ML20086R838

Brief on Issues Re Liability for Fees & Expenses.Certificate of Svc Encl.Related Correspondence

ML20086R838
Person / Time
Site:	05000463, 05000464
Issue date:	02/27/1984
From:	Irwin D HUNTON & WILLIAMS, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20086R828	List: ML20086R825 ML20086R838
References
76-300-01-CP, 76-300-1-CP, ISSUANCES-CP, NUDOCS 8403010229
Download: ML20086R838 (41)

Text

-

,GNDENCE A g , , ; - J Ja ' -

00 TED US c UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '84 FEB 29 A10.25

)

w n ,. . 9 k}

Before the Atomic Safety and Licensing Board.f ,'ft fj ut El N

[j In the Matter of ) ASLBP Docket No. 76-300-01 CP

)

PHILADELPHIA ELECTRIC COMPANY ) (NRC Docket No. 50-463-CP S

) 50-464-CP)

(Fulton Generating Station, )

Units 1 and 2) )

A A

PHILADELPHIA ELECTRIC COMPANY'S Q BRIEF OH ISSUES RELATING TO j LIABILITY FOR FEES AND EXPENSES Tj a

M u

e Md h!]

N <

Ed Donald P. Irwin

%Wj Marcia R. Gelman El Hunton & Williams k?

- 707 East Main Street P.O. Box 1535 di Richmond, Virginia 23212 b

Ill 804f 788-8357 fd l0 i

N Of Counsel: Eugene J. Bradley l

Philadelphia Electric Company d

a, 2301 Market Street Philadelphia, PA 19899 W]

V-k Ni DATED: February 27, 1984

\d i 0403010229 840227

@d A PDR ADOCK 05000463 PDR Os o 1;$

{ 'i __

l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before-the Atomic 3afety and Licensing Board lIn-the: Matter'of ) ASLBP Docket No. 76-300-01 CP

)

PHILADELPHIA ELECTRIC COMPANY ) (NRC Docket No.-50-463-CP

) 50-464-CP)

(Fulton Generating' Station, .)

' Units 1 and 2)

)

-PHILADELPHIA ELECTRIC COMPANY'S BRIEF ON ISSUES RELATING TO

. LIABILITY FOR FEES AND EXPENSES Donald P. Irwin

~

Marcia R. Gelman Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 804/788-8357

-OfLCounsel: Eugene J. Bradley Philadelphia Electric Company

^

2301 Market Street Philadelphia,.PA 19899 DATED: February 27 1984

RR h <

TAB _LE OF CONTENTS A

T f - . e -

v

T a'b l' e ' o f ' C o n t e n t s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Table of: Authorities....................................... iii E I '. INTRODUCTION............................................ 1

-'i[II.

SUMMARY

yOF[ ARGUMENT..................................... 2

~

.IJI'. ~ ARGUMENT............................................... 5 A. .This Board-Has No-' Authority To Award

' Attorneys' -Feen Or, Costs To Intervenors In This1 Case........................................ 5 l '. The' General Rule'Is:That Each Party

. Bears 1Its Own Litigation Costs................. 5 c

LL: .'

2- . LNone Of The Exceptions To The General i- ' Rule 1Is Applicable Here........................ 8

.a. Unlikefa Court,.the NRC'Has no Inherent Equitable Power-to Award Fees.............. 8

b.  ! Federal Rule ofLCivil' Procedure

d '

41(a)(2) does_not Control NRC Proceedings................................ 9

.c. Section .107(a) 2 of the Commission's Regulations.DoesLNot Authorize the Commission to Grant Attorneys' Feos or

. Costs as'a' Condition of' Dismissal Without

_ Prejudice................................. 13

3. No,NRC' Authority.Other Than Perkins Supports The' Proposition That An Award Of' Attorneys Fees And; Costs

! 'Is Within TheJAuthority Of A E >

-Licensing Board............................... 17

. Bo.1Even-::If This' Board Had The' Authority To

Award Attorneys' Fees And Costs, Such An 1 -Award Would Not Be-Warranted-In This Case.......... 23 a

43 - , 1. :The Intervenors-Cannot Show Legal

, Harm-Within The' Meaning Of Perkins............ 24 L

. i' r . .,

?- e

(.

j .f l * . .

4 ug :

'f i i.

w

a. The Intervenors Did Not Incur Substantial Expenses in This Case......... 25 b '. - The Intervenors Did Not Develop-JInformation That Cast Doubt Upon ti

~

.the Merits of the Application............. 28 C. No Fees OryCosts-Are Payable To

The NRC' Staff...................................... 29 IV. CONCLUSION............................................. 31 Attachmenti ' Letter,' William O.-Miller to Edward G. Bauer, September-16, 1982

~ Certificate of Service-u N

Y e

ii e

---

,c, ,++ + y -w-e

, - ,-.,y-- -.,-w-- , # ., ,, ---e v -

7

m-

, 4 ,

i ..

m TABLE OF AUTHORITIES U.S. Supreme Court Cases

'Alveska-Pipeline-Co. v. Wilderness Society, 421 U.S. 240

-(1975)............................................... 5,20

' ArrowaHart-& Hegeman,' Elect. Co. v. Federal ~ Trade Comm'n,

.291 U.S.-587,-(1934).................................... 8 m Guardians'LAssn v. Civil Service Comm'n of the City of New York, 51.~.U.S.L.W. 5105, (July 1, 1983)

(O'Connor, J., concurring).............................. 9

1. . OF.D.' Rich Co., Inc._v._U.S. Indus. Lumber Co., Inc.,

~417 U.S. 116,((1974).................................. 5 ,' 6 -

Ruckelshaus v. Sierra Club,.51 U.S.L.W. 5132, (Jul

,1983)........................................y 1,

........... 5 LSierra: Club v. Morton,_405 U.S. 727L(1972).................. 25 Other: Court-Cases-City'of Chicago'v. Fair Employment Practice Comm'n,_

~

65_.I11.-3d 108,1 357 N.E. 2d 1154 (1976)............. 7-8,9

' Fischer v.: DOT, 430 F. Supp. 1349, (D.~ Mass. 1977)........... 7 LeCompteiv.~ Mr.i_ Chip, Inc.,.528 F.2d 601 (5th'Cir. 1976)........................................ 10

New England Power Company,'et. al. v. Nuclear Regulatory, oCommission 683 F.2d.12.(1st-Cir.

. 1982)..................... 31 Puerto Rico Maritime Shipping Authority v. Leith, 668 F.2d 46,-(1st.Cir. 1981)........................... 10 I ,

1; - lRolax cv. L Atlantic- Coast Line R. Co., 186 F.2d~473 Li .(4th Cir. 1951)......................................... 8

,o I Trapp;v.' United States,-668 F.2d 1114 (10th Cir.

