ML19261B277
| ML19261B277 | |
| Person / Time | |
|---|---|
| Site: | 05000477, 05000478 |
| Issue date: | 01/23/1979 |
| From: | Valore C ATLANTIC COUNTY, NJ |
| To: | |
| References | |
| NUDOCS 7902150201 | |
| Download: ML19261B277 (9) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD NRC PUBLIC DOCU}ENT ROOM IN THE MATTER OF DOCKET NOS. STN 50-477 & 50-478
) e N PUBLIC SERVICE ELECTRIC g AND GAS COMPANY ) (r QSb 4 (Atlantic, Generating Station ) fj. -
Units 41 and #2)
-r gg 6gg y O 3 M INTERVENOR ATLANTIC COUNTY'S BRIEF D
<>>> 6 Os IN SUPPORT OF MOTION TO IMPOSE TERMS AND CONDITIONS PURSUANT TO 10 CFR, SECTION 2.107 FACTS The applicant on December 20, 1978, filed a Notice of Withdrawal of application to construct a breakwatei and site two floating nuclear power plants 2.8 miles off :he coast of South Jersey, 12 miles northeast of Atlantic City The Atlantic Generating Station proceedings are inextricably connected te the Offshore Power Systems application under Appendix M to manufacturer eight (8) floating nuclear power plants , (Docket No.
STN 50-437).
Atlantic County intervened in both the Atlantic Generating Station (AGS) and the Offshore Power System (CPS) cases.
Atlantic County has filed a motion for imposition of terms and conditions for the withdrawal of application by the applicant pursuant to 10 CFR, Section 2.107.
LAW Congress has given exclusive power to the Nuclear Regulatory Commissicn under the Atomic Energy Act, 42 USC, sec. 2011, et seq.
to regulate the licensing of nuclear plants and establish rules and 7902150po/
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regulations. The regulation under consideration is 10 CFR, sec. 2107 (a) Withdrawal of application which provides:
"The Commission ray permit an applicant to withdraw an application prior to the issuance of a notice of hearing on such terms and conditions as it may prescribe, or may, on receiving a request for withdrawal of an application deny the application or dismiss it with prejudice. Withdrawal
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of an application after the issuance of a notice of hearing shall be on such terms as the presiding officer may prescribe."
(emphasis supplied)
Thus, two of the options opened to the NRC are denial of the application or dismissal with prejudice. These two choices while certainly to be considered encompass a broader framework than this brief can hope to cover. The narrow scope of this brief will be focused on the power and propriety of the NRC to impose attorney fees as a condition of withdrawal of an application.
10 CFR, Section 2.107, can be better understood by examining its history, analogous powers of the Federal Courts and the reasons behind its existence.
10 CFR, Section 2.107(a) originally read as follows: .
"An applicant may withdraw an application at any time prior to the issuance of a notice of hearing."
27 FR 377, Jan. 13, 1962 However, the provision allowing unconditional withdrawal was obviously disfavored as within two years it was amended to provide for the imposition of terms and conditions upon withdrawal.
28 FR 10152, Sept. 17, 1963.
The reason for this hurried amendment became clear after examining Rule 41(a) of the Federal Rules of Civil Procedure.
Page 2
Rulo 41(a) provides for the imposition of terms and conditions by a Federal Court in the analogous situation of dismissal of a civil suit by the plaintiff. Where the accion has proceeded to a point where the defendant has expended a significant amount of time or money "rignificant" in a civil case having been determined to be either the time of answering the complaint or making a motion for summary judgment - dismissal is permitted only:
. . . upon order of the Court and upon such terms and conditions as the Court deems proper" Fed. Rule Civ. Proc. 41(a)
This Rule provides protection for the rights of defendants and has been used to compensate the defendant for the expenses to which he has been put. Attorney's fees,as the najor expense, have specifically been included. McCann v. Bentley Stores Corp., 34 F. Supp 234 (W.D. Mo. 1940); Nazzaro v. Weiner 38 FRD 430 (D. N.J. 1965) aff'd 353 F2d 537 (3d Cir. 1967); Lunn v. United Aircraft Corp., 26 FRD 12 (D. Del. 1960); American Cyanamid Co. V. McGhee, C.A. 5th, 1963, 317 F.2d, 295; Ryerson & Haynes, Inc. v. American Forging & Socket Co., (D.C. Mich., 1942 2 FRD. 343; Welter v. E. I. Du Pont De Nemours
& Co., (D.C. Minn. 1941), 1 FRD 551.
