ML19211C660
| ML19211C660 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak, South Texas  |
| Issue date: | 01/07/1980 |
| From: | Chanania F, Hodgdon A NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8001140119 | |
| Download: ML19211C660 (41) | |
Text
s UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
)
)
HOUSTON LIGHTING & POWER COMPANY
)
NRC Docket Nos. 50-498A PUBLIC SERVICE BOARD OF SAN ANTONIO
)
50-499A CITY OF AUSTIN
)
CENTRAL POWER AND LIGHT COMPANY
)
(South Texas Project. Unit
)
Nos. I and 2)
)
TEXAS UTILITIES GENERATING NRC Docket Nos. 50-445A COMPANY, et al.
)
50-446A (Comanche Peak Steam Electric
)
Station, Units 1 and 2)
)
NRC STAFF REPLY TO TUGCO'S RESPONSE TO AND JOINDER IN HOUSTON LIGHTING AND POWER COMPANY'S REQUEST FOR DIRECTED CERTIFICATION AND REVIEW 0F RULINGS ON COLLATERAL ESTOPPEL ANJ,
SUMMARY
DECISION Joseph Rutberg Fredric D. Chanania Chief. Counsel and Director, Counsel for NRC Staff Antitrust Division Office of the Executive Legal Director Ann Hodgdon Counsel for NRC Staff Roy P. Lessy, Jr.
Counsel for NRC Staff Michael B. Blume Counsel for NRC Staff January 7,1980 1743 107 1"
(
8001 1
i TABLE OF CONTENTS Page TABLE OF AUTHORITIES CITED....................
11 1.
INTRODUCTION.........................
1 II.
CERTIFICATION OF QUESTIONS RAISED IN THE TUGC0 RESPONSE IS NOT WARRANTED......'.........
3 A.
Standards for Certification 4
B.
The TUGC0 Response Does Not Meet Standards for Directed Certification...........
5 III. THE LICENSING BOARD PROPERLY REFUSED TO APPLY RES JUDICATA.........
7 A.
Legal Standards for Application of Res Judicata 7
B.
The "Same Cause of Action" Requirement 10 Is Not Satisfied......
C.
Res Judicata Should Not Be Applied For Other Reasons....
14 1.
Case Law With Respect to the Practicalities Involved 14 2.
Primary Jurisdiction Is Not Involved.........
16 3.
TUGCO's Construction of S 105c Is Not Appropriate..................
17 D.
TUGCO's Other Assertions Do Not Provide Grounds For Reversal 18 1.
The Fact-Law Dichotomy.
19 2.
TUGCO's Public Policy Arguments 24 IV. THE LICENSING BOARD PROPERLY REFUSED TO GRANT
SUMMARY
DISPOSITION AGAll4ST C&SW....
25 V.
CONCLUSION..........................
30 1743 108
TABLE OF AUTHORITIES CITED I.
COURT CASES:
PAGE American Heritage Life Ins. Co. v. Heritage Life Ins. Co.,
494 F.2d 3 (5th Ci r. 1974 )...................
14 Brandenfels v. Day, 316 F.2d 375 (D.C. Cir. 1963) 14 California v. FPC, 369 U.S. 482 (1962) 17 Carnation v. Pacific Westbound Conference, 383 U.S. 213 (1966) 16 Cartier v. Secretary of State, 506 F.2d 191 (D.C. Cir.1974) 14 Cities of Statesville v. AEC, 441 F.2d 962 (D.C. Cir.1969) 22 Clark v. Watchie, 513 F.2d 994 (9th Cir. 1975) 10 Commissioner v. Sunnen, 333 U.S. 591 (1948) 8,25 Cromwell v. County of Sac, 94 U.S. 351 (1876) 8 Expert Electric, Inc. v. Levine, 554 F.2d 1227 (2d Cir.1977 )..................
10 FTC v. Sperry & Hutchinson Co.,
405 U.S. 233 (1972) 12 First National Bank of Arizona v. Cities Service Company, 391 U.S. 253 (1968) 28.29 Howard v. Green, 555 F.2d 178 (8th Ci r.1977)..................
10 Jason v. Summerfield 214 F.2d 273 (D.C. Cir.1954), cert. denied, 348 U.S.
84 0 (19 54 )...........................
14 Lawlor v. National Screen Service Corp.,
349 U.S. 322 (1956) 8 (ii) 1743 109
PAGE Otter Tail Power Co. v. United States, 17 p
410 U. S. 3 6 6 (197 3 )......................
Pacific Seafarers, Inc. v. Pacific Far East Line, Inc.,
404 F.2d 804 (D.C. Cir.1968), cert, denied 21 393 U.S.1093 (1969)
Pan American World Airways v. United States, 17 371 U. S. 2 9 6 (19 6 3 ).......................
Parklane Hosiery Co., Inc. v. Shore, 8
439 U.S. 322, 99 S. Ct. 645 (1979)
Poller v. Columbia Broadcasting System, Inc.,
28 368 U. S. 4 64 (196 2 ).......................
Ricci v. Chicago Mercantile Exchange, 16 4 09 U. S. 289 (197 3).......................
Stevenson v. International Paper Co.,
10 516 F.2d 103 (5th Cir.1975)
Tipler v. E.I. duPont de Nemours & Co.,
14 443 F.2d T25 (6th Cir.1971)
Udall v. Tallman, 18 3 8 0 U. S. 1 (19 6 5 )........................
United Shoe Machinery Corporation v. United States, 2 58 U. S. t,51 (192 2 )......................
19,20,21 United States v. Aluminum Company of America, 10 148 F.2d 416 (2d Cir. 1945)...................
United States v. Creek Nation, 10 476 F.2d 1290 (Ct. C1.1973)
United States v. Smith, 482 F.2d 1120 (8th Cir.1973)..................
15 United States v. Utah Construction and Mining Company, 7
384 U. S. 394 (196 6 ).......................
West Texas Utilities Co. v. Texas Electric Service Co.,
470 F.Supp. 798 (N.D. Tex. F979), appeal _ pending 2,20,21,22,23 Young & Co. v. Shea, 397 F.2d 185 (5th Cir.1968)...................
14 (iii) 1743 110 we
4 4
II. NRC CASES:
PAGE Alabama Power Co. (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). 5,7,8,9,10,14,22,24,25 Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant Units 1 and 2), ALAB-443, 6 NRC 741 (1977) 26,27,29 Consumers Power Co. (Midland Plant, Units 1 and 2),
ALAB-452, 6 NRC 892 (1977 )....................
5,10,12,23 Duke Power Company (Perkins Nuclear Station, Units 1, 2 and 3)
ALAB-4 33, 6 NRC 4 69 (1977 ).........................
4 Florida Power & Light Co. (St. Lucie Plant, Unit No. 2),
.......................13 ALAB-420, 6 NRC 8 (1977).........................
13 Houston Lighting & Power Co. (South Texas Project, Unit Nos.1 and 2), CLI-77-13, 5 NRC 1303 (1977) 7,12,13,14,18,22,24 Long Island Lighting Co. (Jamesport Nuclear Power Station, Units 1 and 2), ALAB-353, 4 NRC 381 (1976).................
5 Louisiana Power & Light Co. (Waterford Steam Electric Generating Station, Unit 3), ALAB-220, 8 AEC 93 (1974).........
4,30 Pacific Gas and Electric Company (Stanislaus Nuclear Project, Unit No.1), ALAB-400, 5 NRC 1175 (1977) 4 LBP-77-45, 6 NRC 159 (1977)
.......................27 Power Authority of the State of New York (Greene County Nuclear Power Plant) ALAB-439, 6 NRC 640 (1977)..............
5 LBP-79-8, 9 NRC 339 (1979)........................
27 Public Service Company of Indiana, Inc. (Marble Hill Nuclear Generating Stations, Units 1 and 2), ALAB-405, 5 NRC 1190 (1977)...................................
4 ALAB-393, 5 NRC 767 (1977) 5 Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CLI-78-1, 7 NRC 1 (1978)................
7,14 ALAB-349, 4 NRC 235 (1976)........................
14 ALAB-271, 1 NRC 4 78 (197 5 )......................... 4 Fuget Sound Power & Light Co., et al. (Skagit Nuclear Power Project, Units 1 and 2), ALAB-572 (Nov. 20,1979) 4 1743 111 (iv)
Toledo Edison Co., et al. (Davis-Besse Nuclear Power Station.
