ML20053E685
| ML20053E685 | |
| Person / Time | |
|---|---|
| Site: | Bailly |
| Issue date: | 06/04/1982 |
| From: | Vollen R BUSINESS & PROFESSIONAL PEOPLE FOR THE PUBLIC INTERES |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20053E681 | List: |
| References | |
| NUDOCS 8206090150 | |
| Download: ML20053E685 (15) | |
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~A UNITED STATES OF AliERICA M NUCLEAR REGULATORY COISIISSION BEFORE ThE ATOMIC SAFETY AND LICENSING BOARD , gg ,g In the Matter of ) '
)
NORTHERN INDIANA PUBLIC SERVICE ) Docket No. 50-367 COMPANY )
)
(Bailly Generating Station, )
Nucicar-1) )
MEHORANDUM OF LAW IN SUPPORT OF APPLICATION.FOR AWARD OF FEES AND EXPENSES UNDER THE EQUAL ACCESS TO JUSTICE ACT BUSINESS AND PROFESSIONAL PEOPLE FOR THE PUBLIC INTEREST, INC. ("BPI"), by its attorneys, submits this Memorandum of Law to aid the Board in its determination of BPI's Application for an award of fcer and expenses under the Equal Access to Justice Act, P.L.96-481, amending 5 USC 5501 et seq. (EAJA).
I. INTRODUCTION The EAJA became effective on October 1, 1981, and provides for awards of attorneys' fees against the federal government, including federal agencies, in circumstances such as those present here. Exposure to liability for fees is greater than that of private litigants, "because of the greater resources and expertise of the United States." EAJA $201 (codified at 5 USC 5504 note.)
Section 203 of the EAJA amends the Administrative Procedure Act, 5 USC 55501 et seq., to provide in part:
8206090150 820604 PDR ADOCK 05000367 0 PDR
"S504. Costs and fees of parties (a)(1) An agency that conducts an adversary adjudication shall award, to a prevailing party other than the United States, fees and other expenses incurred by that party in connection with that proceeding, unless the adjudicative officer of the agency finds that the position of the agency as a party to the proceeding was substantially justified or that special circum-stanceu make an award unj ust. "
- 11. FACTUAL BACKGROUND For the Board's reference, a brief summary is set forth of each of the two proceedings for which an award is sought.
A. Construction Permit Extension Proceeding Under $185 of the Atomic Energy Act (42 USC S2235) a con-struction permit must contain a latest completion date for the facility. That section provides further that:
"Unless the construction or modification of the facility is completed by the completion date, the construction permit shall expire, and all rights thereunder be forfeited, unless upon good cause shown, the Commission extends the completion date."
NIPSCO's construction permit was issued on May 1, 1974, and set September 1, 1979 as the latest completion date for the Bailly plant. On February 7, 1979, NIPSCO applied for an amendment to its construction permit to extend the latest completion date,
- See letter from E.M. Shorb to Harold R. Denton, dated February 7, 1979, requesting an amendment stating a neu latest completion date of September 1, 1985. By letters dated August 31, 1979 and November 26, 1980, NIPSCO subsequently changed its request to state new latest dates of December 1, 1987 and December 1, 1989, respectively.
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v and on February 27, 1979, BPI, as one of the parties comprising PCCI and on their behalf, filed a request for a hearing on that application.
In November, 1979, the NRC published a Notice of Opportunity for Hearing on Construction Permit Extension, 44 Fed. Reg. 69061 (November 30, 1979). In response to the notice, BPI filed a petition for leave to intervene, asserting that the amendment sought by NIPSCO should not be granted. The Licensing Board, on August 8, 1980, issued its Order following Special Prehearing Conference, allowing PCCI to intervene and partially delineating the scope of the proceeding. There followed extensive and intensive litigation activity, including voluminous and contested discovery. After repeated requests by BPI,
- in July 1981 the NRC staff finally articulated its position that the permit extension sought by NIPSCO should be granted and that no new or supplemental Environmental Impact Statement was required by the Iational Environmental Policy Act, 42 USC 54321, et seq.
