ML19270F691
| ML19270F691 | |
| Person / Time | |
|---|---|
| Site: | 05000477, 05000478 |
| Issue date: | 02/12/1979 |
| From: | Sohinki S NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7903080557 | |
| Download: ML19270F691 (6) | |
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NRC Mw c w mg 02/12/79 UNITED STATES OF AMERICA flUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICErlSIt!G BOARD In the Matter of PUBLIC SERVICE ELECTRIC Afl0 Docket f!os. STfl 50-477 GAS COMPANY STN 50-478
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(Atlantic Nuclear Generating
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NRC STAFF RESPONSE TO INTERVENOR ATLANTIC COUNTY'S BRIEF
,cpfu p IN SUPPORT OF MOTION TO IMPOSE TERMS AND CONDITIONS \\
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The NRC Staff apposes Atlantic County's December 29, 1978 motion t impose terms and conditions on the Applicant's withdrawal of the appli-cation for construction pemits in the captioned proceeding (Motion).O Although the Motion was filed on December 29, 1978, the brief in support of the Motion was not filed until January 23, 1979.
In failing to file its brief with the December 2.9 Motion, Atlantic County failed to comply with the requirement of 10 CFR 52.730(b) that the Motion must " state with particularity the grounds" relied upon for the relief requested.
Atlantic County did not request leave of this Board to file its brief at a later time.
Indeed, it did not even honor its own commitment to file a supporting brief by January 15, 1979.
The !!otion may therefore be denied without reaching its merits.
-Y The Applicant filed a notice of withdrawal of its application on December 20, 1978.
790308O C
,2-Even if the Board decides to consider the brief filed by Atlantic County on January 23, 1979, the ifrief fails to support the County's requested relief.
First, the County, by its own admission, has failed even now to " state with particularity the grounds" relied upon for any of its requested relief except for the payment of attorney's fees, l presumably as a part of the request for reim5ursement for the costs of intervention. The County states:
The narrow scope of this brief will be focused on the power and propriety of the f1RC to impose attorney fees as a condition of withdrawal of an application.J/
Since attorney's fees are the only subject of the brief, the Staff believes that the other relief rauested in the December 29 Motion should be denied out of hand. flo party should have to speculate as to the grounds upon which the requested relief is based.
3 The County had also sought the following relief in its December 29 Motion:
(1) costs of intervention other than attorney's fees.
(2) the posting of a bond or cash by the Applicant in an amount of $250,000 to cover legal costs and expert costs that will be incurred by Intervenors in the event a substantially similar application is filed in the future. Said bond or cash deposit should be for a term of ten (10) years.
(3) an order dismissing the application with prejudice.
(4) an order precluding the Applicant from filing a substantially similar application for the next ten (10) years or such otfier reasonable period of time.
(5) an order precluding the Applicant from filing an application to site a floating nuclear power plant or plants in the coastal or bay waters of flew Jersey for the next 10 years or such other reasonable period of time.
(6) such other relief as may be just and appropriate.
- Brief, p. 2.
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. Further, the request for attorney's fees is-devoid of merit. The Supreme Court of the United States has already disposed of a similar request in Alyeska Pioeline Service Co. v. Wilderness Society, et al.,
421 U.S. 240 (1975). The Court made two major points in that case.
First, it concluded that ab'sent express statutory authority created by Congress for award of attorney fees, sucfi fees could not be awarded.
Secondly, it specifically rejected an argument that the Wilderness Society (in opposing the issuance of permits by the Secretary of the Interior which were required for construction of the trans-Alaska oil pipeline.) had acted for all citizens as a private attorney general, and thus should be compensated. These holding destroy any force which the Atlantic County's brief may have had.
It is particularly noteworthy that one of the statutes pursuant to which the Wilderness Society sought to block the iss u. ace of permits in Alyeska was NEPA. This is one of the two statutes pursuant to which the County sought to raise issues in this proceeding. Neither that statute, nor the Atomic Energy Act, contains any authorization for the award of fees by an Atomic Safety and Licensing Board.
Further, the Supreme Court's rejection of the " private attorney general" argument in Alveska is particularly significant, since Atlantic County makes the same argument in its brief.O 3 rief, p. 5.
