ML20126A765
| ML20126A765 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Perry  |
| Issue date: | 11/18/1992 |
| From: | Goldberg R, Hjelmfelt D, Strother C CLEVELAND, OH |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#492-13451 91-644-01-A, 91-644-1-A, A, NUDOCS 9212210214 | |
| Download: ML20126A765 (13) | |
Text
.
/3 @l C Xt411.0 uttii C UNITED STATES OF AMERICA BEFORE THE e
'92 C3 ~0 I,g c#
NUCLEAR REGULATORY COMMISSION
)
In the Matter of
)
)
01110 EDISON COMPANY
)
Docket Nos. 50-440-A (Perry Nuclear Power Plant,
)
50-346-A Unit 1, Facility Operating
)
License No. NPF-58)
)
)
(Suspension of Tile CLEVELAND ELECTRIC
)
Antitrust Conditions)
ILLUMINATING COMPANY
)
Tile TOLEDO EDISON COMPANY
)
(Perry Nuclear Power Plant,
)
ASLBP No. 91-644-01-A Unit 1, Facility Operating
)
License No. NPF-58)
)
(Davis-Beseo Nuclear Power
)
November 18, 1992 Station, Unit 1, Facility
)
Operating License No. NPF-3)
)
)
LIMITED PETITION FOR REVIEW OF CITY OF CLEVELAND, OHIO, 3F Tile NOVEMBER 18, 1992 DECISION OF TliE ATOMIC SAFETY AND LICENSING BOARD Pursuant to Section 2.786(b)(1) of the Nuclear Regulcto-ry Commission's (" Commission") Rules (10 C.F.R.) the City of Cluveland, Ohio (" Cleveland"), Intervenor, files this Petition for Review only of that portion of to the Atomic Safety and Licensing Board's November 18, 1992, Decision which denied application of the L
preclusion doctrines of " law of the case", "res judicata", " collat-eral estoppel" and "laches" (Decision, at 10 to 20 and 70 to 71, L
Ordering Paragraph 1) to the application vf Ohio Edison Company i
("OE") and the joint application of the Cleveland Electric Illumi-nating Company ("CEI") and the Toledo Edison Company ("TE") (col-lectively " Applicants").
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2-I.
GROUNDS FOR THIS PETITION FOR REVIEW
. (1)
The Board's legal conclusions with respect to each of the preclusion issues enumerated above are contrary to estab-lished law.
(2)
The Board's Decision denying Cleveland's preclusion issues presents substantial and important questions of. law.
II.
SUMMARY
OF THE BOARD'S DECISION ON THE PRECLUSION ISSUES' (a)
Law of the Case This doctrine bars re-litigation of the same issue in subsequent stages of the same proceeding.
Cleveland asserts that the amundments" are clearly one part of an ongoing, sequential, multistage license proceeding that ic the same proceeding in which the conditions were originally imposed, citing the Appeal Board's decision in the Parley operating license proceeding (Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 and 2), ALAB-182, 7.
AEC 210, 215, n. 7, remanded on other' grounds, CLI-74-12, 7-AEC 203 (1974)) and South Texas antitrust proceeding (Houston Lighting and
, Power Co. (South Texas Project Units 1 and 2, LBP-76-41, 4 NRC 571, 575 (1976)).
Cleveland also relied on the circumstance that.he
- Commission has used the same docket number for this proceeding as for the construction: permit and operating license proceeding.
The Board determined that the applications for suspension of the antitrust license conditions. involved a new proceeding,-caparate from the earlier license-proceedings.
The Board further noted that-
- the claim as to_the identity of pr ceedings was rejected by the Board in its Prehearing Confermco order.
The Board. asserted that i
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- this ruling became the law of the case (34 11RC at 244, n. 43).
(b)
Res Judicata and Collateral Estoppel
{
These preclusion doctrines are somewhat" related.
Both i
I doctrines bar re-litigation of the aamo substantive issue by the
)
same parties.
Ilowever, unlike collateral estoppel which requires that the issue was actually litigated, res judicata applies if the i
issue-could have been litigated.