B. Short Pilings Proceeding l
In November 1978, BPI on behalf of PCCI filed a petition with l the NRC asserting that NIPSCO was attempting to change plans for
! the foundation of the plant from pilings extending to bedrock (as l
described in the PSAR) to substantially shorter pilings. BP1 l
l
- E.g., Joint Supplement to Requests for Hearing (June 29, 1979);
Transcript of Prehearing Conference at pp. 282-305 (March 13,1980);
Porter County Chapter Intervenors' Motion Concerning Environmental Impact Statement (Augus t 25, 1980); PCCI's Motion to Suspend Litigation Proceedings (November 13, 1980).
A - - ,
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. 4 contended that the change constituted in fact and in law a request for a construction permit amen dment , and that under the terns of 5189 of the Atomic Energy Act, 42 USC $2239, a hearing was re-quired. In December 1979, the Commission denied the request for a hearing. PCCI filed a petition for judicial review with the United States Court of Appeals for the District of Columbia Circuit.
That court reversed the Commission and remanded the cause to the NRC for a hearing. State of Illinois, et al. v. NRC, No. 81-1131 (D.C. Cir. July 1, 1981). Af ter receipt of the mandate, the Com-mission sent to the Federal Register an " Amended Notice of Oppor-tunity for llearings (Pilings)," 46 Fed. Reg. 43326 (August 27, 1981),
dated August 21, 1981, stating that the pilings issue would be heard in the ongoing construction permit extension proceeding.
On that same date the Commission issued an order forbidding NIPSCO from installing pilings until completion of the pilings proceeding.
Because of NIPSCO's cancellation of the plant on August 26, 1982, no petitions for hearing were filed. Throughout the proceedings, the NRC staff before the Commission, and the Commission before the Court, took the position that no hearing was required, posi-tions which were not substantially justified.
It is evident that NIPSCO and the staff began discussions of altering the foundation plans shortly after the construction permit was issued. Frem the very first indication of that change, BPI has taken the position that an amendment, together with the con-comitant hearing, were required by the Atomic Energy Act before that change could be effected.
Further, the NRC staff had the short pilings proposal under n
consideration for an inordinately long time. Plans were formally submitted by NIPSCO to the staff in March, 1978, but the staff did not release its report on the substance of that plan until three years later, on March 5, 1981. The staff concluded that the proposal was acceptable. Neither the failure to issue its evalua-tion until three years after submittal nor the acceptability of the plan were substantially justified.
C. Termination of Proceedings On August 26, 1981, NIPSCO announced cancellation of the Bailly plant and on that same date filed a motion to terminste all related proceedings. The Board finally granted the motion on May 7, 1982, terminating both the construction permit extension and short pilings proceedings. NIPSCO was ordered to implement the site restoration plan produced by negotiation and agreement among PCCI, NIPSCO and the NRC staff. The termination order also requires reporting by NIPSCO and the staff, and inspections of the site by NIPSCO, the staff, and represcntatives of BPI and the other invervenors.
III. REQUIREMENTS OF Tile EAJA A. The proceedings were pending on the effective date of the act.
The EAJA took effect on October 1, 1981 and, pursuant to Section 208, is to
". . apply to any adversary adjudication, as defined in section 504(b)(1)(C) of title 5, o
m United States Code,I *Iand any civil action or adversary adjudication described in section 2412 of title 28, United States Code, which is pend-ing on, or commenced on or after, such date."
Even though NIPSCO had filed its Motion to Terminate Proceedings before that date, both the construction permit extension pro-cceding and the short pilings proceeding were "pending" on the effective date and thereby come within the terms of the Act.
Under an analogous statute, the Civil Rights Attorneys Fees Act, (42 USC $1988), an action is considered "pending" if, on the effective date of the Act, there was no final judgment pur-porting to dispose of all issues, and there was " active contro-versy." Once these conditions are satisfied, that Act applies to the entire case, including to services rendered prior to that date. Northeross v. Board of Educ. , 611 F.2d 624, 634-35 (6th Cir. 1979), cert, denied, 447 U.S. 911 (1980) . See also Robinson v. Kimbrough, 652 F.2d 458, 464 (5th Cir. 1981). The
" active controversy" need not be the ultimate issue of.litiga-tion, see, e.g. , David v. Travisono, C21 F.2d 464, 467 (1st Cir.