Units 1, 2 and 3),
ALAB-560, NRC (Se t. 6,1979).............
5,12,19,20,23 ALAB-378, 5 NRC 537T1977 6,1 5,1 9 ALAB-314, 3 NRC 98 (1976) 5 III. STATUTES:
Atomic Energy Act of 1954, as amended:
5105a, 42 U.S.C. 52135a 11,12,18 5105c, 42 U.S.C. 52135c 10,11,12,13,17,18,21 5105c(5), 42 U.S.C. 52135c(5) 1 0,1 2 5186, 42 U.S.C. 52236 22 Federal Trade Commission Act:
55,15 U.S.C. 545 11,12,16 Sherman Act:
51, 15 U. S.C. 51...................
10,11,15,16,20,21,22,23 52,15U.S.C.52..........................
11,16,23 IV. OTHER AUTHORITIES:
Rule 56, Federal Rules of Civil Procedure 28,29 NRC Rules of Practice:
10 CFR 52.714(a) 4 10 CFR 52.718(1) 3,4 10 CFR 52.730(f) 3,4 10 CFR 52.749 3,26,28,29 10 CFR 52.749(a) 26,27 10 CFR 52.749(b) 27 10 CFR 52.749(d) 26 Transcript of Proceedings, 288, 299 (June 1,1979)
(in this combined docket).........................
6 1743 112 (v)
l 1B Moore's Federal Practice (2d Ed.1974),
Pa ra 0. 4 0 5 [1 ]........................
25 Para. 0.4 05[11 ]-[12]..................... 10 Pa ra. 0. 410 [ 1 ]........................
14 Pa ra. 0. 411 [1 ]........................ 15 Pa ra. 0. 41 's [6 ]........................
15 2 Davis, Administrative t aw Treatise, 619.06 (Supp.1970) 17 2 Davis, Administrative Law Treatise, 7:22 (2d ed. 1979) 18 K. Davis, Administrative Law Text, 363 (3r d ed.,1972) 14 H.R. REP. NO. 91-1470, 91st Cong.
2d Session (1970).....................
12,24 i
(vi) 1743 113
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAF QY AND LICENSING APPEAL BOARD In the Matter of HOUSTON LIGHTING & POWER COMPANY NRC Docket Nos.
50-498A PUBLIC SERVICE BOARD OF SAN ANTONIO 50-499A CITY OF AUSTIN CENTRAL POWER AND LIGHT COMPANY (South Texas Project, Unit Nos. I and 2)
TEXAS UTILITIES GENERATING
)
NRC Docket Nos.
50-445A COMPANY, et al.
)
50-446A (Comanche Peak Steam Electric
)
Station, Units 1 and 2)
)
NRC STAFF REPLY TO TUGCO'S RESPONSE TO AND JOINDER IN HOUSTON LIGHTING AND POWER COMPANY'S REQUEST FOR DIRECTED CERTIFICATION AND REVIEW 0F RULINGS ON COLLATERAL ESTOPPEL AND
SUMMARY
DECISION I.
INTRODUCTION The NRC Staff hereby replies to TUGCO'sE Response to and Joinder in Houston Lighting and Power Company's Request for Directed Certification and Review of Rulings on Collateral Estoppel and Summary Decision (hereinafter "TUGC0 Response"),datedDecember 12, 1979.
As admitted in TUGCO's letter of December 14,1979,E TUGCO's Response goes beyond merely joining in the petition of Houston Lighting and Power Company ("HL&P"),M which requested y
TUGC0 is the Texas Utilities Generating Company (hereinafter "TUGC0").
y The letter was sent to Alan S. Rosenthal, Esq., Chaiman of the Atomic Safety and Licensing Appeal Panel.
y The HL&P Petition was filed before the Atomic Safety and Licensing Appeal Board (" Appeal Board") on November 9,1979.
Pursuant to the Appeal Board's Order of November 13, 1979, the NRC Staff filed its response to the HL&P petition on December 14, 1979. On the previous day, the Staff was informed by the Appeal Board, in a telephone call, of the TUGC0 Response.
Contrary to the implication in TUGCO's December 14, 1979 letter, the Staff had no advance notice that TUGCO's answer would raise issues beyond those raised by HL&P.
1743 114
directed certification and reversal of an Order of the Atomic Safety and Licensing Board dated October 5,1979.M That Order denied both HL&P's and TUGCO's motions for sumary disposition. HL&P's petition raised only one issue--the Licensing Board's refusal to apply collateral estoppel against Central and South West Corporation ("CASW")E ased upon the decision of the b
District Court in West Texas Utilities.O The Staff reads TUGCO's Response as not only joining in that issueE ut as b
raising the following new issues:
1)
Was the Licensing Board correct in refusing to apply res judicata against C&SW in the South Texas and Comanche Peak proceedings presently at the NRC?U and 4j Hereinafter referred to as " Order."
y The Central and South West Corporation is a public utility holding company, having as its subsidiaries Central Power & Light Company, West Texas Utilities Company, Public Service Company of Oklahoma, and Southwestern Electric Power Company. All C&SW subsidiaries are inter-venors in the Comanche Peak proceeding before the NRC; Central Power
& Light alone is a co-applicant and co-licensee in the South Texas project and is, therefore, a party to the South Texas docket.
y West Texas Utilities Company and Central Power & Light Company v. Texas Electric Service Company and Houston Lighting & Power Company, 470 F.
Supp. 798 (N.D. Tex. Jan. 30,1979), appeal pending, Docket No. 79-2677.
7f The issue of whether directed certification is appropriate under these circumstances is inherent in this matter since TUGCO's response, in part,
~
joins in HL&P's request for directed certification.
8/
TUGC0 Response, at pp. 2,7, 10-12, 19-34.
1743 115
2)
Was the Licensing Board correct in refusing to dismiss C&SW from the Comanche Peak proceeding in light of the NRC's Rules of Prac-tice for summary disposition,10 CFR 6 2.7497U In light of these procedural circumstances, the Staff's overall position is comprised of both this Reply, which addresses only the two new issues raised by TUGC0 and noted above, and the Staff's earlier response of December 14, 1979, which addresses the issues of directed certification and the denial af collateral estoppel against C&SW.
II. CERTIFICATION OF OVESTIONS RAISED IN THE TUGC0 RESPONSE IS NOT WARRANTED It is the Staff's position that TUGCO's Response, which seeks directed certification and interlocutory review of the Licensing Board's Order denying summary disposition, should be denied.
As with the HL&P petition, the basis for the Staff's position fs that the rulings in the Licensing Board's Order do not present a situation in which the NRC Rules of Practice and NRC prece-dent indicate that directed certification is warranted. Moreover, a denial of summary disposition is a matter on which the Appeal Board has never, to the Staff's knowledge, granted interlocutory review by directed certification.
Under these circumstances, the Licensing Board was correct in declining to certify to the Appeal Board, under 10 CFR 66 2.718(1), 2.730(f), any issues decided in its Order of October 5,1979.N y
Id_. at pp. 2, 10, 12-18.
10/ Order, at p. 20.
j]}
jjf
A.
Standards for certification The general NRC rule is to prohibit interlocutory appeals, except for denials of intervention.
10 CFR 95 2.714a, 2.718(1), 2.730(f); Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-271,1 NRC 478, 482-83 (1975).E The denial of a summary disposition motion has been found to be particularly inappropriate for interlocutory review by certification.
Louisiana Power & Light Co.
(Waterford Steam Electric Generating Station, Unit 3),ALAB-220,8AEC93(1974). See also, Duke Power Co. (Perkins Nuclear Station, Units 1, 2 and 3), ALAB-433, 6 NRC 469 (1977) (dismissing a non-party's appeal from a Licensing Board denial of a motion to dismiss a construction permit proceeding); Pacific Gas and Electric Co. (Stanislaus Nuclear Project, Unit No.1), ALAB-400, 5 NRC 1175 (1977) (affirming a Licensing Board's deferral of action on applicant's motion for summary disposition.)