The Board held that the issue litigated in the licensing proceeding was not the same as the
" bedrock" legal issue, was not addressed or decided by the Licens-ing Board or Appeal' Board, and the Applicants were not under an obligation to litigate the ' bedrock" legal issues during the earlier licensing proceeding.
The Board further held that Appli-cants assert changed circumstances as a foundation for-their
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applications, which is an exemption to the application of both doctrines.
Thus, the Doard found neither doctrine bars litigation of the " bedrock" legal issue at this time.
(c)
Laches Laches is an equitable doctrine that bars the late filing of a claim if a party would be prejudiced by reliance on the right challenged by-the claimant and the evidence shows the delay was unreasonable.
The Board noted that the Applicants stressed the importance of commercial operating cost data in reaching their conclusion of the high cost of the reactors.
Consequently, since the Perry facility did not begin operation until November 1987, the Board determined that all the essential information backing the-application'regarding that facility was not available until then.
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delayed.
As for Davis-Desse, although the application was filed 10 he Board declined to invoke this years after commercial operation, equitable doctrine to bar litigation of a portion of the applica--
tion requests.
j III.
STATEMENT THAT MATTERS RELATING TO THE PRECLUSION DOCTRINES WERE RAISED
[
The Board's decision conclusively establishes-that the preclusion issues were raised before the Board.
The Board's reasoning on the facts and the law on the preclusion issues are fatally flawed.
Cleveland raised these issues before the Board on Cleveland's cross-motion for summary disposition and Cleveland's reply to Applicants' and Staff's arguments on the preclusion issues, as shown below.
IV.
STATEMENT SHOWING WHY THE BOARD'S DECISION
[
ON THE PRECLUSION ISSUES IS ERRONEOUS (a)
Law of the Case The decision of the Board rejecting "the law of the case" as precluding Applicants' applications is based solely on the l
fact that the doctrine applies only when the issue has been raised and decided in the same proceeding.
The Board ruled that this proceeding is a_ separate proceeding.
j Cleveland does not disagree that the " law of the case" L
l doctrine precludes re-litigation of the same losue in the'same l'
l procceding.-
See-Cleveland's Motion for Summary _ Disposition at 67-and the casos there cited.
Cleveland disagrees with_the Board's Decision _that this;is a separate proc,'eding, distinct from the
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proceedings that resulted in the imposition of the antitrust 11censo conditions.
The Board's Decision also concludes that it ruled in a Prehearing Conferenco Order that this is a separate proceeding which ruling is the " law of the case".
t The Board's Decision is in error.
The law of the caso applies to the issue litigated in the licensing stages, namely the "bodrock" legal issue.
The Board's Decision that this is a sepa-rate proceeding, articulated first in the Board's Prehearing Conference Order of October 7, 1991 (LBP-91-38) and reiterated in i
the Decision of !!ovember 18, 1992, is not a final decision of the Commission.
It is subject to Commission review.
Consequently, the Board's position is not the " law of the case".
The present applications are clearly part of the same proceeding in which the conditions were imposed..tiot simply because they were filed in the same dockets and bear the same docket designations, but, also, because the effort to delete the antitrust conditions are part and parcel of the same proceeding that produced those conditions.
The judicial policy underlying any preclusion doctrino is that the doctrine cannot be defeated by bringing a separate action to avoid the adverse determination "on an issue identical in substance to the one he subsequently seeks to raise."
Atomic F.S.
& L. Ass'n v.
- Solimino, U.S.
115 L.Ed.2d 96, 104 (1991) (emphasis supplied).
The Decision's efforts to denigrato-the decision _of the Boards in the.Farley and South Texas cases are unavailing.
They do not' detract from the state-ments thoro made by the Appeal Board in Farley and the Licensing-Board in South Texas (See Decision at 13-15) which support-Cleve-M
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6-t land's position.
Significantly, the Board's Decision is silent with respect to Seacoast Anti-Pollution, Etc. v.
NRC, 690 F.2d l
1025, 1026 (D.C. Cir. 1982) and Power Reactor Develop. Co. v.
Electrical Union, 367 U.S.