1980) (per curiam) and may even include only the issue of attor-neys fees, Northeross, supra, 611 F.2d at 634, Hartman v. Gaffney, 446 F.Supp. 809, 811 (D. Minn. 1977).
- Five USC $504(b)(1)(C) defines " adversary adjudication" as:
. . . an adjudication under section 554 of this title in which the position of the United States is represented by counsel or otherwise, but ex-cludes an adjudication for the purpose of estab-lishing or fixing a rate or for the purpose of granting or renewing a license . . ."
a
7-Of course, there was no final judgment on the effective date of the EAJA, for that judgment was not entered until May 7, 1982. Issues pending before the. Licensing Board in the construction permit extension proceeding on October 1 indeed involved active controversy: what sort of site restoration was to be done; whether the Licensing Board would retain jurisdic-tion pending that restoration; and whether the dismissal was to be with or without prejudice. There can be no question that the construction permit extension proceeding was pending on October 1, 1981. Indeed, the very purpose of the May 7 Order was to remove all pending issues from this Board's docket.
Similarly, there can be no question that the short pilings proceeding was also pending, as the NRC staff had admitted in its pleadings. See, e.g., NRC Staff Response to' Northern Indiana Public Service Company's Motion to Terminate Proceedings, filed September 15, 1981. This proceeding is, of course, the same proceeding initiated by the original Petition by BPI in November of 1978, and the hearing which was to be held, if NIPSCO had not cancelled the project, would have been based on the allegations of that petition.
B. BPI is a prevailing party in both proceedings.
BPI's goal, whether as intervenor in the construction permit ex-
. tension proceeding, or as initiator of the short pilings pro-ceeding, has always been the same: that the Bailly nuclear plant not be built. This goal was realized upon NIPSCO's cancellation of the plant, thereby satisfying the Act's require-ment that awards be made to a " prevailing party."
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-n-The legislative history of the EAJA, II.R. Rep. No. 96-1418, 96th Cong., 2d Sess. (1980), reprinted in [1980] U.S. Code Cong. &
Ad. News 8631, et seq., makes clear that the interpretation of the term " prevailing party" is to be consistent with the case law developed under existing fee award acts, and a brief examina-tion of that case law leaves no doubt that BPI is indeed such a party.
Cases under the Civil Rights Attorney's Fees Act, 42 USC
$1988, have consistently allowed recovery by intervenors as " prevail-ing parties." See, e.g., Seattle School Dist. v. Washington, 633 F.2d 1338, 1349 (9th Cir. 1980), prob. juris. noted.
50 II.S .L.W. 3278 (Oct. 13, 1981); United States v. Board of Edu-cation, 605 F.2d 573, (2d Cir. 1979); Morgan v. McDonough, 511 F.Supp. 408, 414 (D. Mass. 1981). Further, the NRC regula-tions provide party s tatus to intervenors. 10 CFR 52.714(g).
A party need not win on the merits in order to be " prevail-ing." The Conference Report, at p. 8637, states:
"It is the Committee's intention that the interpretation of the term . . be consist-ent with the law that has developed under existing statutes. .Thus, the phrase ' pre-vailing party' should not be limited to a victor only af ter entry of a final judgment following a full trial on the merits."
The Report at pp. 8656-57 gives the example of prevailing party status in the case of the plaintiff's voluntary dismiosal l
9 of a groundless complaint, citing Corcoran v. Columbia Broad-casting System, 121 F.2d 575 (9th Cir. 1974).
In other fee awards acts, similar results obtain. Where a complaint is dismissed as moot because defendant begins to comply with the applicable law, fees may be awarded so long as there is a causal relationship between the suit and the de-fendant's compliance. See, e.g., American Constitutional Party
- v. Munro, 650 F.2d 184,188 G th Cir. 1981); Iranian Students Ass'n v. Sawyer, 639 F.2d 1160, 1163 (5th Cir. 1981) ; Handi- !
capped Federation v. Andre, 622 F.2d 342 (8th Cir. 1980).