Under NRC decisions, certification will be granted:
(1) where the ruling below threatens the party adversely affected by it with "imediate and serious irreparable impact which, as a practical matter, could not be alleviated by later appeal,E (2) where the ruling below affects the basic structure of the proceeding "in a pervasive or unusual manner;"E or (3) where exceptional circumstances exist on questions of what or how evidence
_1_1/ See also, Pu,I Sound Power & Light Comoany, et al.
(Skagit Nuclear Power Project, Units 1 & 2), ALAB-572 (Nov. 20,1979).
g Public Service Company of Indiana, Inc.
(Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190,1192 (1977).
2 Ld-1743 117
will be admitted.14/ As will be discussed, the situation as presented in TUGCO's response is manifestly different from any of these situations.
B.
The TUGC0 Response Does Not Meet Standards for Directed Certification TUGC0 asserts, without elucidation, that certification is necessary because important legal and policy implications (comity) are presentE and because substantial delay and expense can be avoided by dismissing C&SW or barring C&SW's participation by res judicata.E As for the first assertion, the issue of applying res judicata in NRC proceedings is not novel, and does not present an important legal issue which cannot be adequately reviewed by way of appeal from an initial decision of the Licensing Board on the entire matter.E Second, as mentioned in the Staff's earlier response to HL&P's petition,E both the Staff and the Department of Justice have indicated that they may 14/ Power Authority of the State of New York (Greene County Nuclear Power Plant), ALAB-439, 6 NRC 640 (1977); Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAR-393, 5 NRC 767, 768 (1977); Long Island Lighting Co. (Jamesport Nuclear Power Sta-tion. Units 1 & 2), ALAB-353, 4 NRC 381 (1976); Toledo Edison Company (Davis-Besse Nuclear Power Station, Unit 1), ALAB-314, 3 NRC 98 (1976).
15/ TUGC0 Response, at p. 3.
16/
,I_d.
JJ7/ See, e.g., Alabama Power Co. (Joseph M. Farley Nuclene Plant, Units 1 and 2), CLI-74-12, 7 AEC 203 (1974), remanding on other grounds, ALAB-182, 7 AEC 210(1974); Toledo Edison Co., et al. (Davis-Besse Nuclear Power Station, Units 1, 2 & 3), ALAB-560, at pp. 209-12 (Slip opinion, Sept. 6,1979);
Consumers Power Co. (Midland Units 1 and 2), ALAB-452, 6 NRC 892 (1977).
18/ NRC Staff Response of December 14, 1979, to Petition of HL&P for Directed Certification, at pp. 6-8.
1743 118
. introduceevidencethatCASWpresentedintheDistrictCourt.E In addition, the issues in controversy adopted by the Licensing Board in both the South Texas and Comanche Peak proceedings clearly' contemplate evidentiary presenta-tions on Section 1 Sherman Act issues and policies.
As a result, the Staff regards the res judicata claims raised here as essentially evidentiary in impact, having little real effect on the basic structure of the proceedings.
On these matters of evidentiary rulings, the Appeal Board has been disinclined in the past to grant directed certification.E TUGC0 has failed to present any reason to depart from these past decisions denying certification.E As indicated above, directed certification is also sought of the Licensing Board's refusal to dismiss C&SW from Comanche Peak by summary disposition, 19/ See Transcript of Proceedings, at pp. 288, 299 (June 1, 1979) (in this combined docket); Order, at p.13.
_2_0/ -See note 14, supra.
0 g A reversal or modification of some or all of the District Court's find-ings in West Texas Utilities, which is presently on appeal to the Fifth Circuit Court of Appeals, would precipitate undue confusion and delay in the South Texas and Comanche Peak operating license antitrust proceedings if TUGCO's request for application of res judicata were granted. The Appeal Board, in the Toledo Edison Company disqualification matter, ALAB-378, 5 NRC 557 (1977), showed its concern for the problem of apply-ing collateral estoppel when a District Court's decision was on appeal by retaining jurisdiction over the matter.
In that case, the Appeal Board stated:
Because, however, we have been told that the district court's decision is now pending before the Court of Appeals for the Sixth Circuit on the City's appeal, we are retaining jurisdic-tion over the matter.
Should the Sixth Circuit revert.
vacate or significantly modify the District Court's rt...ng.
within 30 days, thereafter the City may file a motion with us requesting such relief as it may deem appropriate in light of that development.
1743 119 5 NRC at 560-61 (citations omitted). See also, 5 NRC at 684.
. pursuant to 10 CFR 6 2.749. Both proceedings, which have been consolidated for the purpose of discoverv, will ostensibly involve full presentations on all the issues in controversy.
Failure to grant sumary disposition against one intervenor in one proceeding does not rise to the level of imediate or serious irreparable impact on TUGCO. Whether the Licensing Board was correct in its ruling on summary disposition is a matter that can be dealt with in exceptions to the Licensing Board's ultimate decision. Accordingly, the Staff does not find the exceptional circumstances or imediate irreparable impact which would warrant certification.
III. THE LICENSING BOARD PROPERLY REFUSED TO APPLY RES JUDICATA A.
Leaal Standards for Application of Res Judicata The Commission has held res judicata applicable to NRC administrative pro-ceedings, accepting the Appeal Board's analysis of that issue in Alabama Power Company (Joseph M. Farley Nuclear Plant, Units 1 and 2).E In its decision in Alabama Power Company, the Appeal Board first noted the requisite elements for application of res judicata:
(1) a final adjudication of the merits of a particular cause of action by a tribunal of competent juris-diction; and (2) one of the parties, or its privy, to that adjudication
-22/ CLI-74-12, 7 AEC 203 (1974), remandino on other grounds, ALAB-182, 7 AEC 210 (1974); see also, United States v. Utah Construction and Mining Co., 384 U.S. 394, 421-22 (1966); Public Service Company of New Hampshire, et al. (Seabrook Station, Units 1 and 2), CLI-78-1, 7 NRC 2, 26-27 (1978); Houston Lighting & Power Company, et al.
(South Texas Project, Unit Nos. I and 2), CLI-77-13, 5 NRC 1303, 1321 (1977); Duke Power Company (William B. McGuire Nuclear Station, Units 1and2),LBP-77-20,5NRC680(1977).
1743 120
- subsequently seeks to advance or defeat the same cause of action in either the same suit or in a separate suit involving the parties to the first actionortheirprivies.E In discussing res judicata in Alabama Power Company, the Appeal Board addressed two aspects which are pertinent to the instant situation:
(1) the requirement that there be the same cause of action in light of different legal standards applicable to the two matters, and (2) competing policy factors which can outweigh considerations favoring application of res judicata:
And, in the res judicata sphere, the Supreme Court has relied upon "the general rule that res judicata is no defense where between the time of the first judgment and the second there has been an intervening decision or a change in the law creating an altered situation" as a basis for a refusal to bar a constitutional claim which could not have been raised in the first proceeding but, by reason of an intervening judicial decision, could have been raised at the time of the second proceeding. State Farm Mutual Auto. Ins, g.v. Duel,324U.S.154,162(1945).
Quite apart from the matter of changed factual or legal circum-stances, the courts have recognized that res judicata and colla-teral estoppel principles should not be invoked where there are competing public policy factors which outweigh those supporting the application of the doctrines.
Spilker v. Hankin, 188 F.2d 35 (D.C. Cir.1951) is an illustrative example. There, a lawyer asserted that a defense which had been interposed in a suit brought by him against a former client was barred by res judicata because it had been adjudicated in an earlier action. While agreeing that all of the elements of res judicata were present, the District of Columbia Circuit refused to apply the doctrine because of "the fiduciary relationship of attorney and client which existed between the parties.
In a very real sense attorneys are officers of the
,2_3)
ALAB-182, 7 AEC at 212; see also Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326 n.5 (1979); Lawlor v. National Screen Service Corp.,
349 U.S. 322, 326 (1955); Commissioner v. Sunnen, 333 U.S. 591, 597 (1948); Cromwell v. County of Sac, 94 U.S. 351, 352-53 (1876).
1743 121 courts in which they practice; and clients are wards of the court in regard to their relationship with their attorneys". 188 F.2d at 37-38. See also, Mercoid Corp. v. Mid-Continent Investment
.C_o., 320 U.S. 661 (1944).
I Needless to say, the exceptions to the application of res judicata and collateral estoppel which are found in the judicial setting are equally present where administrative adjudication is involved -
namely, changed factual or legal circumstances (Comissioner v.