L 1977)....... 8

+ ,

k I .

k, lii I.2 _ _. ~

i A w

I 'L LTurner-v. FCC, 514 F.2d 1354 (D.C. Cir. 1975)....... 6-7,8,13,20

'O Yoffe.v.fKeller Industries, Inc., 580 F.2d 126

'(Sth Cir. 1978)........................................ 10 NRC-Cases Cincinnati Gas & Electric Co. (Wm. H. Zimmer Nuclear Power-Station, Unit-1),-15 NRC 1538-(LBP-82-47, 1982)........ 12' Duke ' Power Company-(Perkins-Nuclear Station),

C 16 NRC/1128 (LBP-82-81,-1982)...... 1,12,17,20-22,23,24,28

- Northern' Indiana'Public-Service Co. (Bailly Generating

-Station, Nuclear-1),.15 NRC 762 (LBP-82-28, 1982)... 19,20 Pacific-Gas and' Electric Company-(Stanislaus Nuclear Project,

-. Unit 1), 9 NRC 683 (ALAB-550, 1979).................... 22 Pacific' Gas-and Electric Company (Stanislaus Nuclear Project

. Unit 1), 17LNRC 45-(LBP-82-2, 1983)......... 9,13,18,20,27 Philadelphia Electric Company (Fulton Generating Station),

114-NRC 967 (ALAB-657,'1981)..................... 1,9,17,23 Puerto Rico Electric-Power Authority (North. Coast

Nuclear Plant),.14 NRC 1125.(ALAB-662, 1981) 1,17-18,23,25 Treaties J. Moore,-Moore's Federal Practice 1 54.77[2] at 1709 (1982).................................................. 8

+1 ~1 Am.'Jur. 2d Admin. . Law. S 70 (1962)........................ 9 N

j iv

.p-

'L.-f. .

.m

? *.' Y

,,3v ar.-

t t

Regulations and Federal' Register' Notices

l Federal-Rule-o.f Civil Procedure 41(a)(2)............ 9-12,17,21

~

~

410)CFR l 2.107..................................... 10-12,13-14

s. _

L, s. - - .

~10

CFR=$ 50.10(e) .......................................... 13

+

- [10.CFR Dart'.170............................................. 29 i' 10 CFR'l;170.'21'(1973)......'................................

30' 45 Fed..RS ..74,493~(November 10, 1980)..................... 30

. 46 Fed. RE . 49,573 (1981).................................. 30

. -49: Fed'. Red. 4442 ........................................... 1.

[ '

-. -I t

s. -  :

p.e b

c 6 5

u

.3

}

Y e 4

" . . '- g

~ k J-p- a s F

V s.

gj. 5 o

L '- . _ . - . . - . . _ - . - , . , . _

(

UNITED STATES OFLAMERICA NUCLEAR REGULATORY COMMISSION

-Before the Atomic Safety and Licensing Board

~In'the' Matter of ) ASLBP Docket No. 76-300-01 CP

)

PHILADELPHIA ELECTRIC COMPANY ) (NRC Docket No. 50-463-CP

) 50-464-CP)

. (Fulton' Generating Station, )'

UnitsEl'and 2) )

PHILADELPHIA ELECTRIC COMPANY'S BRIEF ON ISSUES RELATING TO LIABILITY FOR FEES-AND EXPENSES I. INTRODUCTION By its Order dated January 27, 1984 and published in the Federal Register on; February 6 (49 Fed. Reg._ 4442), this Board Lordered that a-prehearing conference be held at which the par-Lties should be. prepared-to argue, inter alia,.what liability, iflany, Philadelphia Electric Company (PE):may have for fees and expenses lin this' case pursuant to decisions such as Duke Power Company (Perkins; Nuclear Station), 16.NRC 1128 (LBP 81,-1982);cPuertoERico Electric Power Authority (North Coast l Nuclear Plant), 14 NRC 1125 (ALAB-662, _1981); and Philadelphia

Electric Company-(Fulton Generating Station), 14 NRC 967 (ALAB-

_ L657,g1981). This brief, addresses itself to that issue.1/ The 1/U PE is!not aware of any motion from any other party that g 'this Board; tax-fees'and expenses against it. As a result, the

. treatment of this question will.necessarily'be more comprehen-(Footnote cont'd)

- . - - . - . . - _ _ - . _ . ~ . .

- , s ,

._2 oa

~

5 _

-relevant l facts-arel set'.-out~predominantly in the Statement of LMaterial; Facts accompanying PE's pending Motion For Summary De-

' cision'And-For. Termination Of ProceedingsxAs-Moot And Without Prejudice,adated December ~29,J1983. ' The.few additional rele-

' ~'

1 tvant facts 1are' included in this'brief.-

.~ :s II.

SUMMARY

OF ARGUMQg l l. '-

- This briefiestal$lishes, first, that this Board has no au-thority to? order the~ award o'f. attorneys' fees and expenses in

• ld .a- .. . ..

1this case. . The "American Rule" ofL litigation, that each party

" bears itsfownflitigation: expenses, prohibits,.such awards in the absence offs'tatute.or obher specific basis for exception. This -

. . rule'appliesito administrative proceedings as wellias judicial-

~

s 2ones,-'and to withdrawals as well as;to completed litigation. -

.N'o(statutoryorother; applicable-basisiscitedinanyofthe 1 'three cases' referred to in this Board's January 27 Order, :or

.has beenlfound'.in other authority examined in research for th is

._ 1 .' .. - ~

brief,;for: awarding. attorneys' fees;and costs;in NRC licensing proc'eedings.. NRC authority on. point confirms these results, as '

f , .. . .

!:q ;follows: (1) no fees.or costs have ever been awarded in any.

..NRC.11 censing-proceeding;--(2).no board other than Perkins has x(Footnote

cont'd from previous page) m" .

'sive than:might be.possible'if the-issue had been fairly placed inLissue.by'another' party.

yy V ,

( _'.'. g .g I,

^

a a 4

& m

' " ^ -"

m ,- .#-e 44 , ,,,.py- m- y 7 -r ;.,,~, - ,,,-n,s+._,, ,.-,.,p., --.,-m,q.,...e.-

even proceeded as though it did possess power to consider an award, and two (Bailly, Stanislaus) have specifically rejected arguments that they have such power; and (3) the NRC, like other agencies, is a creature of statute without the inherent equity powers of a federal court, and thus cannot act in the absence of r,uch authority. Thus the test hypothesized for the first time in footnote dictum in North Coast (and not even men-tioned in Fulton) and applied in Perkins (but in no other case examined) 1.s not a proper test for considering an award of at-torneys' fees and costs, since NRC licensing boards lack the power to make such awards.

Second, this brief establishes that even if the two-part Perkins test (1. Did intervenors go to substantial labor and expense? and 2. did they develop information which casts doubt on the merits of the application?) were accepted arguendo, no interver.or in this case satisfies even one part of it, much less both, as wculd be required for any recovery. Further, all parties other than the York intervenors have long since waived any rights they might have otherwise had (the last previous paper filed by-any other party was filed, according to PE's

-records, by the Solanco intervenors in May 1979, nearly five years ago;.none of them except York even responded to PE's mo-tien to withdraw its application in December 1980). The York intervenors lack standing to assert claims on behalf of persons other than their members; thus, even if another intervenor had

n -

n T- lRQ ' ~

satisifed-both' aspects of the Perkins test (which did not

' occur), York would lack standing to assert its claims. Thus no award:could'be made on the merits under the Perkins test.