Because of the structure of NEC license amendment proceed-ings, it is not possible to characterize NIPSCO as either plain-tiff or defendant. Its actions, though, in cancelling the plant and moving to terminate the proceedings, have elements of both a plaintiffs' voluntary dismissal of a groundless complaint and a defendant's voluntary compliance with applicable law in the face of a suit to force such compliance. Like a plaintiff in Corcoran, NIPSCO capitulated to avoid having to proceed further to prove its case. Like the defendant who voluntarily brings it-self into compliance with the law when faced with a proceeding it could not win, NIPSCO gave up rather than go to hearing. This is especially obvious in the short pilings proceeding, for NIPSCO's decision came within days of the issuance of notice of opportunity for hearing and concomitant order prohibiting piling installation. Even NIPSCO's press release announcing the can-cellation cited opposition to the plant as a factor.
An alternative analysis was used by the court in Bonnes v.
J. _ _ - n_ = .
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Long, 599 F.2d 1316, 1319 (4th Cir. 1979), a case arising under 42 USC $1988. The " precise factual / legal condition that the fee claimant has sought to change" should be viewed as a " benchmark";
if the fee claimant's efforts " contributed in a significant way" and involved "an actual conferral of benefit or relief from bur-den when measured against the benchmark condition," an award is appropriate. Under this alternative analysis also, BPI is a prevailing party. In the construction permit extension proceed-ing, BPI, on behalf of PCCI, sought a ruling that the permit not be extended, thereby causing it to expire and stopping the plant.
Although no such ruling was made because of NIPSCO's capitulation, BPI's activities certainly contributed in a significant way to a change from the benchmark. In the short pilings proceeding, the petition to the Commission and the appeal sought to enforce BPI's right to a hearing on the merits of the plan, and the Com-mission's subsequent orders on remand made that condition an im-minent reality. Indeed, this Board has described its termination of the proceedings as having "the effect . . . equivalent to a determination on the merits against the dismissing party . . ."
Memorandum and Order (Issuing Proposed Order Terminating Proceed-inn, dated April 12, 1982, at p. 8.
Case law developed under other fee statutes makes it clear that no inquiry into the merits of the litigation is necessary, or even desirable, in order to term the plaintiff a " prevailing party." E.g., Dawson v. Pastrick, 600 F.2d 70, 78 (7th Cir.
1979). The court in C0YOTE v. Roberts, 502 F.Supp 1342, 1349-50 (D.R.I. 1980), used as a test whether a purported claim is sub-1
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stantial enough to confer subject matter jurisdiction on the federal court. This standard is consistent with, in fact even l lower than, the NRC's requirement that only contentions with specificity and basis may be admitted. 10 CFR S2.714(b). That test has, of course, been satisfied by the admission of BPI's contentions.
C. Amount of Fees and Expenses Compensible Once it is determined that BPI is a " prevailing party" fees for all work done in connection with the two proceedings are to be awarded. EAJA 9203, 5 USC 5504(a)(1), quoted supra.
See Northeross v. Board of Educ., 611 F.2d at 636 ("so long as the party has prevailed on the case as a whole, the district courts are to allow compensation for hours expended on unsuccess-ful litigation, unless the positions asserted are frivolous or in bad faith."
The Act provides that the amount of fees awarded shall be " based upon prevailing market rates for the kind and quality of services furnished" except that there is a maximum rate of
$75 per hour. EAJA S203(b)(1)(A) . The two attorneys for whose services a fee award is sought, Robert J. Vollen and Jane M.
Whicher, have conservatively reconstructed the hours they spent.
on the Bailly proceeding at 736 and 2597.5, respectively.*
- Included are fees for work done in the construction permit ex-tension proceeding before the NRC, and the short pilings pro-cceding before both the NRC and the United States Court of Appeals for the District of Columbia. Fees for those later services are, of course, equally compensible, for they were (footnote continued on next page)
- G-See Affidavits attached to Application. Since neither has a bill-ing rate, a reasonable estimate of the market rates for their serv-ices is set forth in the affidavit of Robert L. Graham, an attorney familiar both with market rates for attorneys fees in Chicago, Illinois, and with the kind and quality of the services furnished.