Sunnen, supra) and overriding competing public policy considerations (Tipler v. E. I. duPont deNemours and Co., 443 F.2d 125,128 (6th Ci r. 1971)). On the latter score, Professor Davis has suggested a particular need for clothing an administrative agency with the discretion to decline to invoke these doctrines in the course of
" feeling its way into an undeveloped frontier of law and policy".
2 Davis, Administrative Law Treatise, p. 566.
Our conviction that res judicata and collateral estoppel should not be entirely ruled out of our licensing proceedings, but rather applied with a sensitive regard for any supported assertion of changed circumstances or the possible existence of some special public interest factor in the particular case, is not affected by the petitione:'s emphasis upon the fact that any person with the requisite interest may seek to intervene in an operating license proceeding. Suffice it to say that we do not regard the affording of an opportunity to intervene as a blanket invitation either to relitigate issues once decided or (where the basic elements cf res judicata are present) to raise new issues which both could and should have been presen g and resolved along with the issues previously adjudicated.
The Appeal Board, in Alabama Power Co., made it clear that invocation of res judicata, a judicially-created doctrine, should be determined by NRC boards on a case-by-case basis with due regard for differing legal standards and policy considerations. The Licensing Board's Order follows this methodology in declining to apply res judicata. To adopt the TUGC0 view would be to adopt a more rigid approach as to assessing the "same cause of action" 24/ ALAB-182, 7 AEC at 213-14, 215, 216.
4 1743 122
. requirement and would remove all policy and practical considerations relating to the nature of the NRC's antitrust responsibilities and of the two proceed-ings involved here.
B.
The "Same Cause of Action" Requirement Is Not Satisfied The absence of the same cause of action precludes application of res judicata under Alabama Power Company. The Staff's view is that an NRC anti-trust proceeding under Section 105c of the Atomic Energy Act of 1954, as amended,b oes not constitute the "same cause of action" as litigation d
under Section 1 of the Sherman Act for two principal reasons.
First, the jurisdictional parameters and standards of proof differ significantly.
Second, the legislative history of each Act indicates differing policies:
Sherman Act claims arise under a statute designed to protect competition,E while Section 105c proceedings arise under a statute designed, in part, to prevent the use of nuclear power to create or maintain an anti-competitive situation.E
,2_5/ 42 U.S.C. 9 2135c.
26/ See, e.g., United States v. Aluminum Co. of America,148 F.2d 416 (2nd Ci r. 1945 ).
,2_7/ See, e.g., Consumers Power Company (Midland Units 1 and 2), ALAB-452, 6 NRC 892,1085 (1977).
In general, see Howard v. Green, 555 F.2d 178 (8th Cir.1977); Expert Electric, Inc. v. Levine, 554 F.2d 1227 (2d Cir.
1977); Stevenson v. International Paper Co., 516 F.2d 103 (5th Cir.1973);
Clark v. Watchie, 513 F.2d 994 (9th Cir.1975); United States v. Creek Nation, 476 F.2d 1290 (Ct. C1.1973); IB Moore's Federal Practice, Para. 0.405 [11]-[12], at 783-791 (2d ed.1974).
1743 123
. The background of the District Court 11tigation provides an appropriate starting point for analysis of the "same cause of action" issue. The District Court had before it one cause of action centered around issues of alleged refusals to deal and a group boycott flowing from the intrastate-only poli-cies of the utilities which comprise the Electric Reliability Council of Texas ("ERCOT") and the Texas Interconnected Systems (" TIS"). The allega-tions relating to the intrastate-only policy arose under Section 1 of the Sherman Act, and the District Court, to find liability, had to determine that there was a violation of Section 1.
The District Court did not have before it any issues concerning monopolization under Section 2 of the Sherman Act or unfair methods of competition under Section 5 of the Federal Trade Commission Act ("FTC Act"). E The first point of contrast between the instant NRC proceedings and the District Court litigation is that the Commission in fulfilling its antitrust responsibilities under Section 105c of the Atomic Energy Act must detennine whether there is a " situation inconsistent" with (not a " violation" of) the antitrust laws specified in Section 105a (including Sections 1 and 2 of the
-28/ The District Court commented on the lone issue before it:
"This case, as it has been presented over the past two and one-half years, really boils down to a single, preliminary question of law, that is, whether or not it is a violation of 61 of the Sherman Act for an electric utility to... decide to confine its facilities and operations solely within a single state." 470 F. Supp. at 814.
The District Court also refused to let C&SW amend its complaint to add a monopolization cause of action under 9 2 of the Sherman Act.
See Response of Central Power and Light Company and Central and South West Corporation et al. to Petition of Houston Lighting & Power Company for Directed Certification, at p. 16 n.* (filed in this combined docket on December 14,1979).
1743 124 Shennan Act, and Section 5 of the Federal Trade Commission Act) or the policies.M arlying those antitrust laws.E The difference in the legal standard applicable in a Section 105c proceeding (" situation inconsistent")
was underscored by the Joint Committee on Atomic Energy in its report accompanying the 1970 amendments to that section:
The concept of certainty of contravention of the antitrust laws or the policies clearly underlying these laws is not intended to be implicit in this standard; nor is mere possibility of incon-sistency. It is intended that the finding be based on reasonable probability of contravention of the antitrust laws or the policies clearly underlying these laws.
It is intended that, in effect, the Commission will conclude whether, in its judgment, it is reasonably probable that the activities under the license would, when the license is issued or thereafter, be inconsistent with any of the antitrust laws or the policies clearly underlying these laws.#'
(Emphasis added.)
The second difference is that the District Court is without jurisdiction to consider unfair methods of competition under the FTC Act (one of the anti-trust laws specified in Section 105a), nor can it order relief from a defendant's actions which are inconsistent with the policies underlying those laws.
Indeed, aside from the NRC responsibility to consider the FTC Act, it has been held that only the Federal Trade Commission is empowered to find a practice to be an unfair method of competition under Section 5 of the FTC Act. b g 42 U.S.C. 96 2135a, 2135c(5); Houston Lighting and Power Co. et al.
(South Texas Project, Units No. I and 2), CLI-77-13, 5 NRC 1303 (1977);
Toledo Edison Company, et al. (Davis-Besse Nuclear Power Station, Units 1, 2 & 3), ALAB-560, at p. 8 (Slip opinion, Sept. 6, 1979); Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-452, 6 NRC 892 (1977).
3_0/
H. R. REP. NO. 91-1470, 91st Cong., 2d Sess., at 14 (1970), reprinted in, 3 U.S. Code Congressional and Administrative News, 91st Cong., 2d Sess., at 4994 (1970). This was cited by the Licensing Board in its Order, at p. 9.
31/ FTC v. Sperry & Hutchinson Company, 405 U.S. 233, 249 (1972).
1743 125 1
Similarly, only the NRC (and not federal district courts) can make initial findings under section 105c of the Atomic Energy Act as to a " situation in-consistent" with the antitrust laws and their policies. The Commission, in considering the policies behind the NRC's antitrust responsibilities, has described the unique role of the NRC:
But other policies are also reflected in Section 105c, viz, that a government-developed, monopoly-like nuclear power electricity generation not be utilized in ways which contravene the policies contained in the various antitrust acts. Section 105c is a mechanism to allow the smaller utilities, municipals, and cooperatives access to the licensing process to pursue their interests in the event that ormaintainananticompetitivemarketposition.32}icensetocreate larger utility applicants might use a governmen In its South Texas decision, the Commission, after stating that the NRC's antitrust expertise is not unique and that the agency was not given police powers independent of its licensing process, commented on the special anti-trust role of the NRC:
Through the licensing process, we can effectuate the special concern of Congress that anticompetitive influences be identified and corrected in their incipiency. No nuclear power can be gene '
rated without an NRC license and the licensing process thereby allcws us to act in a unique way to fashion remedies, if we find that an applicant's plans may be i nsistent with the antitrust laws or their underlying policies.
Given the differing standards of proof, the differing jurisdictional scope, and the particular nature of the NRC's antitrust responsibilities, the 3_2/ Florida Power & Light Company (St. Lucie Plant, Unit No. 2), CLI-78-12, 7 NRC 939, 946 (1978); see also, Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Unit ifo"' l), ALAB-420, 6 NRC 8, 22-23 (1977).
o 33/ Houston Lighting & Power Company, et al. (South Texas Project, Units Nos. I and 2), CLI-77-13, 5 NRC 1303, 1316 (1977).