Third,'this brief shows that fees and costs of the NRC Staff are. governed by Commission regulation as judicially con-strued, and administered by the Staff. Here also, even though

'thiscaspectiof the fees / expenses question is not before this ,

Board,2the record is clear that no liability remains. At the time.PE withdrew the Fulton application, there were no effec-tive Commission regulaticns permitting the taxing of licensing .

fees and costs incurred by the NRC Staff, beyond the initial filing-fee,Jfor' applications which were withdrawn before issu-ance of'a construction permit. Regulations which took effect

.O onlygafter.Fulton's withdrawal were sustained by the U.S. Court

. - of Appeals for prospective but not retroactive application. PE was a party to that litigation. Subsequent to that deci+1on,

. the NRC. Staff informed PE by latter that it would not seek to j  ; recover fees and costs incurred ~in processing the Fulton appli-

~ cation since-the initial. filing fee. Thus no fees are owed to the Staff.

L I

s ils III. ARGUMENT A.'- This Board Has No Authority To Award Attorneys' Fees Or Costs To Intervenors In This Casc

1. The General-Rule Is That Each Party Bears-Its Own Litigation Costs

'The general rule on taxation of attorneys' fees and costs,

" deeply rooted in our history and congressional policy," is

.that attorneys' fees are not recoverable by one litigant from another-_ absent specific and explicit statutory authority.

Alveska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 247, 271.(1975); see also Ruckelchaus v. Sierra Club, 51 U.S.L.W.

5132, 5133 (July 1, 1983); F.D. Rich Co., Inc. v. U.S. Indus.

Lumber Co., Inc., 417 U.S. 116, 126 (1974). This is known as

the "American Rule."2/ The Atomic Energy Act has no attorneys' fees /custs-provision, nor is PE aware of any other statute which would_ impose liability in this case.

-The exceptions to the American Rule are few and narrow.

The Supreme Court has recognized that, notwithstanding the American Rule, courts have equitable power to award attorneys' fees and costs to a successful litigant when his opponent has acted "in bad faith, vexatiously, wantonly, or for oppressive j2s T Congress has made specific provision for attorneys' fees under certain federal statutes granting or protecting federal rights. See Alveska, 421 U.S. at 260 n.33.

_L.

reasons," F.D. Rich Co., 417 U.S. at 129-30, or when a success-ful litigant has conferred a substantial benefit on a class of persons who should justly bear a proportionate cost. Id.

The American Rule applies to administrative agencies as well as to courts, Turner v. FCC, 5'.4 F.2d 1354 (D.C. Cir.

1975). In that case, Turner filed a petition before the FCC l

l seeking to deny the renewal of a radio station's license.

1 Prior to the hearing, the parties reached a settlement. Turner subsequently requested that the Commission compel the licensee to reimburse the legal expenses incurred in prosecuting the pe-tition to deny. The Commission refused to order the licensee to twamburse Turner's attorneys' fees, concluding that it locked the authority to do so. The Commission emphasized that the authority to order reitsbursement of legal expenses should not be implied absent specific statutory authority:

[T]he shifting of attorney's fees is not a new concept. The fact is that fee shifting was well known to Congress when the [Communica-tions) Act was adopted, and Congress did not choose to number it specifically among the

, Commission's regulatory t>ols. Moreover, any l attempt to infer such power from general I

grants of authority has to be considered in l the light of the traditional rule in this na-l tion's courts against awards of attorney's i fees, the strict limitations on the Commis-

! sion's powers under the Act to require broad-cast licensees to pay out money, and the fact that Congress has not hesitated in other cir-l cumstances to authorize fee awards explicitly

! when it has deterroined such authorization to be warranted.

1 l

1

l The federal courts have awarded attorney's fees in certain classes of cases not covered by statute, and Turner argues by analogy that the Commission has authority to do the same thing. But the ' foundation' for this practice in the courts is 'the original authority of the chancellor to do equity in a particular situation,' and the Commission has no such eq-uitable authority. Instead, the Commission must find its authority in its enabling stat-utes.

45 F.C.C. 2d 377, 381-82 (1974)(citations omitted).

Citing Alyeska, the District of Columbia Circuit affirmed the Commission, holding that Congress alone, and not the Com-mission, can change the rule that each litigant bears his own litigation expennes. 514 F.2d at 1356. Thus, before an agency may order a litigant to bear his adversary's expenses, "ic must be granted clear statutory power by Conaress." Id. The Turner decision has been consistently followed. See Fischer v. DOT, 430 F. Supp. 1349, 1352 (D. Mass. 1977) ("[t]he reasoning underlying the Alveska standard is fully applicable to adminis-trative proceedings.");3/ City of ChScago v. Fair Employment 3/ In Fischer, the Court dealt with the question of the obli-gation of DOT and its co-defendant the Civil Service Commission to pay attorneys' fees to a successful claimant on grounds of sex discrimination. The statute empowered the Civil Service Commission, to which plaintiff had successfully appealed denial by DOT, to enforce statutory antidiscrimination provisions "through appropriate remedies . . . as will effectuate the policies of this section," but mace no mention of awarding at-torneys' fees or other costs. 430 F.Supp. at 1352. Even in this plaintiff-oriented area of the law, the Court pointed to the absence of any " specific and explicit provisions" in the statute in denying recovery. I,d .

l l Practice Cosnm' n, 65 Ill. 3d 108, 357 N.E. 2d 1154, 1156 (1976);

Trapp v. United States, 668 F.2d 1114, 1115 (10th Cir. 1977).

In sum, unless an exception to the American Rule applies, express statutory authorization is required before either a court or a regulatory commission can order one party to pay an-other party's attorneys' fees and expenses.

2. None Of The Exceptions To The General Rule Is Applicable Here Courts have awarded fees and costs to litigants despite the American Rule in narrow classes of recognized cases, the three most significant of which are doctrines of bad faith, common benefit, and voluntary dismissal under Federal Rule of Civil Procedure 41(a)(2). None of these exceptions to the American Rule applies to agencies.

a. Unlike a Court, the NRC Has no Inherent Equitable Power to Award Fees Both the " bad faith" and " common benefit" exceptions to the American Rule are founced on the inherent equity jurisdic-tion of the courts. See City of Chicago v. Fair Employment Practice Comm'n, 65 Ill. 3d 108, 357 N.E. 2d 1154, 1156 (1976);

Rolax v. Atlantic Coast Line R. Co., 186 F.2d 473, 481 (4th Cir. 1951); see also J. Moore, Moore's Federal Practice 1 54.77{2] at 1709 (1982). However, administrative agencies are purely creatures of statute and have no independent, inher-ent sources of authority. See Turner, supra, 514 F.2d 1354, 1355-56; see also Arrow-Hart & Hegeman Elect. Co. v. Federal

r N

E _g_

s .

jg i P M i

N Trade Comm'n, 291 U.S. S87, 596 (1934); Guardianc' Assn v. (

Civil Service Comm'n of the City of Neu York, 51 U.S.L.W. 5105, W

.\:M en V.=

=

5114 (July 1, 1983) (O'Connor, .T . , concurring); 1 Am. Jur. 2d -

=-

g,. ,. a ..

A Admin. Law 5 70 (1962). Thus, these exceptions to the American fj-ff.; .

n .

Rule have "no application to administrative agencies, whose Y. .%g J u.T.

E-L powers are strictly confined to those granted in their enabling D% N .- ; !

ff jt.

.y. t .,

< T7 3

_ statutes." City of Chicago, 357 N.E. 2d at 1156; see also I_n (y,r.y E the Matter of Pacific Gas & Electric Co. (Stanislaus Nuclear $ .