396, 405, 407, 6 L.Ed.2d 924, 930, 931 (1961), cited by Cleveland, which support its position.
(b)
Collateral Estoppel and Res Judicata The question of whether the applications are part of the same antitrust review proceedings or a separate proceeding is irrelevant to the application of collateral estoppel, as acknowl-edged by the Board.
Decision at 15-16.
Collateral estoppel requires that the issue must have been actually litigated,1was necessary to the outcome of the first action, and the party against whom the doctrine is asserted must have been a party or in privity with a party to the earlier litigation.
Commonwealth Edison Co.
(Braidwood Nuclear Power._ Station, Unit 1 and 2), LDP-85-ll, 21 NRC j
609, at 620 (1985).
The Board's Decision erroneously concludes that the
" bedrock" legal issue was not raised and decided during the carlier-i
-licensing proceeding.
Decision at 17.
The fact is that the very same claim that is inherent in the " bedrock"= legal issue wast advanced by the Applicants to the Appeal Board in the construction-a permit stage of the antitrust review-license proceedings.
The Applicants there argued, and relied on the testimony ofctheir?
c witness Dr. Pace, as they do' in-this stage of the proceeding?(See letter dated July 24, 1990 from counsel for Ohio Edison to-Thomas l
E. Murley, Director, Office of Nuclear-Reactor Regulations and~Dr.
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Paces' attached affidavit), that unless the nuclear power has a competitive cost advantage the antitrust license conditions cannot be imposed.
Licensees' Brief on Appeal at 127, n.
147.
- Indeed, there is no escape from collateral estoppel on a claim of changed circumstances.
At that time the Applicants pointed to various exhibits and testimony that the cost advantage of nuclear power had just about disappeared.
Id. at 127.
They noted that a small coal-fired plant could generate cheaper power than the proposed nuclear facilities.
Id. at 132, n.
155.
Indeed, in a lengthy analysis, the Board's Decision (Decision at 33 to 38) itself discloses that the Licensing and Appeal Boards did confront and reject the very same contentions which are inherent in the " bedrock" legal issue decided by the
- Board, i.e.,
that a competitive cost advantage of the nuclear power is the sino qua non of the Commission's authority to impose anti-trust license conditions.
Unlike collateral estoppel, res judicata,. applies even if the issue was not, but could have boon, raised in the first action.
As shown above, the issue not only could have been raised, but was actually raised, litigated and rejected.
Consequently, the doctrine of res judicata precludes the applications.
t (d)
Laches i
Hith respect to the Davis-Besse licence,.the Board's Decision literally concedes that CEI and TE are guilty of laches in their application to delete the antitrust. license conditions. -The application was filed eleven years after the issuanco of the u
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operating license and ten years after commercial operation when the capital and operating costs were certainly known.
Cleveland in its declulons with respect to its electric system relied on the anti-trust conditions.
Yet, the Board in the face of a clear case of laches declined to deny the separate application of CEI and TC which alone involves Davis-Besse.
The Application filed by CEI and TE was filed months after OE's application which does not involve Davis-Besse.
Yet, the Board declined to apply laches to CEI and TE's applicatton with respect to Davis-Besse on the ground that it would not "bar litigation of a particular portion of the amendment requests" (Decision at 20), even though the applications were clearly separabic.
There is no fact, no law, no equity that can justify the Decision's refusal to apply laches to the Davis-Besso antitrust licenso conditions.
As for the Perry nuclear unit's antitrust license conditions, the Decision is in error in stating that OE's applica-tion was filed in November 1987 simultaneously with commercial operation of that generating unit.
OE's application was filed in September 1987.
This error is of paramount importance in the Board's rejection of laches vis-a-vis Perry.
The Board's Decision rests on the apparent acceptance of the Applicant's bare and unsupported assertion of "the importance of commercial operating cost in reaching their conclusion about the high cost of the reactors".
Decision at 19-20, emphasis the Decision's.
"Conse-quently", the Board concludes, "because the Perry facility did not begin operation until 1987, all the essential information backing their amendment requests regarding that facility was not, contrary
. to Cleveland's claims, available by 1977."