1743 126
following distinction drawn by Professor Davis should be heeded here:
What appears to be an identity of issues may not be when the two cases arise under different statutes; even if the two atutes appear identical, the policies under them may differ.
Accordingly, under Alabama Power Company, res judicata is inappropriate since the prerequisite of the same cause of action is not present here.
C.
Res Judicata Should Not Be Applied For Other Reasons 1.
Case Law With Respect to the Practicalities Involved NRC decisions, dealing with the application of res judicata,E/ ave followed h
the Alabama Power Company approach and considered the NRC's statutory role, public interest and practical factors as well as changes in legal or factual circumstances. This approach is consonant with decisions of the federal EI l
courts. Courts have held, for example, that differing standards of proof and differing kinds of relief make res judicata less appropriate.
Res 34/
K. Davis, Administrative Law Text (3rd ed., 1972), p. 363. See, e.g.,
Tipler v. E. I. DuPont de Nemours & Co. Inc., 443 F.2d 125 (Ti't6 Cir.
1971); Brandenfels v. Day, 316 F.2d 375 (D.C. Cir.1963); Jason v.
Summerfield, 214 F.2d 273 (D.C. Cir.1954), Fat 1153 n.10,1153-63.
cert, denied, 348 U.S. 840 (1954); IB Moore's Federal Practice, 1 0.410 This, in part, may result from the bifurcation of responsibilities between courts and administrative agencies. Cartier v. Secretary of State, 506 F.2d 191,197 (D.C. Cir.1974).
35/ Public Service Co. of New Hampshire, et al. (Seabrook Station, Units 1 and 2), CLI-78-1, 7 NRC 1, 27 (1978), citing Houston Lighting and Power Co. et al. (South Texas Project, Units 1 and 2), CLI-77-13, 5 NRC 1303, Units 1 and 2), ALAB-349, 4 NRC 235 (1976)pshire (Seabrook Station, 1321 (1977); Public Service Co. of New Ham
_3_6/ Young & Co. v. Shea, 397 F.2d 185 (5th Cir.1968).
6 37/ American Heritage Life Ins. Co. v. Heritage Life Ins. Co., 494 F.2d 3 (5th Cir.1974).
1743 127
judicata has been thought to have more limited applicability in administra-tive proceedings than in judicial proceedings, e.g., United States v. Smith, 482 F.2d 1120,1123 (8th Cir.1973).
In addition, another traditional prerequisite for res judicata is that the same parties or their privies must appear in both actions.E/ While the Staff reads Toledo Edison Co. to say that the absence of the NRC Staff or the Department of Justice from the earlier litigation would not have pre-vented invocation of res judicata if the same cause of action had been involved,El the lack of identity of parties here, at least, raises serious practical concerns.
The application of res judicata against C&SW would create undue delay and confusion in both the South Texas and Comanche Peak proceedings. There would be little or no effect either on the evidence expected to be presented or on potential relief which might be ordered.S/ Further, if C&SW is pre-cluded from presenting certain evidence, the Licensing Board will have to 38/ 18 Moore's Federal Practice, 10.411[1], [6], at 1251-59,1551-77 (2d ed. 1974).
39/ Toledo Edison Co., et al. (Davis-Besse Nuclear Power Station, Units 1, 2 and 3), ALAB-378, 5 NRC 557, 563 (1977).
4_0/ See notes 18 and 19, supra.
Since other parties have indicated they will present evidence on issues arising under 61 of the the Sheman Act, as well as on the other issues in controversy, the license conditions which may be ordered to remedy the " situation inconsistent" with the antitrust laws or their policies, if found, should not be expected to vary significantly whether or not res judicata is invoked against C&SW alone.
1743 128
... make lengthy determinations as to:
(1) what evidence was presented in the District Court by C&SW, (2) whether the evidence now sought to be introduced by C&SW is the same as that in the District Court actio, and (3) whether that evidence otherwise pertains to CSSW's claims based on i 2 Sherman Act or i 5 FTC Act.
In addition, any precludad " facts" (relcting only to Shennan Section 1 issues) would have to be kept separate from the material not precluded (i.e., relating to Section 2 Sherman or Section 5 FTC Act issues). At the same time, the other parties would be free to use the precluded evidence as to all issues.
In light of these practical considerations, which show the potential for delay and unnecessary complication of the proceedings, the Licensing Board's refusal to apply res judicata should be affirmed.
2.
Primary Jurisdiction Is Not Involved t
TUGCO's Response attempts also to minimize the significance of the different causes of action in the District Court proceeding and the NRC proceeding by hinting that the doctrine of primary jurisdiction is somehow relevant to a review of the Licensing Board's Order.S There is no need, in Staff's view, to digress into the area of primary jurisdiction for an analysis of the propriety of invoking res judicata against C&SW. The thrust of primary jurisdiction would be that the NRC's proceedings should operate to stay a federal court antitrust case.
See Ricci v. Chicago Mercantile Exchange, 409 U.S.289(1973); Carnation Co. v. Pacific Westbound Conference, 383 U.S.
4_1/ TUGC0 Response, at pp. 7-9, 32.
1743 129 213(1966); Pan American World Airways v. United States, 371 U.S. 296, 305 (1963).E No one has suggested, to Staff's knowledge, that the NRC's antitrust responsibilities in these two proceedings should somehow stay any district court antitrust case. Accordingly, the argument raised by TUGC0 relating to primary jurisdiction is inapposite to the situation at hand.
3.
TUGCO's Construction of 6105c Is Not Appropriate TUGC0 also suggests a novel reading of Section 105c to support its arguments favoring application of res judicata. TUGC0 uses the provisions of See-tion 105a, governing the NRC's responsibilities after a violation of the antitrust law has been found by a federal district court, to assert that Section 105c is applicable only as a " supplement" to court proceedings or where there are no court proceedings.
Such a construction has no support in the legislative history, as TUGC0 admits.43/ It is also not convincing, in the Staff's estimation, as a reason to invoke res judicata against C&SW where the causes of action are so different.
42/ California v. FPC, 369 U.S. 482 (1962), an earlier decision and the only citation TUGC0 offers in support, has been called "a surprising decision, seemingly running counter to other recent developme ts."
e Davis, Administrative Law Treatise, 619.06, at 635 (Vol. 2, Supp.
1970).
See also, Otter Tail Power Co. v. United States, 410 U.S. 366 (1973) where the Court held that a district court's finding of a 6 2 Sheman Act violation did not conflict with the Federal Power Commis-sion's regulatory responsibilities. Again, the emphasis of primary jurisdiction there was the effect the agency's detemination had on the court's jurisdiction, not the converse.
43/ TUGC0 Response, at p. 8.
1743 130
- Further, the Commission has not read Section 105c to have such inherent 1tmitations.
In South Texas, the Commission viewed Section 105a as comple-mentary to Section 105c, not as limiting it.b While acknowledging that I
the NRC's antitrust responsibilities include portions of the Sherman and Clayton Acts, which are also enforced by the federal courts, the Comission's South Texas opinion recognized the NRC's role as independent from that of the federal courts. This recognition refutes TUGCO's suggested reading of Sections 105aand105c.E D.
TUGCO's Other Assertions Do Not Provide Grounds for Reversal The Licensing Board's refusal to bar C&SW's full participation in these proceedings through res judicata was, in Staff's view, based upon a full consideration of relevant legal precedent and " sensitive regard" for 44/ As the Comission stated:
Nor can it reasonably be argued that Congress did not foresee that antitrust allegations might be raised outside the license review context. Subsequent allegations that licenses are being used in such a way as to violate the antitrust laws are to be referred to the Department of Justice for investigation and possible enforcement action, and if violations are found by a court, the Commission is given express statutory authority to take such license-related remedial action as is necessary.
But, as was observed at oral argument, we may have an unfolding sequence of circumstances here, many of which might have to be taken into account before a detemination is made on antitrust matters.
Houston Lighting & Power Co., et al. (South Texas Project, Unit Nos. I and 2), CLI-77-13, 5 NRC 1303, 1316, 1322 (1977) (footnotes omitted).