Project, Unit 1) LBP-83-2, 17 NRC 45, 54 (1983) ([the Nuclear L

Regulatory Commission) has no equitable power it can exercise [4:I

[pg.'.;

F as courts have). In any event, as the Appeal Board has pointed  % y g]'

y  ?. .v.s out in this case, bad faith on PE's part could not be shown on k " ' .;n the record of this proceeding to date. Philadelphia Electric .. .%%

; v;y.;-Q.;

Company (Fulton Generating Station, Units 1 and 2), ALAB-657, rJ35.?>jfi j ."R. M [ -

L 14 NRC 967, 976-78 (1981). The common benefit exception, which l@.b 9'; ;

_ Q; *; ._t; v . .

relates to such matters as class action suits, is simply inap-N.d.N;.;:.j y :, ._ y,.3 p1icable.

4 %.'.s. . g.; _

I b. Federal Rule of Civil Procedure ji:IYj/k

_ 41(a)(2) does not Control NRC . QF y '

Proceedings _

1. f.::A 'i District Courts have been held to have authority under i-g Rule 41(a)(2) of the Federal Rules of Civil Procedure 4/ arising i

_ 4/ FRCP 41(a)(2) provides, in pertinent part, that "an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper."

k lE E

W g -- %

out of their inherenc equitable powers, to award expenses and l attorneys' fees as a term and condition of a voluntary dismiss-l al without prejudice. LeCompte v. Mr. Chip, Inc., 528 F.2d 601, 604 (5th Cir. 1976). The rationale for making payment of defendants' expenses and attorneys' fees a condition to a dis-missal without prejudice -- i.e. one leaving the plaintiff en-tirely free to renew exactly the same lawsuit later -- is to prevent defendants from being unfairly affected by such dis-missal. Yoffe v. Keller Industries, Inc., 580 F.2d 126, 129 (5th Cir. 1978). Rule 41(a)(2) does not require the imposition of fees and expenses as a condition of voluntary dismiesal.

Puerto Rico Maritime Shipping Authority v. Leith, 668 F.2d 46, 51 (1st Cir. 1981). Rather, the decision whether to impose such costs is within the discretion of the court. Id. at 49-51.

Rule 41(a)(2) does not control NRC proceedings, however.

First, Rule 41 and the analogous provisions in the Commission's regulations, 10 CFR S 2.107, are not identical in whole or even in pertinent part. Rule 41(a)(2) requires that unstipulated-to withdrawal of a complaint after an answer or motion for summary judgment has been filed by defendants be "upon order of the court and upon such terms as the court deems proper"; simi-larly, the Commission's rule, $ 2.107(a), provides that with-drawal of an application after issuance of a notice of hearing "shall be on such terms as the presiding officer may

t 2-_

i l 1

r prescribe," However, there the similarity ends. Rule 41(a)(1)

? deals.specifically with early dismissals, dismissals by stipu-t i lation, and presumptions as to dismissa' with prejudice; 1G CFR

$ 2.107(a) contains none of these. Rule 41(a)(2) and 41(c) both make provisions for preservation of counterclaims against .

.Ut . ', ;'*

g plaintiff upon withdrawal; 10 CFR 9 2.107 contains no such prc Q..y.y .

.2.A m' .

vision. In perhaps the most significant distinction, Rule q.fj.M;; .-

-e f 41(d) provides that if a plaintiff who has previously dismissed ,

s an action later recommences the same action based on or f.f.[I.j g $l M';

f including the same claim against the same defendant, the court .p "may make such order for the costs of the action previously Mk UM;b -

f dismissed as it may deem proper and may stay the proceedings in W r{'Q ,j E the action until the plaintiff has complied with the order."

i (Emphasis supplied.) There la, of course, no provision in b .

3.-

E

~

$ 2.107(a) of any nature respeccing payment of costs. The Com-Q;g,ui W.

e

. .: G g

F mission's rule, at S 2.107(b), likewise contains a reference to  %

S 1 3 ';:Q '.

E retention of documents in the Commission's files, for which 4 p

. . ~ . ., .

{

there is no counterpart in Rule 41. { .' ? $.. ,

.4. 3 E The long and short of it is that Rule 41 and 10 CFR g

Th..Y_ e.

5 2.107 are each multipart, interrelated rules containing one

D$9I

l%> ?.. .

{

similar but not identical passage; they deal with different M t types of proceedings; and they are concerned with different E procedural details relating to termination of those different _ . , . .

o. . . . .

s. ,. :' u

[ types of proceedings. The Commission did not adopt Rule 41 in 7 l.6)

j. g?

I whole; Rule 41(a)(2) is not identical to 6 2.107(a); and in any  %, Y

$ MZ.

5

1. @a .e : ..

';...e

'.F

'g.,,[ e-.;.. i .

g . .: .~.uj '

h $.[.J.'*

{ N E_.:.c?

M msnmelli i-m

=

m --

event, the provisions of Rule 41(a)(2) cannot be viewed in isolation from either the rest of the rule or from the rule's relationship to the inherent equitable powers of federal courts.

As Licensing Boards have pointed out, while Federal Rules of Civil Procedure may provide guidance in interpreting similar Commission rules, it was not intended that unadopted rules gov-ern Commission proceedings. See Cincinnati Gas & Electric Co.

'(Wm. H. Zimmer Nuclear Power Station, Unit 1), LBP-82-47, 15 NRC 1538, 1547 (1982) and cases cited thereat. Rule 41(a)(2) has never been adopted by the Commission, and even the one li-censing board ever to consider imposition of fees and costs on the merits acknowledged that the cases under Rule 41(a)(2) "do not completely cover the issues involved" in an NRC licensing proceeding. Perkins, supra, 16 NRC 1128, 1136. Rule 41(a)(2) is not dispositive in Commission proceedings, and would not be even if the Commission possessed the equity powers which it lacks. It goes without saying that Rule 41(a)(2) cannot confer these equity powers on che Commission.

c. Section 2.1G7(a) of the Commission's Regulations Does Not Authorize the Commission to Grant Attorneys' Fees or -

Costs as a Condition of Dismissal t Without Prejudice 10 CFR $ 2.107(a) contains no provision authorizing the Commission to condition dismissal without prejudice upon pay-ment of an Intervenor's attorneys' fees, or even referring to fees or costs As Turner, supra, makes clear, express statuto-ry authorization is required before an agency can order one 'a litigant to pay another's expenses. Although courts may grant ,,.

u attorneys' fees to an opposing party in certain instances in the exercise of their inherent equitable powers notwithstanding .

the American Rule, agencies are creatures of statute whose pow-ers are confined to those enumerated in enabling legislation.

The NRC's powers do not extend to awarding fees and costs. As the Licensing Board stated in Stanislaus, supra, 17 NRC at 54:

The Commission is a body of limited powers.

Its enabling legislation has no provision em-powering it to require the payment of a party's costs and expenses. The regulations the Commission has promulgated [do] not pro-vide for it. It has no equitable power as courts have. The concept is foreign to the . -

Commission's adjudicatory process.