Based on this error that the application was filed only when cost information was available (i.e., at commercial operation) and the Board's assump-tion respecting the truth of Applicants' bare assertion, the Board concludes the applications regarding Perry "thus were clearly not unreasonably delayed."
Decision at 20.
The fact, ignored by the Board, is that it is the capital cost of construction, running into billions of dollars, that is the_ major determinant of the ultimate costs of the power.
This cost was available, as Applicants admitted, with completion of-construction prior to 1984.
The significant rise in the level of the Perry capital costs were known even earlier than 1984.
By 1980 the estimated costs of Perry Units 1 and 2 had risen from $1.234 billion in 1973 to $3.890 billion.
All of the events alleged by'OE as responsible for these rising capital costs-(stringent environ-mental laws, the Clean Air Act, etc.)-were in existence.in the early 1970s.
Clearly, the Board's disposition of laches is seri-ously flawed and not sustainable.
IV.
STATEMENT WHY COMMISSION REVIEW SHOULD BE EXERCISED 1
i Cleveland fully supports-the Board's disposition of the E
l
" bedrock" legal issue'.
The Board has' correctly _ interpreted Section 1
105..
However, the preclusion issues are substantial and important
_ questions of law which_have been__shown to be erroneously decided.
Cleveland believes-that the Board's flawed disposition of the preclusion issues stemsLfrom the Board's erroneous view that it would be precluded ~from reaching the " bedrock" legal issue if-it 8
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i 10 -
had ruled in Cleveland's favor on the preclusion issues.
(Decision at 4).
On the contrary, the Board or the Commission could rule in favor of Cleveland's position on the preclusion issues which would i
l bar the applications and also determine that the " bedrock" legal j
issue mandates that the applications be denied on the merits.
i i
Cleveland seeks review of that portion of the Decision 1
dealing with the preclusion issues because it believes that these are important questions of law which should and can be correctly decided without disturbing the remaining portion of_the Board's ruling on the " bedrock" legal issue.
WHEREFORE, Cleveland's Petition for Review should be granted.
i Respectfully submitted,
~ hpby WhlH~
,J. -
Danny_R. Williams Reuben Goldberg l
Director of. Law Channing D. Strother, Jr.
j June-W. Wiener David C. Hjelmfelt i
Chief Assistant Director Goldberg, Fieldman & Letham, P.C.
of Law
.1100 Fifteenth Street, N.W.
William T.
Zigli Washington, D.C.
20005 Assistant Director-of Law LTelephone (202) 463-8300 City Hall, Room 106-601 Iakeside Avenue Cleveland,-Ohio 44115 Telephone (216) 664-2000 Attorneys for City of-Cleveland, Ohio December 8, 1992 l
~
UNITED STATES OF AMERICA D iliU NUCLEAR REGULATORY COMMISSION N
BEFORETHEATOMICSAFETYANDLICENSINGbOkf[D-8 P 6 33
.i*_,
o ".
tuch:
q ', [f ' II uA
)
In the Matter of
)
)
OHIO EDISON COMPANY
)
(Perry Nuclear Power Plant,
)
Docket Nos. 50-440-A Unit 1, Facility Operating
)
50-346-A License No. NPF-50)
)
)
THE CLEVELAND ELECTRIC
)
(Suspension of ILLUMINATING COMPANY
)
Antitrust Conditions)
THE TOLEDO EDISON COMPANY
)
(Perry Nuclear Power Plant,
)
Unit 1, Facility Operating
)
ASLBP No. 91-644-01-A License No. NPF-58)
)
(Davis-Besse Nuclear Power
)
Station, Unit 1, Facility
)
Operating License No. NPF-3)
)
)
CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing LIMITED PETITION FOR REVIEW 0F CITY OF CLEVELAND, OHIO, OF_THE NOVEMBER 18, 1992 DECISION OF THE ATOMIC SAFETY AND LICENSING BOARD has been served upon the parties or their attorneys on the attached Service List, this 8th day of December, 1992, by hand delivery to those persons located in Washington, D.C.