45/ The NRC's interpretation of Section 105c of the Atomic Energy Act has persuasive authority. Udall v. Tallman, 380 U.S. 1, 16 (1965); 2 Davis, Administrative Law Treatise, 7:22, at 107 (2d ed.1979).
1743 131
practical and policy aspects of the situation at bar. Yet, TUGC0 ignores the Licensing Board's overall analysis and, instead, suggests that certain isolated aspects of the Order are grounds for reversal.
1.
The Fact-Law Dichotomy TUGC0 argues that the Licensing Board should not have relied upon certain decisions addressing the inapplicability of collateral estoppel (and possi-bly res judicata) where the statutory legal standards which governed the two respective actions differed significantly. TUGC0 asserts that these decisions, among them the Appeal Board's antitrust decision in Toledo Edison Co.E nd a
the Supreme Court's decision in United Shoe Machinery Corporation v. United States,E concerned preclusion of issues of law under two different statu-tory standards, not preclusion of underlying fact.E The Staff submits, and even TUGC0 itself acknowledges.E that the nature of the issues TUGC0 seeks to preclude in Comanche Peak is a mix of fact and law.E On that point, the Staff's reading of Toledo Edison Co. has been prosented in the earlier response to the HL&P petition.b 4_6/ ALAB-560, at 209 (slip opinion dated Sept. 6,1979).
g7/ 258U.S.451(1922).
48/ TUGC0 Response, at pp.
19-21.
49/ TUGC0 Response, at p. 21.
50f The Appeal Board has indicated that in a situation where res judicata is applicable (the converse of the instant situation), it could find no basis to draw a distinction between matters of fact and law. Toledo Edison Co, et al. (Davis-Besse Nuclear Power Station Units 1, 2 & 3),
ALAB-378, 5 NRC 557, 563-64 n. 7 (1977).
5_1] Supra, note 18, at pp. 21-22.
743 jg
. s The Appeal Board's decision 5_2/ a plying collateral estoppel in one instance and denying it in another, demonstrates, first, that the presence of substan-tially different statutory standards is relevant to any analysis of issue or claim preclusion. Second, the matters sought to be precluded are recognized as a mix of fact and law.
In addition, the discursive nature of the District Court's opinion in West Texas Utilities will make it extremely difficult to draw a line consistently and accurately between factual and legal findings should res judicata be applied to matters of pure fact alone.
The Staff's reading of United Shoe, as presented in the Licensing Board's Order, leads to two observations.
First, the Licensing Board cites United Shoe generally to illustrate how preclusion will not be accorded in the second proceeding if the legal standards are different from those in the fi rst.
Second, in United Shoe, the Supreme Court concluded that, although exactly the same leases were in controversy, a prior detemination that the tying and other restrictive clauses of the contracts did not violate Sec-tion 1 of the Sherman Act (i.e., did not unduly restrain trade or competition) would not bar subsequent Clayton Act litigation on whether the same clauses might substantially lessen competition or tend to create a monopoly.
Although the Court did not discuss whether issues involving facts detemined in the first litigation would be precluded in the second, a reasonable interpretation 52/ ALAB-560,at209-12,226-31(Slipopinion, Sept.6,1979).
2 1743 133
- of that opinion suggests that the underlying facts comprising the compendium of evidence relevant to the legal issues would not be barred.E United Shoe, however, did make it clear that where an issue "was not and could not have been involved or decided in the former suit," res judicata is notappropriate.E Applying that notion to the situation here, it is clear E did not have jurisdiction that the District Court in West Texas Utilities to decide whether C&SW's evidence proved a situation inconsistent with anti-trust laws or their policies under Section 105c of the Atomic Energy Act.
It follows, then, that C&SW should not be foreclosed from addressing any Section 105c issues in the Comanche Peak proceeding here, including ones based on i 1 Sherman Act matters. E l
TUGC0 also attempts to support its fact versus law argumentE by pointing to the Commission's statement in South Texas that "our expertise [in antitrust]
53/ See 258 U.S. at 460-65 where factual matters are discussed in detail.
3 54/ 258 U.S. at 462, as quoted in the TUGC0 Response, at p. 21.
55/ Supra note 6.
56/ TUGC0 also argues that Pacific Seafarers, Inc. v. Pacific Far East Line, Inc., 404 F.2d 804 (D.C. Cir.1968) is inapposite because the first forum in that case had no jurisdiction and also because fact pre-clusion was not at issue in that case. The Staff submits that its views on United Shoe also refute this argument--lack of jurisdiction in the first forum means that res judicata cannot be invoked, i.e. there will be no preclusion on issues of fact or law in the second forum.
57/ TUGC0 Response, at p. 23.
1743 134
is not unique."E This, TUGC0 suggests, implies that the Commission intended res judicata to be broadly applied, ostensibly without regard for the factors outlined in Alabama power Company and other NRC precedents. The above quotation from South Texas addressed solely the issue of whether, in the context of the NRC's two-stage, prelicensing antitrust review process, Section 186 of the Atomic Energy Act could be read to include ongoing police powers in a post-licensing antitrust review situatiork in light of Cities ofStatesvillev.AEC.E The Staff submits that TUGCO's reliance on that quotation is inapposite; the quotation pertains to matters not applicable to the present situation.
TUGCO's fact-law dichotomy seems to be based on the premise that the alleged
" facts" which TUGC0 seeks to preclude are simple facts which are easily found as such in the West Texas Utilities opinion. The Staff does not agree with that premise.
For example, the Staff would view concerted action under Section 1 of the Shennan Act as a mix of factual and legal issues.
Given the nature of the District Court's findings, the Staff submits that this is not a mere " fact" appropriate for res judicata before the NRC. The District 58/ M. at 24.
59/ See 5 NRC at 1314-1317.
g 441 F.2d 962 (D.C. Cir.1969).
1743 135
Court actually found facts showing concerted action, but read another ele-ment into the Section 1 case law--that a party had to be forced to partici-pate in the concerted action--to reach its conclusion that there was no concerted action for Section 1 purposes.N Similarly, the District Court made findings on relevant markets, even though they were not particularly fundamental or "necessary" to the Section 1 issue before the District Court. TUGC0 views these as simple fact findings. Yet, the two Appeal Board antitrust decisions in Davis-BesseN and Midland,E make the respective, ultimate legal deteminations as to appropriate product and geographic markets and submarkets only after examining the nature of the electric industry across several states, a multitude of actions by various parties, and numerous legal doctrines. The NRC must make such a complex analysis for the Section 2 Sheman Act monopolization issues involved, but invocation of res judicata so as to bind the NRC to the District Court's
" finding," made in the context of a Section 1 Sheman Act action, would 61/ See 470 F. Supp. at 809 (" common understanding" found), 817 (finding concerted measures "...to protect against inadvertent interstate flows of electricity"), 818 (contracts have " clear indications that the parties will remain in intrastate commerce"), 837 (" understanding between the co-owners" of the South Texas Project). Thus, " concerted action" seems to be a legal tem of art to the District Court, and not a simple fact deserving res judicata as TUGC0 urges.
62/ ALAB-560, at pp. 68-71 (Sept. 9,1979).
g ALAB-452, 6 NRC 892, 945-997 (1977).
1743 136 ignore the differences in the causes of action and all practical ramifica-tions. TUGCO's arguments do not, in the Staff's view, provide a reasonable basis upon which to reverse the Licensing Board.
2.
TUGCO's Public Policy Arguments TUGC0 also analyzes public policy casesb and argues that:
(1) federal courts have refused to invoke res judicata for policy reasons applicable solely to the courts; (2) NRC cases which discuss res judicata deal not with public policies peculiar to the NRC but deal only with fundamental legal tenets; and (3) the policies underlying res judicata, economy of judical
[ adjudicatory] time and certainty in legal relationships, are not being given adequate weight here. The Staff submits that TUGCO's analysis, if accepted, g
yields a result inconsistent with the Alabama Power Company mandate to consider public policy factors.
In its first and second points, TUGC0 essentially asks this Appeal Board to recognize the right of the courts to deny res judicata for certain public policy reasons but, at the same time, to deny the right of the NRC to consider its own relevant public policy reasons when faced with a question of whether to apply res judicata. This is contrary to the Commission's directive in Alabama Power Company and its explicit recognition in South Texas of the policies which are peculiar to the NRC's antitrust responsibilities.b 64/ TUGC0 Response, at pp. 25-32.