Given this lack of specific statutory authorization, it is hardly surprising that no award of attorneys' fees has ever been made by the Commission or any Licensing Board pursuant to S 2.107(a). In contea.st, where express authority does exist

for imposition of a certain condition -- e.g., site restora-f ,

tion 5/ or retention of documentsp/ -- such a condition is fre-t quently imposed on voluntary dismissals under 5 2.107. But even if similarly express authority does not exist for other types of conditions imposed under 5 2.107, impositien of these conditions, unlike an award of attorneys' fees and costs, would not run afoul of the American Rule as long as they did not re-quire one party to pay another's expenses.

The profound structural differences between conventional civil litigation and NRC proceedings reinforce, as a matter of policy and common sense, the applicability of the Ameriaan Rule. First, applicants for NRC licenses are seeking to con-struct or operate nuclear plants in furtherance of their busi-ness and their legal responsibility to supply electric power, and pursuant to the policies and provisions of the Atomic Ener-gy Act and the Commission's regulations. Thus the licensing process is one which is both legally authorized and focused on the fulfillment of federal-law requirements, rather than on any relationship between an applicant and an intervenor. The Com-mission, through the Staff and its Licensing and Appeal Boards, is charged with ensuring that these requirements are met. The statute and Commission regulations perr.i.t any person who can 5/ See 10 CFR S 50.10(e).

s/ See 10 CFR S 2.107(b).

demonstrate standing to intervene and participate as a full party; but while intervenors may (though do not necessarily) contribute to development and examination of legal or factual issues, those issues are ones pertinent to federal statutes that Commission has jurisdiction and responsibility to imple-ment, and not to any state-law or private-remedies matters.

Thus with respect to those matters before a licensing board, intervenors are in fact volunteers whom an applicant has not sought out as adversarios.

Second, state-law remedies exist for any direct harm suf-fered by intervonors, principally by eminent domain and tort proceedings, #cr any kind of taking or other damage. Thus the NRC process is neither the sole nor even a necessary forum for intervenors' vindication of their personal or property inter-

, ests that may be affected by an application.

Third, typical civil litigation inherently involves rela-tively fixed, and typically retrospective sets of facts dealing with sonie relationship between plaintiffs and defendants, giv-ing rise to a cause of action. Nuclear power plant applica-tions, on the other hand, involve years-long pursuits of per-

! ' mission to undertake massive investments inherently made in reliance on judgments about a myriad of future events ranging all the way from projections of electric demand, to economic costs and financir.l. cor.ditions, to the continuing technical ac-ceptability over the course of a decade or more of a reactor

design commercially available at the time an application is filed, to the continuing commercial viability of vendors and contractors over the same period. All of these matters are partly or wholly independent variables; all of them are future-oriented; all of them are largely or totally outside the con-trol of a utility applying for a construction permit for a nu-clear power plant. While a utility obviously must, and does, evaluate those matters within the scope of an application in great detail, it can make only its best guess about these out-side factors, which individually or together can swallow an ap-plication.

The implications of these differences are twofold. First, if a reactor application is withdrawn in mid-licensing, any successor reactor application undoubtedly will not be the same as the first one; thus the "same-lawsuit" rationale of civil litigation dismissals does not apply. Second, the licensing process is sufficiently formidable and costly as to be its own guarantor against its frivolous or vexatious invocation. It follows that there is no need to impose fee-shifting burdens to police its proper use. It should not be implemented in a fashion to artificially impede utilities in the exercise of their best judgment about undertaking, continuing or discontin-uing the high-risk,~high-cost business of nuclear plant appli-cations, by imposing unnecessary friction on that process.

ie _ _ _ . _ _ _ _ _ . _ _ _ _ _ _ _ _ . _ _ _

These factors do not suggest that, as the applicant and Regulatory Staff apparently argued unsuccessfully in Perkins, intervenors would lack standing to seek attorneys' fees and costs, 16 NRC at 1135, assuming, hypothetically, that the NRC had authority to grant them. Rather, they show that the re-strictions imposed by the American Rule and the absence of spe-cific statutory authority to permit fee shifting before the Commission are thoroughly in harmony with the basic framework of NRC licensing litigation, and that the limited fee-shifting remedies available under Fed.R.Civ.P. 41(a)(2) in ordinary civil litigation have no place in NRC licensings and should not be imported into them.

3. No NRC Authority Other Than Perkins

, Supports The Proposition That An Award Of Attorneys' Fees And Costs Is Within The Authority Of A Licensing Board The question whether the NRC has authority to impose pay-ment of an intervenor's attorneys fees and expenses was not raised at all by the Appeal Board in its earlier decision in this case, ALAB-657. In the later North Coast case, the Appeal i

Board raised the issue for the first time, apparently voluntar-ily, in a footnote without either deciding it in the abstract or applying it to any factual setting. 14 NRC 1125, 1135 n. 11 (1981). In the context of discussing whether dismissal with prejudice was warranted, the Appeal Board mused:

f We note that the case at b'ar did not entail lengthy discovery, or proceed through the trial stage. It hardly got off the ground.

We leave open the question whether something short of a dismissal with prejudice, such as conditioning withdrawal of an application upon payment of the opposing parties' expenses, might be within the Commission's powers and otherwise appropriate where the expenses in-curred were substantial and intervenors devel-oped information which cast doubt upon the merits of the application.

North Coast, supra, at 1135, n.ll. The question raised ab-stractly in North Coast has since been addressed in three NRC licensing proceedings.

In the most recent case, Pacific Gas and Electric Company (Stanislaus Nuclear Project, Unit 1), LBP-83-2, 17 NRC 45 (1983), the Licensing Board held that notwithstanding 9 2.107(a) and any textual similarities it might hnve to Rule 41(a)(2), 17 NRC at 49, the Commission did not have the power to authorize the payment of litigation expenses:

Under the circumstances of the proceeding there is no need to determine whether the Com-mission has the power to authorize the payment of litigation expenses.as a condition of per-mitting withdrawal of an application without prejudice, but it would appear not. The Com-mission is a body of limited powers. Its en-abling legislation has no provision empowering it to require the payment of a party's costs and expenses. The regulationc the Commission has promvigated does not provide for it. It has no equitable power it can exercise as courts have. The concept is foreign to the Commission's adjudicatory process.

17 NRC at 54.7/

7/ The Board also noted that it did not need to decide the merits of the issue since "[njo factual basis has been pres-(Footnote cont'd)

The previous year, the Licensing Board in. Northern Indiana r Public Servicejlp. (Bailly Generating Station, Nuclear-1), LBP-82-29, 'S NRC 762 (1982), also did not accept the argument that the Commission has authority similar to federal courts to award fees and expenses. Concluding that licensing boards do not have that authority in the absence of a Commission determina-tion that they do, the Board declined to impose payment of in-tervenor expenses as a condition to withdrawal of the utility's construction permit extension application. The Board stated:

[Elven if the Commission has the authority to condition a termination upon a reimbursement of the contested expenses beyond the scope of judicial precedent, this Board lacks the authcrity to impose such a condition. We can I go only as far as established precedent with-out adopting new Commission policy, and Com-mission policy can only be adopted by the Com-mission itself. The licensing and appeal boards are not empowered to make policy.

