ML19289D151
| ML19289D151 | |
| Person / Time | |
|---|---|
| Site: | 05000477, 05000478 |
| Issue date: | 02/08/1979 |
| From: | Connor T CONNER, MOORE & CORBER |
| To: | |
| References | |
| NUDOCS 7902230073 | |
| Download: ML19289D151 (9) | |
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UNITEIF, STATES', OF AMERICA - .,
NUCLEAR JtEGULATOR(COMMNSION
,y - > " # F5l In the Matter of 9 O 1/ # .C/
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,Dd'Iet Nos. STN 50-477 PUBLIC SERVICE ELECTRIC -
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& GAS COMPANY ^ Q G' NG, 50-478 (Atlantic Ge.nerating Station, )
Units 1 and 2) )
APPLICANT'S BRIEF IN OPPOSITION TO MOTIONS i,2 INTERVENORS COUNTY OF ATLANTIC AND COUNTY OF OCEAN TO IMPOSE TERMS AND CONDITIONS UPON APPLICANT'S WITEDRAWAL OF APPLICATION Preliminary Statement On December 29, 1978, Intervenor Atlantic County served its notice of motion to impose terms and conditions upon the Notice of Withdrawal of Application previously filed by Applicant Public Service Electric & Gas Company on December 20, 1978. On January 9, 1979, the motion by Atlantic County was joined by Intervenor Ocean County. On January 15, 1979, the Applicant filed a motion to strike these motions, noting that each was frivolous on its face and, in any event, failed to state with particularity the gronds for the motion as required by the Commission's Regulations under 10 C.F.R. 52.730 (b) . The Intervenors did not respond to Applicant's motion to strike.
However, on January 23, 1979, more than three weeks after the filing of its motion, Intervenor Atlantic County filed a brief in support of its motion. Intervenor has abandoned all points of its motion except the i= position of attorney's fees 7902230073
as a condition of withdrawal of the application.-1/ Nonetheless, as we shall demonstrate belcw, there is absolutely no authority for this requested relief.
Arcument As we noted in our motion to strike, the cost of interven-tion, including attorney's fees, simply are not awardable to intervenors. See Nuclear Reculatorv Cc= mission (Financial Assistance to Participants in Ccmmission Proceedings), CLI-76-23, 4 NRC 494 (1976); Transnuclear, Inc. Lew-Level Uranium Excorts to EURATOM Member Nations, CLI-77-31, 6 NRC 849 (1977); Consu=ers Power Comoany (Midland Plant, Units 1 and 2), ALA3- 382, 5 NRC 603 (1977). In its Financial Assistance proceedings, the Commission expressly rejected funding for in-tervenors in licensing proceedings for individual reactors on the grounds that intervencr funding would not significantly contribute to the resciution of safety and environmental issues and the funding of full-scale intervention would be excessive.
In the Midland Plant proceedings, a request for financial assistance, including attorney's fees, was expressly rejected by an Appeal Board on the basis of the earlier proceeding before
-1/ Intervenor stated without elaboration that denial of the Applicant's motion to withdraw its applicaticn er dismissal of the application with prejudice were "two choices . . .
(which] enccmpass a broader framework than this brief can hope to cover." Intervenor Atlantic County's Brief at 2.
2/
the Cc= mission denying assistance. The Commission subsequently reaffirmed its position in the Uranium Exports proceedings.
If any further elucidation is required to demonstrate the unavailability of attorney's fee, it was provided by the Commission in Consumers Power Companv, Docket Nos. 50-329, 50-330 (Special Proceeding) (February 2, 1979). There, a private party requested payment of $1,000 in out-of-pocket expenses as part of a settlement of a disciplinary proceeding. The Com-mission sought guidance from the Comptroller General to determine, aside from NRC policy, the legality of such an award. The Comptroller General advised that "we see no basis on which the NRC can reimburse the private attorney for out-of-pocket expenses in connection with the special proceeding brought to investigate misconduct charges."-3/ Accordingly, the Commission declined to make the requested award to the private attorney.
Obviously, if the Commission itself is unwilling to award attorney's fees and costs to intervenors in proceedings before it, Cc= mission policy would be even more clearly contravened by requiring the payment of attorney's fees by applicants to the same intervenors.
Moreover, policy considerations aside, Intervenors have cited no authority for such relief. The case law relied upon by the Intervenors for an award of attorney'.s fees has been 2/ See also Censumers Power Ccmpany (Midland Plant, Units 1 and 2), ALA3-395, 5 NRC 772, 786 (1977).
