Maryland this 19th day of June, 1981
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of SOUTHERN CALIFORNIA EDISON COMPANY,
) Docket Nos. 50-351 OL ET AL.
)
50-362 OL (San Onofre Nuclear Generating Station, Units 2 and 3)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF COMMENTS ON RES JUDICATA AND COLLATERAL ESTOPPEL" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 19th day of June, 1981.
- James L. Kelley, Esq., Chairman
- David R. Pigott, Esq.
Administrative Judge Samuel B. Casey, Esq.
Atomic Safety and Licensing Board John A. Mendez, Esq.
U.S. Nuclear Regulatory Commission Edward B. Rogin, Esq.
Washington, D.C.
20555 Of Orrick, Herrington & Sutcliffe A Professional Corporation Dr. Cadet H. Hand, Jr.,
600 Montgomery Street Administrative Judge San Francisco, California 94111 c/o Bodega Marine Laboratory University of California Alan R. Watts, Esq.
P. 0. Box 247 Daniel K. Spradlin Bodega Bay, California 94923 Rourke & Woodruff 10555 North Main Street Mrs. Elizabeth B. Johnson, Suite 1020 Administrative Judge Santa Ana, California 92701 Oak Ridge National Laboratory P. 0. Box X, Building 3500
- Richard J. Wharton, Esq.
Oak Ridge, Tennessee 37830 University of San Diego School of Law Alcala Park Janice E. Kerr, Esq.
San Diego, California 92110 J. Calvin Simpson, Esq.
Lawrence Q. Garcia, Esq.
Mrs. Lyn Harris Hicks California Public Utilities Commission GUARD 5066 State Building 3908 Calle Ariana San Francisco, California 94102 San Clemente, California 92672
4e e
-2
- Charles R. Kocher, Esq.
A. S. Carstens James A. Beoletto, Esq.
2071 Caminito Circulo Norte Southern California Edison Company Mt. La Jolla, California 92037 2244 Walnut Grove Avenue Rosemead, California 91770
- Atomic Safety and Licensing Board Panel David W. Gilman U.S. Nuclear Regulatory Commission Robert G. Lacy Washington, D.C.
20555 San Diego Gas & Electric Company P. 0. Box 1831
- Atomic Safety and Licensing Appeal San Diego, California 92112 Board Panel U.S. Nuclear Regulatory Commission Phyllis M. Gallagher, Esq.
Washington, D.C. 20555 1695 West Crescent Avenue Suite 222
- Secretary Anaheim, California 92701 U.S. Nuclear Regulatory Commission ATTN:
Chief, Docketing & Service Charles E. McClung, Jr., Esq.
Branch Fleming, Anderson, McClung & Finch Washington, D.C. 20555 23521 Paseo De Valencia Suite 308A Laguna Hills, California 92653 Lawrence J. Chandler Deputy Assistant Chief Hearing Counsel