Just as these cases represent situations where the defendant was put to an expense by the plaintiff without an opportunity for final adjudication, the instant case presents a situation where the Intervenor, Atlantic County, was caused to expend large sums of money due to the v..tions of the applicant, Public Service Electric and Gas Co. There can be little doubt that the applicant forced Atlantic County to act. Atlantic County was 6bligated to protect Page 3
the interest and safety of its citizens when Public Service Electric and Gas Co. refused to refrain from its proposed course of action and ignored the contentions of Atlantic County. Atlantic County submitted the question of intervention to the voters on a referendum and intervened to raise matters of public interest, safety and health.
In most cases, litigants are not able to recover attorney's fees from the other parties. Generally, legislative authorization is required to permit an awarding of attorney's fees despite the contrary "American Rule". However, the matter before the Board in the instant ca_e is distinguishable from usual controversies by several factors. First, the case never reached a final judgment on the merits. The withdrawal is by unilateral action of the applicant. Thus, Atlantic County has been put to a great expense with no final _ determination in sight. As aptly expressed in Goldlawr, Inc. v. Shubert, (D.C. N.Y. 1973) 32 FRD 467:
"The rationale . . . on which an award of counsel fees under Rule 41(a) (2) is based is not 4 that successful defendants could have secured such fees but that defendants have been put to the expense of litigation all of which may at some future time have to be duplicated, since the dismissal is without prejudice."
See also, Lunn v. United Aircraft Corp., Supra.
Page 4
Secondly, Atlantic County has served as a private Attorney General, presenting assistance to the public that otherwise would not have been available. Atlantic County's intervention raised matters of interest to all citizens - not just those of Atlantic County.
Finally, and most importantly, this proceeding is before the NRC which has been granted broad powers with which to administer the atomic energy program. As the Court pointed out in Siegel v. Atomic Energy Commission, 400 F.2a 778, 783 (1968):
" Congress enacted a regulatory scheme which is virtually unique in the degree to which broad responsibility is reposed in the administering agency free of close prescription in its charter as to how it shall proceed in achieving the statutory cbjectives. "
The NRC is entrusted not only with ensuring safety from radiation hazards but with administering the entire nuclear program. While the Courts must deal within a more traditional frame-work, the NRC is required to make constant adjustments to a unique, a
dynamic field. Merely reciting general rules would be abdicating the duty which has been entrusted to the NRC. The massive costs required in nuclear litigation makes intervention by small local groups -
the groups with the most interest - extremely dif ficult. Allowing dismissal without reimbursement of these costs can increase the tremendous financial pressure in these groups, while the huge ut_lities deduct their costs as operating expenses. If the purpose Page 5
of the proceedings is really to ensure relevant input by all, the consideration of how to obtain this input is essential. No other form of litigation calls for such gargantuan expenditures by people who cannot afford it. Massive corporations can afford to do so when pitted against each other or against the Federal government, but small local groups cannot. The task is herculean to begin with. To allow the limited resources available to local groups to be decimated by " false starts" would leave little for the time when the action proceeds to a conclusion.
Any decision other than the one promulgated herein encourages lack of responsibility by utilities by creating the potential for abuse both in initiating and proceeding in litigation.
Participation by financially weak parties has been recognized by the NRC as often desireous and necessary as evidenced by the funding of indigent intervenors in the decision of the Comptroller General of the United States, Number D-92288, February 19, 1976.
4 Funding indigents is a good first step by the NRC to increase competent intervention. However, further steps are necessary to obtain a realisti- and adequate adversary proceeding since most intervenors, even of moderate means, are indigent when compared to multi-billion dollar utilities.