B
. In summary, the December 29 Motion should be denied because (1) the movant did not comply with~ the requirements of 10 CFR 92.730(b), by stating the grounds upon which it was requesting relief, and failed to meet even its own self-imposed deadline for.the filing of a supporting brief, (3) the movant did not address any of the requests for relief except the request for an award of attorney's fees, and (3) even the request for attorney's fees lacks merit, since there is no statutory authorization for such an award, pursuant to NEPA, the Atomic Energy Act, or upon its claim that it is acting as a " private attorney gener21." See Alyeska v. Wilderness Society, suora.
Respectfully submitted 7
Stephen M. Schinki Counsel for NRC Staff Dated at Bethesda Maryland this 12th day of Eebruary,1979 n.,
4 UNITED STATES OF A!! ERICA NUCLEAR REGULATORY COM:ilSSI0fi BEFORE THE ATCMIC SAFETY AND LICENSIt:G BOARD In the Matter of Docket Nos. STN 50-477 PUBLIC SERVICE ELECTRIC AND STN 50-478 GAS COMPANY (Atlantic Nuclear Generating Station, Units 1 and 2)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO INTERVE';0R ATLANTIC COUNTY'S BRIEF Ifl SUPPORT OF MOTION TO IMPOSE TERMS AND CONDITIONS" in the above-captioned proceedino have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, through deoosit in the Nuclear Regulatory Commission's internal mail system, this 12th day of February, 1979:
Sheldon J. Wolfe, Esq., Chairman
- Troy E. Conner, Esq.
Atomic Safety and Licensing Board Conner, Moore and Corber U. S. Nuclear Regulatory Ccmmission Suite 1050 Washington, D. C.
20555 1747 Pennsylvania Avenue, N. W.
Mr. Lester Kornblith, Jr.*
Technical Adviser Atomic Safety and Licensing Board U. S. Nuclear Regulatory Cuir.r.ission Washington, D. C.
20555 Dr. David R. Schink Richard Fryling, Jr., Esq.
Department nf Oceanocraphy Public Service Electric and Texas A & M University College Station, Texas 77840 Gas Company 80 Park Place Mr. George B. Ward Newark, New Jersey 07101 City of Brigantine Brigantine, New Jersey 08203 Mr. John Williamson Atlantic County Citizens William F. Hyland, Esq.
Council on Environment Attorney General of New Jersey 211 Forest Drive Department of Law and Public Safety Linwood, New Jersey 08221 Division of Law 1100 Raymond Boulevard Newark, New Jersey 07102
. Anthony Z. Roisman, Esq.
Natural Resources Defense Council Harold P. Green, Eso.
917 15th Street, N. W.
600 New Hampshire Avenue, N. 11.
Washington, D. C.
20005 Washington, D. C.
20037 Franklin f4. Berry, Jr., Esq.
Berry, Sommerill, Rinck & Berry William Potter, Esq.
34 Washington Street Department of Public Advocate P. O. Box 757 Division of Public Interest Toms " ver, flew Jersey 08753 Advocate P. O. Box 141 Carl Valore, Jr., Esq.
520 East State Street Valore, McAllister, DeBrier, Trenton, flew Jersey 08625 Aron & tIestmoreland 535 Tilton Road Atomic Safety and Licensing P. O. Cox 152 Board Panel
- florthfield, flew Jersey 08225 U. S. fluclear Regulatory Commi:sion Washington, D. C.
20555 Harold P. Abrams, President Atlantic County Citizens Council Atomic Safety and Licensing on Environment Appeal Board
- 9100 Amherst Avenue U. S. fluclear Regulatory Commission Margate, flew Jersey 08402 Washington, D. C.
20555 Dr. Willard Rosenberg Docketing and Service Section*
8 N. Rumson Avenue Office of the Secretary Margate, New Jersey 08221 U. S. Nuclear Regulatory Co=iission Washington, D. C.
20555 Dr. Glenn L. Paulson Assistant Commissioner of the State of New Jersey Department of Environmental Protection Labor & Industry Building John Fitch Plaza Trenton, flew Jersey 08625 Mark First, Esq.
Deputy Attorney General State of New Jersey 7g p
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State House Annex j
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Trenton, New Jersey 08625 A-L
/Ste)hef'i. Schinki Mary ti. Cheh, Esq.
Counsel for NRC Staff Suite 1000 600 flew Hampshire Avenue, N.W.
Washington, DC 20037