65/ 5 NRC at 1314-16. See also, Alabama Power Co., supra, 7 AEC at 213-14.
H.R. REP. NO. 91-1479, supra note 30.
1743 137 As to TUGCO's third point, the NRC is faced here with a situation where the same evidence may be introduced by other parties.
In addition, the sorting out of C&SW's evidence into that which is precluded and that which is not may unduly delay the proceedings, especially since there is no realistic expectation that TUGCO's defensive case will be different if res judicata is invoked against C&SW. Further, the pending appeal of the District Court decision may contribute to further delay and complication.
Indeed, the practical indications strongly suggest that applying res judicata may cause unwarranted confusion and delay in an otherwise straightforward evidentiary hearing. Given that the policies of certainty in legal relations and relieving a party from relitigating the same matter 16/ which lie behind the doctrine of res.iudicata and the same cause of action requirement,E are dramatically absent in the South Texas and Comanche Peak proceedings, the Licensing Board's Order should be affimed.
IV. THE LICENSING BOARD PROPERLY REFUSED TO GRANT
SUMMARY
DISPOSITION AGAINST C&SW TUGCO's Response also raises the new issue of whether the Licensing Board was correct in refusing to grant sumary disposition against C&SW and there-by refusing to dismiss it from the Comanche Peak proceeding.0E/
66/ TUGC0 Response, at pp.
32-33.
67/ Commissioner v. Sunnen, 333 U.S. 591, 597 (1948); Alabama Power Co., supra, at 212; IB Moore's Federal Practice, Para. 0.405[1], at 623-24, 628-29 (2d ed. 1974).
68/ TUGC0 Response, at pp.1,12-18.
1743 138 The Appeal Board, in Cleveland Electric Illuminating Co. et. al. (Perry Nuclear Power Plant, Units 1 and 2),El discussed the burden of the party moving for summary disposition under 10 CFR i 2.749: the party seeking summary disposition, not the party opposing it, has "the burden of showing the absence of a genuine issue as to any material fact."
The Staff regards TUGCO's Motion before the Licensing Board as not meeting the burden of showing the absence of a genuine issue of material fact.
TUGC0 argues t'.iat the Licensing Board should have deemed the " facts" found by the District Court as admitted against C&SW. This, TUGC0 asserts, is in accord with federal decisions, NRC precedent, and 10 CFR 9 2.749(d), and would have provided a basis to dismiss CASW from Comanche Peak.
However,10 CFR 5 2.749(a), requiring that "a statement of the material facts as to which it is contended that there exists a genuine issue to be heard" be appended to any answer filed by a party opposing a motion for summary disposition, does not compel a licensing board to grant the motion where the party moved against fails to provide such a statement or indeed to file any answer at all.20/ Although, as TUGC0 potats out, C&SW's answer did not include such a statement, both Brownsville and the Staff provided such 69] ALAB-443, 6 NRC 741, 753-54 (1977) (hereinafter " Perry"), citing Adickes v. Kress, 398 U.S.144,157 (1970).
70/ Perry, 6 NRC at 753-54.
1743 139
_ 27 -
statements in their answers to TUGCO's motion.E 10 CFR i 2.749(a) specifi-cally contemplates this situation:
Any other party may serve an answer opposing the motion with or without affidavits,... There shall be annexed to such answer a separate, short statement of the material facts as to which it is contended that there exists a genuine issue to be heard.
(emphasis added.)
Thus, even if TUGC0 is correct in its assessment of CSW's answer, there is still no reason to reverse the Licensing Board on this point.
Further, the last sentence of 10 CFR 6 2.749(b) reads: "If no such answer is filed, the decision scught, if appropriate, shall be rendered" (emphasis added). TUGC0 appears to ignore the discretion lodged in the Licensing Board by the words "if appropriate." Even if a motion for sumary disposi-tion is totally unopposed, a situation which is not present here, summary disposition can, in appropriate instances, be denied.E TUGC0 cites Power Authority of the State of New York (Greene County Nuclear Power Plant), LBP-79-8, 9 NRC 339 (1979) in support of its position.
In Greene County, the Licensing Board confronted circumstances different from those before the Licensing Board here in that the intervenors in Greene County 71/ TUGC0 cites Pacific Gas and Electric Company (Stanislaus Nuclear Project.
1 Unit 1), LBP-77-45, 6 NRC 159 (1977), for the proposition that procedures and standards under 10 CFR 6 2.749 are generally analogous to Rule 56 of the Federal Rules of Civil Procedure. A closer examination of Stanislaus reveals that the Licensing Board there denied Applicant's motion for summary disposition because "[t]he answers of the other parties to the PG&E motion for sumary disposition...
[are] replete with disputed issues involving material facts." 6 NRC at 165.
72/ Perry, 6 NRC at 753-54.
did not file any response, stritten or oral, to a sumary disposition motion.
In addition, the applicant and the Staff had filed affidavits and incorpo-rated testimony of both applicant and Staff to support the applicant's motion.
Further, no party challenged applicant's statement that no genuine issue of material fact was raised by the intervenor contention that the "descrip-tion of the geology is not, in fact, a description of the Cementon site but relates to an area located approximately 15 miles away." 9 NRC at 344.
Accordingly, although the Licensing Board in Greene County did exercise its discretion to grant sumary disposition for the applicant, the applicant's motion was adequately supported ana <as ??t opposed by any other party; this is not the situation with the TUGC0 Motion.
To accept TUGCO's argument would be to ignore the plain language of 10 CFR
$ 2.749 an<1, in its place, apply Rule 56 of the Federal Rules of Civil Pro-cedure with a very broad reading of the cases interpreting it.23/
For exam-ple, TUGC0 cites First National Bani. of Arizona v. Cities Services Company, 391 U.S. 253 (1968) (hereinafter Arizona Bank). Contrary to TUGCO's apparent understanding of the case, the Supreme Court in Arizona Bank was careful not to narrow the doctrine of Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464 (1962), E which holds that sumary judgment should be used sparingly in complex antitrust litigation.
In addition, the Court in Arizona Bank was concerned with of.her aspects of the petitioner's repeated failure to meet a sumary judgment motion against
]3/ TUGC0 Response, at pp. 17-18.
3 24/ 391 U.S. at 284-86.
743 j4}
it; that situation is not present here where TUGCO's motion was controverted in accordance with 10 CFR 6 2.749. The Court spoke to these other aspects:
Thus, petitioner [against whom sumary judgment was rendered]
repeatedly states that Cities has never disproved its participa-tion in the alleged conspiracy, despite the fact that the only evidence of such participation is his allegation that the failure to deal resulted from conspiracy.
Essentially all that the lower courts held in this case was that Rule 56(e) placed upon Waldron the burden of producing evidence of the conspiracy he alleged only after respondent Cities Service conclusively showed that the facts upon which he relied to support his allegation were not susceptible of the interpretation which he sought to give them. That holding was correct. To the extent that petitioner's burden-of-proof argument can be interpreted to suggest that Rule 56(e) should, in effect, be read out of antitrust cases and permit plaintiffs to get to a jury on the basis of the allegations in their complaints, coupled with the hope that some-thing can be developed at trial in the way f/ evidence to support those allegations, we decline to accept it.-
TUCCO 3150 cites other authorities addressing the obligation, under Rule 56, to respond to motions for sumary judgment. Even though decisions under Rule 56 may be helpful as guidance in some situations arising under 10 CFR i 2.749,E he Staff submits that TUGCO's authorities are not persuasive t
where the plain language of i 2.749 is adequate to resolve the issue in dispute.
However, one other aspect of federal and NRC case law on Rule 56 and Sec-tion 2.749, respectively, is on point:
denials of motions for sumary 25/ 391 U.S. at 289-90.
26/ Perry,6NRC741,756n.46(1977).
1743 142
judgment and for summary disposition are interlocutory and not immediately appealable. Louisiana Power and Light Company (Waterford Steam Electric Generating Station, Unit 3), ALAB-220, 8 AEC 93 (1974). Interlocutory appeals are not permitted in administrative proceedings and in the federal court system for parallel reasons: piecemeal appeals are inefficient and unnecessarily time-consuming. The accepted procedure for agencies and courts alike is to consider appeals only from final orders, where all the rulings contained in that decision can be reviewed together.