See affidavit of Robert L. Graham, altached to application. Since the market race for both attorneys is in excess of $75 per hour, that statutory maximum should be applied, as follows:
Robert J. Vollen, 736 hours at $75 per hour = $ 55,200.00 Jane M. Whicher, 2597.5 hours5.787037e-5 days <br />0.00139 hours <br />8.267196e-6 weeks <br />1.9025e-6 months <br /> at $75 per hour = $ 194,812.50 Total = $ 250,012.50 In addition, the EAJA provides for payment of " reasonable expenses." See 52 03 (b) (1) (A) . As reflected in the affidavit of Robert J. Vollen, BPI has incurred expenses in the anount of
$1841.45, which should be reimbursed to it.
CONCLUSION BPI meets all requirements for an award of fees and expenses in the total amount of $251,853.95. Accontingly, this Board should continued fron pre onge
"(in connection with,qpdine, and dn in)tegral part of, BP1's enforce-ment of its right to participate in a hearing on the merits of the foundation plan. See Chrapliwy v. Uniroyal, Inc., 670 F.2d 760 (7th Cir. 1982); Sullivan v. Commonwealth of Pennsyl-vania, 663 F.2d 443 (3rd Cir. 1981); 5 USC 5504(a)(1) .
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promptly enter its order directing payment in that amount.
DATED: June 4, 1982 Kob er t J . Vgle'n' '
dat M . RJbNeb ,
Jane M. Whicher' Attorneys for BPI Robert J. Vollen Jane M. Whicher 109 North Dearborn Street Chicago, Illinois 60602 (312) 641-5570
J-UIJITED STATES OF AIIERICA NUCLEAR REGULATORY CO:21ISSION BEFORE TliE ATOMIC SAFETY AI:D LICENSING BOARD In the Matter of )
)
I;0RTiiERIJ IIiDIANA PUBLIC ) Docket I;o. 50-367 SERVICE COIIPA!;Y )
)
(Bailly Generating Station, )
liuclea r- 1) )
CERTIFICATE OF SERVICE I hereby certify that I have served copics of: Application for Award of Fees and Expenses Under the Equal Access to Justice Act (and attached Affidavits of Robert J. Vollea, Jane M. Wicher and Robert L. Graham) and Memorandum of Lau In Support of Application for Award of Fees and Expenses Under the Equal Access to Justice Act on each of the persons listed on the attached Service List by causing them to be deposited in the U . S . nut il , first class postage prepaid, this 4th day of June, 1982.
June 4, 1982 Robert J. Vollen Jane M. Ubicher By: CL L . Q3A8_ ,
Jane M. Whicher At to rneys for Business and Professional People Robert J. Vollen for the Public Interest Jane M. Whicher c/o BPI 109 North Dearborn Suite 1300 Chicago, IL 60602 (312) 641-5570 m
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SERVICE LIST Herbert Grossman, Esq. Gecrge & Anna Grabowski Administrative Judge 3820 Ridge Road Atomic Safety & Licensing Highland, Indiana 46322 Board Fanel U.S. Nuclear Regulatory Dr. George Schultz Commission 807 E. Coolspring Road Washington, D.C. 20555 Michigan City, Indiana 46360 Dr. Robert L. Holton Administrative Judge School of Oceanography Oregon State University Co rvallis , Oregon 97331 Mr. Mike Olszanski Mr. Clifford Mezo Local 1010 - United Steelworkers Dr. J. Venn Leeds of America Administrative Judge 3703 Euclid Avenue 10807 Atwell East Chicago, Indiana 46312 Ho us ton , Texas 77096 Stephen H. Lewis, Esq.
Office of the Executive Legal Director U.S. Nuclear Regulatory Commissior Maurice Axelrad, Esq. Washington, D.C. 20555 Kathleen H. Shea, Esq.
Lowenstein, Newman, Reis, Anne Rapkin, Asst. Attorney Gener, Axelrad and Toll John Van Vranken, Environmental 1025 Connecticut Ave., N.W. Controi Division
'Ja s hing t on , D.C. 20036 188 W. Randolph - Suite 2315 Chicago, Illinois 60601 William H. Eichhorn, Esq.
Eichhorn, Eichhorn & Link Docketing & Service Section (3) 5243 Hohman Avenue Office of the Secretary Hammond, Indiana 46320 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Diane B. Cohn, Esq.
William P. Schultz, Esq. Stephen Laudig, Esq.
Suite 700 21010 Cumberland Road 2000 P Street, N.W. Noblesville, Indiana 46060 Washington, D.C. 20036 Atomic Safety & Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555