Offshore Power Systems (Floating Nuclear Power Plants), CLI-79-9, 10 NRC 257, 261 (1979);

South Carolina Electric and Gas Company (Virgil C. Summer Nuclear Station, Unit 1),

LBP-81-47, 14 NRC 866, 875 (1981), affirmed on other grounds, ALAB-663, 14 NRC 1140 (1981).

We find no indication that the Commission has adopted a policy that goes beyond the estab-lished exceptions to the American Rule, none of which apply to the instant proceeding.

15 NRC at 768 (emphasis supplied).

(Footnote cont'd from prevlous page) t-ented where intervenors would be entitled to the payment of their litigation expensee." 17 NRC at 53.

t

[

L M P n_1E Both the Stanislaus and Bailly decirions were rendered in M

g

=

q the context of potential conditions to dismissals without prej- g I udice. However, it is clear that the reasoning of each of L

_A

[ these boards would apply equally to dismissals with and without $ 1 h

g g

prejudice. g M

r only one licensing board has ever reached a different con-

= M h

L clusion than Stanislaus and Bailly. Between the dates of those _$

M F-

=

two cases, and in clear conflict with Alveska and Turner, one $

q Licensing Board has said that "[t]he absence of specific statu-1 L tory authority does not prevent boards from exercising reason-able authority necessary to carry out its responsibilities and $

g k- a money condition is not necessarily barred from considera- M L M E-tion." Duke Power Company (Perkins Nuclear Station, Unit 1, 2 g b and 3), LBP-82 81, 16 NRC 1128, 1140 (1982). The Perkins Board R um

{ held that "the payment of attorneys fees is not necessarily G F _a s prohibited, as a matter of law, as a condition of withdrawal gn E j h

without prejudice of a construction permit application." 16 m L NRC at 1141. .M_

Y The Perkins Board did not attempt to articulate any direct d

==

source of its authority to impose fees and expenses, beyond dm

- noting that "[m]any cases under [ Federal) Rule 41 have involved -%

C d

[

m the payment of attorneys' fees to save defendants from legal 3 -

% =BG A

E harm where actions have been dismissed without prejudice." 16 m-4E k NRC at 1139. The Board's holding is somewhat anomalous in Y E

light'of its earlier notation that Rule 41 is not entirely N I 55 e ,

F ^*

E e

n h n g N 3_

N _ _ _ _ _ _ _ . . _ _ , . . . .

l 1

I applicable to NRC proceedings. 16 NRC at 1136. Because of the differences between traditional litigation and NRC proceedings, and the fact that district courts possess equity powers whereas agencies do not, the case law under Rule 41 cannot suppcrt the Perkins Board's conclusion that it may condition dismissal without prejudice on payment of attorneys' fees, nor does the Board point to any other source of authority.

PE respectfully urges that the Perkins Board's reliance on Rule 41(a)(2) to award attorneys' fees is simply misplaced.

The Perkins Board is correct in its conclusion that the Ameri-can Rule and dismissals without prejudice are not the same con-cept. but incorrect in its assertion that they are " essentially unrelated." 16 NRC at 1140. The power to award attorneys' fees under Rule 41(a)(2) -- not granted on the face of the rule but derived from court's equity powers -- is intended precisely to prevent abuse of dismissals without prejudice which might otherwise be-occa?ioned by the American Rule's general prohibi-tion against taxing one litigant's costs to another. By making some dismissals without prejudice subject to awards of fees and costs, courts can discourage the filing of naalicicus or frivo-lous actions; a similar policy is explicit in Rule 41(d) with respect to renewed lawsuits, The 1erkins Board's apparent failure to understand this relationship, and its ovet'. coking of the equitable origins of nonstatutory fee-shifting, are the principal errors in its reasoning.

i r ..

6 p .

L L

2-

[ Moreover, the Perkins Boacd's relianme on an Appeal Board E

E discovery decision in Pacific Gas and Electric Comp.ny ' M'crr.J.  ?

p

%.? .e  %

(Stanislaus Nuclear Project, Unit 1), ALAB-550, 9 NRC 683 'p s 5 .( .P tg. g g a.,....

7 (1979), is inapposite. That case involved 10 CFR 5 2.720(f), N h;3 .

2 E which provides that a licensing board may condition the denial a5f<g 'A ; .

ji 7 ~

e u.g of a motion to quash or modify a subpoena duces tecum "on just - ~i * .

Ei _4y and reasonable terms." The Appeal Board held there that even O,y. f]h,4; c

'..m.

.N, 93. f

_ without express statutory aut'Tority, an agency has the right te h. -

l. Q ,4.

E condition the enforcement of subpoenas upon the payment of pro- ;gg 4 i x .we(da g.

'a duction costs. The Appeal Board emphasized, however, that '; ).

I $AJ

= manifest difference exists between (1) awarding attorney's fees , v., ,

s.*...

F .-

.y; F-

_n favor of one litigant against another and (2) requiring a L. -

= ym,

[ party who requests the issuance of a subpoena duc's tecum to J ..;d .~ ..

P assume the costs of compliance with it."

OE .gl

[ 9 NRC at 700. That 4 ,

=

difference is the American Rule, and it viciates any reliance

• f; r

by the Perkins Board on the Stanislaus Appeal Board decision, y. Q. 'yr .'J .

g g

to award fees or costs in connection with r withdrawal. jf)I[yv g.: :-s .

E In sum, two Licensing Boards have answered "no" to the  : 120%4

.c

..p Q

k question whether a Licensing Board may condition dismissal M, r.', b ~..s

=

fh~ 7 p without prejudice on payment of attorneys' feer and costs; no h

E-n, , .4

, .QW E such awards have ever been made by the NRC; and the full Com-c . .h.

E , .  ; . '

~

g mjssion has not spoken 'n the issue or approved stch a prac-p{. . >..;4;J t ..

., f fr.. I.

• U tice. This Board should not follow the Perkins Board's mis- $ 3.. . $ r L  % . .:w .k. p. .

p placed lead in flouting the time-honored principles underlying L' -"

the American Rule.

E F

5 .,

Y .

EE n '.. .' ,

=-

=

p

=

b A ,

g

mm EEE P

R.j. }.)

.s.s. ;.. . , . .3.-

B. Even If This Board Had The Authority To N' hq.g Award A'.torneys' Fees And Costs, Such An f.-9 .'

Award Would Not Be Warranted In This Case A..M..^: ...

Sg .o ; (

This Board's Order of January 27, 1984 required the par- ISM w.a / : a s.. .

ties to considor what liability, if any, PE might have for at- A u'

. . A .:. a -

torneys' fees and expenses pursuant to decisions such as Fulton "[:h,., .

v. f.?: .; ~ l .

(ALAB-657), North Coast (ALAB-662) and Perkins (LBP-82-81). 4, . y,'

The Fulton case simply lends no support for an award of fees C7](.i. @p

.i +; .

and expenses: it does not even mention the subject.8/ Nor j.if% .;j

.i.e .

does North Coast: its only reference to fees and expenses is N.yW f/I.

e1 s8 in a pure dictum footnote, rendered at the end of its decision . .". C y w : :,.

on the me* tits against dismissal with prejudice: h.h yv .i .