Accordingly, the Staff finds no merit in any of the TUGC0 arguments proffered as grounds to reverse the Licensing Board's denial of summary disposition against C&SW.
Indeed, the authorities cited above support the proposition that the Appeal Board should not direct certification of this question.
V.
CONCLUSION For the reasons stated above, the Appeal Board should deny certification, as sought in TUGCO's Response, on the grounds that certification is improper under these particular circumstances.
In the event that certification is 1743 143
~
31 -
granted, the Licensing Board's Order denying res judicata and declining to grant sumary disposition against C&SW should be affimed.
Respectfully submitted, Ao Fredric D. Chanania Joseph Rutberg Counsel for NRC Staff Chief, Counsel and Director, Antitrust Division f
Office of the Executive Legal T7,su 8.2,,M Director Ann Hodgdon d
Counsel for NRC Staff Roy P. Lessy, Jr.
Counsel for NRC Staff Michael B. Blume Counsel for NRC Staff Dated at Bethesda, Maryland this 7th day of January, 1980 1743 144 a
c.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of HOUSTON LIGHTING & POWER COMPANY
)
NRC Docket Nos. 50-498A PUBLIC SERVICE BOARD OF SAN ANTONIO
)
50-499A CITY OF AUSTIN
)
CENTRAL POWER AND LIGHT COMPANY
)
(South Texas Project, Unit Nos.
)
1 and 2)
)
)
TEXAS UTILITIES GENERATING
)
NRC Docket Nos. 50-445A COMPANY, et al.
)
50-446A (Comanche Peak Steam Electric
)
Station Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFF REPLY TO TUGCO'S RESPONSE TO AND JOINDER IN HOUSTON LIGHTING AND POWER COMPANY'S REQUEST FOR DIRECTED CERTI-FICATION AND REVIEW OF RULINGS ON COLLATERAL ESTOPPEL AND
SUMMARY
DECISION 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 7th day of January,1980.
Marshall E. Miller, Esq., Chairman Donald A. Kaplan, Esq.
Atomic Safety and Licensing Board Panel Susan B. Cyphert U.S. Nuclear Regulatory Comission Nancy A. Luque Washington, D. C.
20555 Frederick H. Parmenter, Esq.
David A. Dopsovic, Esq.
Michael L. Glaser, Esq.
P. O. Box 14141 1150 Seventeenth Street, N.W.
Washington, D. C.
20036
-Washington, D. C.
20044 Mr. William C. Price Sheldon J. Wolfe, Esq.
Central Power & Light Co.
Atomic Safety and Licensing Board Panel P. O. Box 2121 U.S. Nuclear Regulatory Comission Corpus Christi Texas 78403 Washington, D. C.
20555
'G. W. Oprea, Jr.
Atomic Safety and Licensing Board Executive Vice President U.S. Nuclear Regulatory Comission
' Houston Lighting & Power Company Washington, D. C.
20555 P. O. Box 1700 Houston, Texas 77001 Docketing and Service Section Office of the Secretary Robert E. Bathen U.S. Nuclear Regulatory Comission R. W. Beck & Associates Washington, D. C.
20355 P. O. Box 6817 Orlando, Florida 32803 R. L. Hancock Director City of Austin Electric Utility Somervell County Public Library P. O. Box 1088 P. O. Box 417 Austin, Texas 78767 Glen Rose, Texas 76043 1743 1A5 R. Gordon Gooch, Esq.
Jerry L. Harris John P. Mathis ESq.
Richard C. Balough Baker & Botts Dan H. Davidson, City Manager e
1701 Pennsylvania Avenue, N.W.
City of Austin Washington, D. C.
20006 P. O. Box 1088 Austin, Texas 78767 J.K. Spruce, General Manager City Public Service Board Jerome Saltzman, Chief P.O. Box 1771 Antitrust & Indemnity Group San Antonio, Texas 78203 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Robert C. McDiarmid, Esq.
Robert A. Jablon. Esq.
Jay Galt Esq.
David A. Giacalone, Esq.
Jack P. Fite, Esq.
Marc R. Poirier, Esq.
Looney, Nichols, Johnson & Hayes Spiegel & McDiamid 219 Couch Drive 2600 Virginia Avenue, N.W.
Oklahoma City, Oklahoma 73102 Washington, D.C.
20037 Merlyn D. Sampels, Esq.
Jon C. Wood, Esq.
Jos. Irion Worsham, Esq.
W. Roger Wilson, Esq.
Spencer C. Relyea, Esq.
Matthews, Nowlin, Macfarlane Worsham, Forsythe & Sampels
& Barrett 2001 Bryan Tower, Suite 2500 1500 flamo National Building Dallas, Texas 75201 San Antonio, Texas 78205 Morgan Hunter, Esq.
Mr. W. N. Woolsey McGinnis, Lochridge & Kilgore Kleberg, Dyer, Redford & Weil Fifth Floor, Texas State Bank Building 1030 Petroleum Tower 900 Congress Avenue l
Corpus Christi, Tesas 78474 Austin, Texas 78701 Dick Terrell Brown, Esq.
Joseph B. Knotts, Esq.
800 Milam Building Nicholas S. Reynolds, Esq.
San Antonio, Texas 78205 Debevoise & Liberman 1200 Seventeenth Street, N.W.
E. William Barnett, Esq.
Washington, D.C.
20036 Charles G. Thrash, Jr., Esq.
Melbert D. Schwarz, Esq.
Douglas F. John, Esq.
Theodore F. Weiss, Esq.
Akin, Gump, Hauer & Feld J. Gregory Copeland, Esq.
1333 New Hampshire Avenue, N.W.
Baker & Botts Suite 400 3000 One Shell Plaza Washington, D.C.
20036 Houston, Texas 77002 Don R. Butler, Esq.
Robert Lowenstein, Esq.
Sneed, Vine, Wilkerson, Selman & Perry J.A. Bouknight, Esq.
P. O. _ Box 1409 William J. Franklin, Esq.
Austin, Texas 78767 Peter G. Flynn, Esq.
Douglas G. Green, Esq.
John W. Davidson, Esq.
Lowenstein, Newman, Reis. Axelrad Sawtelle, Goode, Davidson & Troilo
& Toll 1100 San Antonio Savings Building 1025 Connecticut Avenue, N.W.
San Antonio, Texas 78205 Washington, D.C.
20036 1743 146 Kevin B. Pratt C. Dennis Ahearn. Esq.
Attorney Generai's Office Debevoise & Libeman State of Texas 1200 Seventeenth Street, N.W.
P. O. Box 1254B Washington, D.C.
20036 Austin, Texas 78711 Alan S. Rosenthal, Chairman James E. Monahan Atomic Safety and Licensing Appeal Executive Vice President and General Manager Board Brazos Electric Power Cooperative, Inc.
U.S. Nuclear Reoulatory Comission
. P. O. Box 6296 Washington, D.C'.
20555 Waco, Texas 76706 Michael C. Farrar, Esq.
Frederick H. Ritts, Esq.
Atomic Safety and Licensing Appeal William H. Burchette. Esq.
Board Law Offices of Northcutt Ely U.S. N6 clear Regulatory Comission Watergate 600 Building Washington, D.C.
20555 Washington, D. C.
20037 Thomas S.' Moore, Esq.
Michael I. Miller, Esq.
Atomic Safety and Licensing Appeal James A. Carney, Esq.
Board Sarah N. Welling, Esq.
U.S. Nuclear Regulatory Comission Isham, Lincoln & Beale Washington, D.C.
20555 4200 One First National Plaza Chicago, Illinois 60603 David M. Stahl, Esq.
Isham, Lincoln & Beale Suite 701 105017th Street, N.W.
\\
'/
Washington, D.C.
20036 RoyP.Lessy,Jg.
Counsel for NRC Staff Mr. G. Helman King West Texas Utilities Co.
P. O. Box 841 Abilene, Texas 79604
.Maynard Human, General Manager Western Farmers Electric Cooperative P. O. Box 429 Anadarko, Oklahoma 73005 Donald M. Clements. Esq.
Gulf States Utilities Company P. O. Box 2951 Beaumont, Texas 77704 Robert M. Rader, Esq.
Conner, Moore & Corber 1747 Pennsylvania Avenue, N.W.
Washington, D.C.
20006 1743 147
.