The decision of the Comptroller General concerning licensing decisions specifically left open the question whether the NRC has the power to order one participant in its proceedings to pay Page 6
the expenses of another. That exact question is again left open since the question here is framed in an application withdrawal setting. However, the fact that the question remains open indicates that the balance could tip either way. Unless the intervention process is to become even more onerous, there is only one logical way for that balance to tip.
CCNCLUSICN
- 1. An Order should be promulgated to award counsel fees and costs to the Intervenor, Atlantic County, in an amount to be determined by the Nuclear Regulatory Commissicn after submi.ssior, cf legal fees and costs in Affidavit form.
- 2. The withdrawal should be with prejudice.
/
JespecEfully subl $itted,/'
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L NUCLEAR COUNSEL FOR THE INTERVENOR, ATLANTIC COUNTY 4
January 23, 1979
UNITED STATES OF AMERICA NUCLEAR REGULATORY CCMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
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In the Matter of PUBLIC SERVICE ELECTRIC AND ) Docket No. STN 50-477 l*
& STN 50-478 v7%
D GAS COMPANY (Atlantic Generating Station ) d@)*
Units #1 and #2) g;g v'!: N9 ysTb' T'
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CERTIFICATE OF SERVICE
- s I hereby certify that the within brief in support of Au ' asif 'c O/ >3 by County's Moticn to impose terms upon the applicant's withdrawa f served upon the following by deposit in the U.S. mail this 23rd d January, 1979.
Sheldon J. ~Wolfe, Esq. Tro? B. Conner, Esq.
Chairman, Atomic Safety Conner, Moore & Corber
& Licensing Board 1747 Pennsylvania Ave. N.W.
U.S. Nuclear Regulatory Commission Washington, D.C., 20006 Washington, D.C., 20555 Franklin H. Berry , Jr. , Esq.
Mr. Lester Kornblith, Jr. County of Ocean Atomic Safety & Licensing Board P.O. Box 757 Panel 34 Washington Street U.S. Nuclear Regulatory Commission Toms River, N.J., 08753 Washington, D.C., 20555 Chairman, Atomic Safety &
Dr. David R. Schink Licensing Board Panel Department of Oceanography U.S. Nuclear Regulatory Commissica Texas A&M University Washington, D.C., 20555 College Station, Texas, 77840 Chairman, Atomic Safety & ,
John J. Degnan, Esq. Licensing Board Appeal Panel Attorney General of New Jersey U.S. Nuclear Regulatory Commission Department of Law and Washington, D.C., 20555 Public Safety Division of Law Stephen M. Schinki, Esq.
1100 Raymond Boulevard Counsel for NRC Regulatory Staff Newark, N.J., 07102 Office of the Executive Legal Direc U.S. Nuclear Regulatory Commission Mr. Chase R. Stephens Washington, D.C., 20555 Docketing & Service Section Office of the Secretary MarklL. First, Esq.
U.S. Nuclear Regulatory Deputy Attorney General Commission State of New Jersey Washington, D.C., 20555 State House Annex Trenton, N.J., 08625 Anthony Roisman, Esq.
Natural Resources Defense Council Harold P. Green, Esq.
917 15th Street, N.W. Suite 1000, The Watergate 600 Washington, D.C., 20005 600 New Hampshire Avenue, N.W.
Washington, D.C., 20037 s
Page 2 Dr. Glenn L. Paulson Assistant Commission, State of New Jersey Department of Environmental Protection Labor & Industry Building John Fitch Plaza Trenton, N.J., 08625 Richard Fryling, Jr., Esq.
Assistant General Solictor Public Service Electric & Gas Co.
80 Park Place Newark, N.J., 07101 9 William Potter, Esq.
t
.sistant Deputy Public Advocate 7artment of Public Advocate a3_ vision of Public Interest P.O. Box 141 520 East State Street Trenton, N.J., 08625 Richard S. Salzman, Esq.
Chairman Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C., 20555 Dr. John H. Buck Atomic Safety and Licensing '
Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C., 20555 Michael C. Farrar, Esq.
Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C., 205555 Carl Valore, Jr.
January 23, 1979