11/ We note that the case at bar did not entail lengthy discovery, or proceed through (4'gj(f in J the trial stage. It hardly got off the 'Q.i; j,y .

ground. We leave open the question whether gg.* ..r"..

something short of a dismissal with prejudice, 'Wg.4, such as conditioning withdrawal of an applica- e g, ..

tion upon payment of the opposing parties' Q-Q l-Q.3? -

cm r h/ The only suggestion in Fulton tending anywhere but in the direction of c.ummary dismissal without prejudice (and with no f k.n.J

=w- -

mention of fees or costs) is the Appeal Board's footnote ex-pression of its reluctance "to interfere with a board's.explo-Of -

... N , g ration of matters that, in its view, involve a possible compro- . Je mise of the Commission's adjudicatory processes." 14 NRC 967, 978 n. 12. The Appeal Board also made clear, however, that it a

g; "f

found no evidence of bad faith on PE's part or of legal harm to 'g.K any other party or to the Commission's process on the record .i.?m.%

before it. I tl . at 978-79. Since this Board's reconstitution )N {,!

upon remand, Eo party has countered PE's verified " Motion for 2 .w..- 1 Summary Decision and for Termination of Proceeding Without 1. *[ 6' Prejudice as Moot" dated December 29, 1983 with anything other  !;g. ',

than unsworn allegations, which "cannot serve as a basis for a finding of hardship or legal harm." Fg ton at 979. Nor has M

$ :v$j this Board provided any indication, in either ef its two Orders J.;gc O-in this matter, that it had any agenda beyond that properly T' .4.i. ,

raised by intervenors. g~.~/ "

': D.% .s

'i4ir '

i- l l

expenses, might be within the Commission's powers and otherwise appropriate where the ex-penses incurred were substantial and interve-nors developed information which cast doubt upon the merits of the application.

14 NRC at 1135 n. 11.

The Appeal Board's speculation here neither cites nor lends any authority whatever fo:' the proposition that fees and expenses can properly be swarded. All it did, by " leaving open" a question not discernibly before it, was not gratu-itously foreclose it. Neither as a matter of logic, lin-guistics nor authority.can this passage be cited as support for the proposition that NRC licensing boards are entitled to tax litigants' attorneys' fees or costs to other litigants.

This leaves Perkins, the only case actually to entertain a request for fees and expenses on the merits. For the reasons outlined above, the Perkins Board's rationale is unsupportable, and no other rationalia exist. Nevertheless, assuming that this Board had the authority to award fees and expenses, pursu-ant to the Perkins licensing board's test, it should neverthe-less decline to impose them since, as shown below, the interve-nors have not suffered the requisite legal harm.

1. The Intervenors Cannot Show Legal Harm Within The Meaning Of Perkins The Perki_ns Board's test for determining whether fees and costs should be awarded in connection with a dismissal without prejudice concedes that the mere possibility of another hearing i.

E with'its attendant fees and expenses, standing alono, would not

justify placing conditions on a withdrawal without prejudice.

16 NRC at 1135. In order to show the " legal harm" requisite to _

imposition of attorneys' fees, intervenors must have (1) in-l curred substantial expenses and (2) developed information that

casts doubt upon the merits of the application. 16 NRC at t

y 1138, citing North Coast, 14 NRC at 1135 n.11. Intervenors in this case can show neither of these things.

F

a. The Intervenors Did Not Incur Substantial Expenses in This Case m

The York intervenors summarily claim, without specifica-tion or documentation, extensive efforts and costs occasioned E

s by Fulton's pendency. The record shows, however, that the York i

a intervenors never retained an attorney or technical experts, b

[ and were never compelled in the course of the Fulton case to .--

prepare written testimony, answer discovery, or prepare any pa- '

d g pere more complex than their intervention papers. The case, of -

course, never went to hearing. Since cancellation of the 7 . -

HTGR's in 1975, the York intervenors' participation of record, E

g according to PE's files, has consisted of attending one meeting

$ in Bethesda an 1978 and filing, between 1980 and 1984, three F

brief,' unverified papers (not including three brief papers .

y dealing with extensions) disputing PE's attempts to bring this

[ case to an end. While the licensing case was still active the

{ York intervenors filed on PE only one discovery request, s

F Y

=

.x_

f r -__

L containing six ir.terrogatories and eight requectc for produs tion, on August 28, 1974. PE answered this request. The York 1

! intervenors filed a comparably brief set of 3 interrogatories

. R :.s; and 16 requests to produce on the NRC Staff on August 28, 1974, f f. .. ^ e', -

gy:j'y,l which the Staff also answered. If they did more, it is not in J..p, , ; .

< 4;;::

[ the record. Thus the York intervenors did not incur substan- $ $ h. .

h.:_,

tial costs in this case.

' ,C .r,-;",;

The York intervenors were the only intervenors that even i.NM/

' Ra .' .-:'

objected to dism.issal of PE's application without prejudice: Y ,'. :

n 91. . ,;

no other intervenor has, to PE's knowledge, filed a paper in -f..;;7

4. i

e. .

this case since the summer of 1979, nearly five years ago. hpys. wy

[ m e'. .

They have thus long since waived any rights they might have {l, ever had. The York interrenors have no standing to assert * *O"

$8..i . .3 rights of or complain of the costs incurred by any other inter- [h4~

, W. _. -. :.-4 venors, see Sierra Club v. Morton, 405 U.S. 727 (1972). No ... - . ,.

M.9 E other intervenors, in any event, were put to any extensive ef- . .. . ." ;

& i.if fort. Like the York intervenors, none of them ever filed any gj;j. ;;

testimony. None of them ever answered any discovery. The case W; .,..1, 9 A .,

(

never went to hearing.

. a .> -

)

sh5.

_ This case involved little or no active exertion by inter- [.i gy%

- .. : .;: 3

~

L venors at any time, and in that regard is akin to the North ,

f Coast case, which the Appeal Board characterized as having "hardly got off the ground." 14 NRC 1125, 1135 n.11.9/ Fulton 5

[

9/ If any party at Fulton undertook substantial work on dis-covery it was PE, which responded to twenty sets of interroga-7_ (Footnote cont'd) -.

m-K 7 _

e E L E

E h involved radically lass work for intervenors than did the

[ Stanislaus case, in which the Licensing Board refused to award -

E I 5 fees and expenses as a condition of nonprejudicicl withdrawal i h

h despite extensive discovery involving several millions of docu-E F ments, over one-and one half million had been produced at the a

case's termination. The licensing board stated there:

[Intervenors) have not demonstrated that they have been prejudiced to a degree to warrant payment of their expenses because of the l granting of the motion to withdraw, even if g the Commission were authorized to do so. In-g tervenors have incurred substantial expenses F in a lengthy discovery process but the pro-ceeding never even progressed through the dis-covery stage. It was nowhere near approaching a determination on the merits nor had inte rve-I17NRCat nors developed information which cast doute on the merits of the application.

q 53.10/

e y

k

• f (Footrote cont'd from previous page) tories posed by the various intervenors over a fifteen-month period in 1974-75. No other party was requested to answer any discovery.