and Maryland and by Federal Express to persons located in other states, r\\ ake.' -
/NfMe ReubenGoldberg[
9
--o.m-u.-
UNITED STATES OF AMERICA BEFORE THE NUCLEAR REGULATORY COMMISSION
)
In the Matter of
)
)
OHIO EDISON COMPANY
)
Docket Nos. 50-440-A (Perry Nuclear Power Plant,
)
50-346-A Unit 1, Facility Operating
)
License No. NPF-58)
)
)
(Suspension of THE CLEVELAND ELECTRIC
)
Antitrust Conditions)
ILLUMINATING COMPANY
)
THE TOLEDO EDISON COMPANY
)
(Perry Nuclear Power Plant,
)
ASLBP No. 91-644-01-A Unit 1, Facility Operating
)
License No NPF-58)
)
(Davis-Besse' Nuclear Power
)
November-18, 1992 Station, Unit 1, Facility
)
Operating License No. NPF-3)
)
)
SERVICE LIST Joseph Rutherg, Esq.
Office of Commission Appellate Office of the General Counsel Adjudication U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission One White Flint No, Rm. D19
_4350 East-West Highway-11555 Rockville_ Pike Bethesda,_MD 20814 Rockville, MD 20852 Anthony J.-Alexander, Esq.
Janet Urban, Esq.
Vice-President and General U.S. Department of Justice Counsel Antitrust Division Ohio Edison Company-Transportation,-Energy and 76 South Main Street Agriculture Section Akron, OH 44308
-Room 9816-JCB 555 4th Street, N.W.
Gerald Charnoff, Esq.
Washington, D.C.
20001 Deborah B.~Charnoff,-Esq.
Margaret'S. Spencer, Esq.
David R. Straus, Esq.
.Shaw, Pittman,_Potts &
Spiegel.& McDiarmid Trowbridge 1350 New York Avenue, N.W.
2300 N Street, N.W.
Suite 1100 Washington, D.C.
20037 Washington, D.C.
20005-4798
2-James P. Murphy, Esq.
D. Biard MacGuineas, Esq..
Colleen _A.
Conry, Esq.
Volpe, Boskey and Lyons Squire, Sanders & Dempsey 918 16th Street, N.W.
l 1201 Pennsylvania Avenue, N.W.
Suite 602 Post Office Box 407 Washington, D.C.
20006 Washington, D.C.
20044-0407 Mr. Philip N. Overholt Kenneth L.
- Hegemann, P.E.
Office of Nuclear Plant President Performance American Munici,al Power-Ohio, Office of Nuclear Energy l
Inc.
U.S. Department of Energy, 601 Dempsey Road NE-44 P.O. Box 549 Washington, D.C.
20585
. Wes terville, OH 43081 Steven R. Hom, Esq..
Administrative Judge Office of the General Counsel G.
Paul Bollwerk, III U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Board One White Flint No, Rm. 15D10 U.S. Nuclear Regulatory 11555 Rockville Pike Commission, Rm. E402A Rockville, MD 20852 4350 East-West Highway Bethesda, MD 20814 John Bentine, Esq.
Chester, Hoffman, Wilcox &
Sherwin E. Turk, Esq.
Saxbe Office of the General-Counsel 17 S.-High Street U.S. Nuclear Regulatory.
Columbus, OH '43215 Commission One White Flint No, Rm. 15H2O Gregg D. Ottinger, Esq.
11555 Rockville Pike
' John P. Coyle, Esq.
Rockville, MD. 20052 Duncan & Allen 1575 Eye Street, N.W.
Administrative _ Judge
. Suite 300.
Charles Bechhoefer Washington,-D.C.
20005.
Atomic Safety and Licensing Board David A.-Lambros, Esq.-
U.S. Nuclear Regulatory
. Law Director Commission, Rm. E413 City of Brook Park 4350 East-West Highway 6161 Engle Road
'Bethesda, MD 20814 Brook Park, OH 44142 Administrative Judge Marshall E.
Miller,-Chairman Atomic = Safety and Licensing Board 1920 South' Creek' Blvd.
Spruce Creek-Fly-In Datona-Beach, FL.32124 u
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