3/ Slip Op. at 4.
clearly overruled. Thus, Intervenors rely upon a series of cases under Rule 41(a) of the Federal Rules cf Civil Procedure to the effect that attorney's fees may be a cond2.aion of r
voluntarily dismissing a civil action. Indubitably, none of these decisions has any continuing vitality following the decision of the Supreme Court in Alveska Pipeline Service Co. v.
Wilderness Society, 421 U.S. 240 (1975), which reaffirmed the "American Rule" uhat attorney's fees are not recoverable by the prevailing litigant in federal litigation in the absence of statutory authorization, and rejected the contrary view that attorney's fees mcy be awarded on the basis of a party's parti-cipation as a " private attorney general." Accordingly, the Supreme Court has expressly repudiated the doctrine relied upon by Intervenors that the federal courts have inherent jurisdict;on to award attorney's fees without express statutory authorization.
Intervenors mistakenly rely upon the decision of the Comptroller General in 1976 regarding the Con: mission's authority to fund participants in its proceedings. No. 3-92288 February 19, 1976). Quite simply, Intervenors have confused the issues of agency funding, which involves only the expenditures of a government agency subject to broad statutory mandate, with the availability of attorney's fees from a private party, which, as Alyeska Pipeline reiterates, requires explicit congressional approval. While it may be true that the Con:=d.ssion's authority to fund Intervenors does not require express statutory authority
if participation "'is necessary to pay the expenses of indigent intervenors in order to carry out NRC's statutory functions in making licensing determinations,'"-4/ attorney's fees is another matter. The Supreme Court in Alveska Pipeline plainly required an express statutory provision permitting the award or attorney's fees, because such an award is "a policy matter that Congress has reserved for itself."-5/ Thus, the Ccmmission is "not free to fashion drastic new rules with respect to the allowance of attorneys' fees to the prevailing party . . . or to pick ard 6/
choose" among parties to be awarded fees.
The only other authority cited by Intervenors is the conmission's " broad powers with which to administer the atomic energy program. " However, as the court stated in Greene County Plannine Board v. FPC, 455 F.2d 412, 426 {2d Cir.), cert. denied, 409 U.S. 849 (1972), in rejecting a similar claim on the basis of the broad regulatory powers of the FPC under the Federal Power Act, "[w]e would need a far clearer Congressional mandate to afford the relief requested, especially in dealing with counsel fees, when Congress has not hesitated in other circum-stances explicitly to provide for them when to do so was in the public interest." As stated previously, it was exactly this 4/ 4 NRC ar 497.
_5/ 426 U.S. at 269.
6/ Id.
rationale that the Supreme Court later approved in its Alveska Pipeline decision. Moreover, the Commission has already rejected this very argument in denying Intervenor funding. Given the Commission's stated position that funding for intervenors is not necessary for the Commission to perform its regulatory functions, it would be inconsistent and contradictory to hold that the exercise of its same functions requires an award of attorney's fees by one party to another.
Finally, there is no credibility to the Intervenors' expressed concern over " false starts." As noted in the Appli-cant's Motion to Strike, the sizeable $125,000 filing fee, which the Applicant has now forfeited by withdrawal of its applica-tion, is easily sufficient to protect against arbitrary or precipitous filings and withdrawals. Considering the time, resources and money that must be committed to a nuclear reactor plant, even prior to the date of application, it is utterly spurious to suggest that application may be made frivolously.
Conclusion There is no legal authority for the Commission to award attorney's fees against the Applicant. There is no inequity that even requires consideration of such an award. The Commission has already rejected the same arguments made by Intervenors in its decisions regarding intervenor funding.
If government funding for intervenors is not a sound proposition,
funding by private parties by wa2 of an award of attorney's fees is no more justified in logic or fairness.
Respectfully submitted, CONNER, MOORE & CORBER w 3. Gnoun.
TroyBq.onner,Jr.
Counsel for the Applicant February 8, 1979
UNITED S'l" TES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )
)
PUBLIC SERVICE ELECTRIC ) Docket Nos. STN 50-477
& GAS COMPANY ) 50-478
)
(Atlantic Generating Station, )
Units 1 and 2) )
CERTIFICATE OF SERVICE I hereby certify that copies of " Applicant's Brief in Opposition to Motions By Interrenors County of Atlantic and County of Ocean to Impose Te:.ms and Conditions Upon Applicant's Withdrawal of Application," dated February 8, 1979, in the captioned matter, have been served upon the following by deposit in the United States mail this 8th day of February, 1979:
Sheldon J. Wolfe, Esq. Carl Valore, Jr. Esq.