10/ Though the _Stanislaus Licensing Board, as noted, rejected the intervenors' request for attorneys' fees and costs, it did impose, as an appropriate condition pursuant to 10 CFR 9 2.107, a requirement for preservation and retention of discovery docu-ments. 14 NRC at 55, 56-58. PE agrees that such a condition is within a licensing board's power.

um

b

=

B F b. The Intervenors Did Not Develop Information That Cast Doubt Upon .

the Merits of the Application No merits decision was ever reached on the Fulton Applica-g tion. Nor does the record indicate that the intervenors devel-E oped information which cast doubt upon the merits of the appli-E cation. Indeed, following the filing of PE's application, the NRC Staff evaluated it and issued a Safety Evaluation Report (NUREG-75/015, March 1975) and a supplement to that report

( (NUREG-75/015 Supp. 1, June 1975), and the Advisory Committee

[ on Reactor Safeguards issued a letter (April 8, 1975), all fa-

?

vorably resolving safety issues of the tpplication in the e

h Staff's view. The NRC Staff also published a Final Environ-i b mental Impact Statement (NUREG-75/033, April 1975) recommending E

issuance of a construction permit subject to various conditions e

lq for protection of the environment. In short, such information m ,;9 ,;

E as existed in the licensing record at the time active proceed- 74/5( m

, y I ings came to a halt in the fall of 1975 was favorable to the fjkg ,

=

p application. sg'.l@

E The Perkins Board, in treating the issue whether interve-c' nors had developed information casting doubt on the viability ,

n 1

g of the application, opined that in conventional civil litiga-tion, "where the defendant has prevailed or is about to prevai) an unconditional withdrawal cannot be approved." 16 NRC at 1135. It further suggested that intervenors in NRC proceedings are entitled to seek conditions to the exact extent they may be k

w E

m E'N 1,.h wm X

-i Si- - - . . -

exposed to legal harm from a dismissal. That is, they are en-titled to be protected from harm "if any victory is nullified" by the unfair need to litigate their interests again. 16 NRC at 1136-37. The Fulton intervenors did not prevail on the mer-its or even approach prevailing since the case never came to hearing and testimony was never even filed. Such information as was in the record at the time of withdrawal wm favorable to the application. Thus, the intervenors in this case have achieved no victories tnat could be nullified by withdrawal of

'ys.,f..;

the application, and unconditional withdrawal without prejudice o

y p., .-

should be granted. 2,.( Y_i;4 9 q_ :'

C. No Fees Or Costs Are Payable To pA '.J h The NRC Staff '*%

M*p:

Yi6 Conceptually, there remains one further potential aspect Eji./h

f.; .( ,']

of fees and costs: those potentially owed to the Commission. Jaz'peg ' ' /

The collection of such fees and costo is a matter administered 4(

[Y

(,?_:.r%;.-

by the Regulatory Staff pursuant to the Commission's regula- 3,% f.' W tions at 10 CFR Part 170 and is not before this Board; and the $/f.N

%) c ?: ,- .

qv r . . ,u_ .

Staff has never sought before this Board to collect fees or ex- ygg . .,',

g-pensea. ',g\. u.' [ ,

,j s ,

PE and the Staff have resolved, in any event, all pending f'Aji[I we -

matters under Part 170. At the time the Fulton application was initially filed in 1973, the Commission's regulations provided

,. 7g ,I for payment of a partial fee upon filing of an application for *.

d

,. 3- f

;.g r. .*

a construction permit and another, larger fee upon the permit's . ~..,. 7 [ ?

3..e. s.,, . . , .-

' *l - j . % _

y. k-f 6 4' . ..

3 e. * ,

+j 'ef.g y z.k j.%

i ,.3%f ?

.w +-;u

.'s r.

t y .,Ys*

N

issuance. 10 CFR $ 170.21 (1973). No fees were provided for Staff review between or apart from permit application and issu-ance. Pursuant to that regulation, PE paid its filing fee in 1973; it did not, of course, pay a permit-issuance fee. In November 1980 the Staff proposed modifying its regulations to permit assessment of fees for review work performed on license applications that were withdrawn before issuance of a construc-tion permit or operating license. 45 Fed. Reg. 74493 (November 10, 1980). PE withdrew the Fulton application on December 5, 1980. The modified fee regulations took effect only later, in 1981. 46 Fed. Reg. 49,573 (1981). PE was one of a group of utilities which appealed these regulations to the U.S. Court of Appeals. The regulations were upheld for prospective applica-tion but were vacated with respect to their retroactive appli-cation, i.e., with raspact to work performed by the Staff prior to their date of effectiveness. New England Power Company, et.

al. v. Nuclear Regulatory Commission 683 F.2d 12 (1st Cir.

1982). On December 14, 1981, pending the Court of Appeals' de-cision, the NRC Staff had submitted to PE a letter indicating its intent to bill PE for review services on the Fulton appli-cation. After the Court of Appeals' decision, the Staff notified PE by letter dated September 16, 1982 that in view of the Court's decision the Staff would no longer attempt to col-lect these review expenses (Attachment I hereto). Thus there are no fees or expenses associated +4- Fulton still owing to the Staff.

y:

fI; IV. CONCLUSION The law on fee-shifting does not give the NRC, much less individual licensing boards acting without Commission approval, the power-to tax parties to' licensing proceedings before it for

.the attorneys' fees and costs incurred by other parties, absent L

I:"

e ispe-ific statutory authorization since'the Commission lacks any L equity powers. .No such. authorization exists. Perhaps it is for this reason that no licensing board has ever awarded attor-neys'-fees and' costs in NRC licensing litigation. The Perkins case,:.in even considering them,-was incorrectly decided. Fur-ther, even if such authority-did exist, intervenors in this case would not' qualify for fees or costs under the Perk' ins test. .The' question of. licensing review fees and costs owing to the NEC Staff has been separately resolved apart from this pro-

- a. c ee ding .

-PE.has no liability to any party for attorneys' fees or

. costs.

Respectfully submitted, PHILADELPHIA ELECTRIC COMPANY By t .

~

. fonald F. Irwin Marcia R. Gelman HUNTONl& WILLIAMS 4 707 East Main Street P .~ O . Box 1535 Richmond, Virginia' 23212 804/788-8357-DATED: February 27,;1984

1 i-ATTACHMENT 1 t.

k' i

ATTACHITNT 1 t>nmere UNITED STATES Jg NUCLEAR REGULATORY COMMISSION y S WASHINGTON, D. C. 20$55 i Q <! l Y September 16, 1982 l

s C. . . . #f l

l l

Philadelphia Electric Company

]

ATTN: Mr. Edward G. Bauer, Jr. , Esq.

Vice President and General Counsel 2301 Parket Street Philadelphia, PA 19101 Gentlemen:

On July 19, 1082 the First Circuit Court of Appeals decided the New England ,

Power v. NRC Case No. 81-1839 concerning the assessment of fees for with-

- drawn applications. Th3 Court held that applicants may not be billed for

- the cost of reviewing withdrawn applications where the request for withdrawal was filed with the Commission before November 6,1981, the effective date of the Commission's interpretative rule concerning this matter. As a result

. of the Court decision and since the Fulton 1 & 2 construction permit applica-tion was formally withdrawn before November 6,1981, this is to advise you that the NRC will not bill Philadelphia Electric for the review costs as in-dicated in ny letter to you dated December 14, 1981.

Sincerely, v0UW 0IdAd William 0. Miller, Chief License Fee Management Branch Office of Administration cc: Hunton & Williams /

ATTN:- Mr. Donald P. Irwin 707 E?st Mair. Street Richmond, VA 23212 v.

O

- , ,, - > - - - ,