Chairman, Atomic Safety and Attorney for County of Atlantic Licensing Board Valore, McAllister, DeBrier, U.S. Nuclear Regulatory Aron and Westmoreland Commission 535 Tilton Road Washington, D.C. 20555 Northfield, New Jersey 08225 Mr. Lester Kornblith, Jr. Franklin H. Berry, Jr., Esq.
Atomic Safety and Licensing County Counsel Board Panel County of Ocean U.S. Nuclear Regulatory Berry, Su=merill, Rinck & Berry Commission P. O. Box 757 Washington, D.C. 26555 34 Washington Street Toms River, New Jersey 08753 Dr. David R. Schink Department of Oceanography Chairman, Atomic Safety and Texas A&M University Licensing Board Panel College Station, Texas 77840 U.S. Nuclear Regulatory Commissior Washington, D.C. 20555 Mr. Kenneth B. Walton 309 Twenty-First Street, South Chairman, Atomic Safety and B2.igantine, New Jersey 08203 Licensing Appeal Board Panel U.S. Nuclear Regulatory Co=missic:
John J. Degnan, Esq. Washington, D.C. 20555 Attorney General of New Jersey Department of Law and Stephen M. Schinki, Esq.
Public Safety Counsel for NRC Regulatory Staff Division of Law Office of the Executive Legal 1100 Raymond Boulevard Director Newark, New Jersey 07102 U.S. Nuclear Regulatory Cc= mission Washington, D.C. 20555
9 4
Mr. Chase R. Stephens Richard S. Salzman, Esq.
Docketing & Service Section Chairman Office of the Secretary Atomic Safety and Licensing U.S. Nuclear Regulatory Appeal Board Commission U.S. Nuclear Regulatory Washingten, D.C. 20555 Commission Washington, D.C. 20555 Anthony Z. Roisman, Esq.
Natural Resources Defense Council Dr. John H. Buck 917 15th Street, N.W. Atomic Safety and Licensing Washington, D.C. 20005 Appeal Board U.S. Nuclear Regulatory Mark L. First, Esq. Commission Deputy Attorney General Washington, D.C. 20555 State of New Jersey State House Annex Michael C. Farrar, Esq.
Trenton, New Jersey 08625 Atomic Safety and Licensing Appeal Board Harold P. Green, Esq. U.S. Nuclear Regulatory Commissier Fried, Frank, Harris, Shriver Washington, D.C. 20555
& Kampelman Suite 1000, The Watergate 600 C;0 New Hampshire Avenue, N.W.
Washington, D.C. 20037 Dr. Glenn L. Paulson Assistant Commissioner, State of New Jersey Department of Environment.al Protection Labor & Industry BuildinJ John Fitch Plaza Trenton, New Jersey 08625 Richard Fryling, Jr., Esq.
Assistant General Solicitor Public Service Electric
& Gas Company 80 Park Place Newark, New Jersey 07101 R. William Potter, Esq.
Assistant Deputy Public Advocate Department of Public Advocate Division of Public Interest Advocate P. O. Box 141 520 East State Street Trenton, New Jersey 08625
& A. -f Troy B./ Conner, Jr. V
MEETING NOTICE DISTRIBUTION Ibcket File J. Knight NRC PDR D. Ross Local PDR R. Tedesco TIC S. Pawlicki LWR #4 File Chief, SEB NPR Reading K. Kniel H. Denton W. Haass E. Case T. Novak D. Crutchfield Z. Rosztoczy D. Bunch R. Bosnak R. Boyd Chief, ICSB D. Vassallo W. Butler D. Skovholt F. Rosa W. Gammill V. Moore F. Williams R. Vollmer J. Stolz M. Ernst R. Baer R. Denise
- 0. Parr R. Ballard S. Varga B. Youngblood R. Clark W. Regan T. Speis G. Chipman P. Collins J. Collins C. Heltemes W. Kreger R. Houston G. Lear R. Mattson M. Spangler R. DeYoung V. Penaroya D. Muller J. Stepp ACRS (16) L. Hulman L. Crocker H. Ornstein H. Berkow L. Dreher Project Manager: M. Lynch B. Faulkenberry Attorney, ELD
Participants:
R. Clark A. Sinisgalli IE (3)
SD (7)
M. Service Receptionist L. Rubenstein
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