ML19321A507
| ML19321A507 | |
| Person / Time | |
|---|---|
| Site: | 05000376 |
| Issue date: | 07/18/1980 |
| From: | Axelrad M LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL, PUERTO RICO ELECTRIC POWER AUTHORITY |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8007230535 | |
| Download: ML19321A507 (11) | |
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UNITED STATES OF AMERICA Clfice of fha s Doch a /
NUCLEAR REGULATORY COMMISSION 6 sa BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )
)
PUERTO RICO ELECTRIC POWER )
AUTHORITY ) Docket No. 50-376
)
North Coast Nuclear Plant, )
(Unit 1) )
)
AUTHORITY'S RESPONSE TO NRC STAFF MEMORANDUM OF JUNE 27, 1980 I. Introduction 1980, In an unpublished Order in this proceeding, dated June 4, the Appeal Board ordered the NRC Staff and the Puerto Rico Electric Power Authority (Authority) to submit memoranda on the question of whether there is any procedure (short of withdrawal by an applicant) for dismissal of an application for a construction permit without a The Authority hearing on health, safety1 / and environmental issues.
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cubmitted its memorandum on June 27, 1980, as did the NRC Staff.
In an unpublished Order issued on June 30, 1980, the Appeal Board invited the Authority to file a memorandum in response to the NRC Staff Memorandum. The Authority hereby submits its response.
1/ " Authority's Memorandum in Response to Appeal Board's Order of June 4, 1980," (Authority's Memorandum). ,,
2/ "NRC Staff Memorandum in Response to Appeal Board's Order of June 4, 1980," (NRC Staff Memorandum) .
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II. Authority's Comments on NRC Staff Memorandum 3/
As we noted in our previous response 7 an adjudicatory board may possess inherent authority in certain circumstances to dismiss mat-
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ters on grounds of mootness. However, the Commission's regulations end decisions do not address the question of whether a board has inherent authority to dismiss a construction permit application as moot over the objections of an applicant, and we have not been able to discover any other precedent which purports to rule on this issue. Consequently, the status of the law on this point is un-gettled, and the question is res nova to the Appeal Board.
The NRC Staff reaches a different result in its memorandum, and states that precedent and the Commission's regulations estab-lish the inherent authority of an adjudicatory board to order an application withdrawn over the objections of the applicant for lack of intent to construct the facility.~4/ However, in our view, the regulations and precedents which the Staff cite are not applicable to the precise issue raised by the Appeal Board, and they are not conclusive regardin*g the power of a licensing board to dismiss an application under the-foregoing circumstances.
The Staff purports to find a basis for its conclusion in 10 C.F.R. S 2.107.-5/However, that section only permits an applicant 3/ Authority's Memorandum, pp. 11-18 4/ NRC Staff Memorandum, pp. 5-11.
5/ Section 2.107 (a) ' states in full The Commission may permit an applicant to with-draw an application prior to the issuance of a notice (Footnote continued on page 3)
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to withdraw its application; we find nothing therein which would authorize another party to request an adjudicatory board to compel an applicant to withdraw its application. Clearly, if the Commis-cion had intended S 2.107 to have a broader reach it could have 6/
readily drafted that section accordingly.
The Staff supports its interpretation of S 2.107 by reference to two Commission orders in Quanicassee.-7/ However, the facts and rulings in Quanicassee make it inapplicable to the question raised by the Appeal Board in the instant proceeding. In Quanicassee, a patitioner (not a party to a construction permit proceeding) 5/ (Footnote continued from page 2) of hearing on such terms and conditions as it may pre-scribe, or may, on receiving a request for withdrawal of an application, deny the application or dismiss it with prejudice. Withdrawal of an application after the issuance of a notice of hearing shall be on such terms as the presiding officer may prescribe.
(emphasis added). The NRC Staff Memorandum (p. 5) quotes S 2.107 (a) in part, but omits that portion which is empha-sized above. This omission is unfortunate, since the reader is provided with no indication that the section is addressed solely to applicants, and not to all parties in general.
-6/ The provisions of 10 C.F.R. S 2.107 should be contrasted, for example, with those of S 2.108 and S 2.605. Under S 2.107, it is the applicant who is permitted to withdraw an application;
' under S 2.108, it is the NRC Staff which is permitted to file a motion to dismiss an application for failure of the appli-cant to submit requested information; and under S 2.605, it is any party which may request the Commission to decline to initiate an early site review hearing. It is apparent to us that the Commission intended to restrict the use of each of these sections to specifically named parties. Thus, only the applicant, and not other parties, may invoke S 2.107 to with-draw an application. ,
7/ Consumers Power Company (Quanicassee Plant, Units 1 and 2), l CLI-74-29, 8 AEC 10 (1974) and CLI-74-37, 8 AEC 627 (1974). l L
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- V requested that the Commission (not a licensing board) compel an cpplicant to withdraw its application because the applicant decided 8/
to defer the Quanicassee project for approximately one year.
Following receipt of the petitioner's request, the Commission learned that the applicant had publicly announced its intention to cancel the project. The Commission then directed the applicant to "show cause" before the Commission as to why the application should not be withdrawn; whereupon the applicant voluntarily re-quested to withdraw its application and the Commission granted such request.
Quanicassee thus involved an instance when the Commission, exercising its own inherent authority, chose to order an applicant to show cause as to whether its application should be withdrawn.
The authority of the Commission itself to take such action is not here in question -- but nothing in Quanicassee indicates that any such authority has been delegated to licensing boards. More specifically, Quanicassee certainly cannot appropriately be cited for the proposition that the Commission there " determined that the Licensing Board [has] authority under 10 C.F.R. S 2.107 (a) to pass on the issue of whether an application may be ordered withdrawn for lack of intent to construct [a] project."-9/The Commission's only reference to S 2.107 in its rulings in Quanicassee occurred 8/ See "SEE's Response to Applicant's Petition to Withdraw Notice of Hearing and Motion for an Extension of Time to Answer Peti-tion to Intervene," dated May 16, 1974; "SEE's Motion to Com- '
pel Consumers Power Company to Withdraw Its Application, and -
for Relief in the Form of Copies of the Rules We Are Expected to Follow," dated June 8, 1974.
9/ NRC-Staff Memorandum, pp. 5-6 (emphasis added).
e ofter the applicant requested to withdraw its application. The Com-mission simply noted the obvious, i.e., that under S 2.107 such a request would normally be ruled upon by a licensing board, but that the circumsta.nces in Quanicassee made it appropriate for the Com-mission to rule thereon itself.-~10/ Nothing in such reference in-dicated that the Commission interpreted S 2.107 as authorizing a licensing board to act upon a motion to order withdrawal filed by a party other than the applicant.
The Staff also refers to 10 C.F.R. S 2.718 as the source of a licensing board's alleged authority to dismiss an application 11/
for a project which an applicant has no intention of constructingT~
However, that section only grants general powers to a licensing board to regulate the course of a proceeding. It does not ex-plicitly grant authority to a licensing board to dismias an applica-tion, and the Staff cites no decision which has interpreted S 2.718 to provide a board with such authority in situations similar to the instant case. As we have stated previously, perhaps such cuthority can be implied from the powers granted to administrative tribunals under the Administrative Procedure Act and S 2.718, but .
l we believe that such authority should not be lightly inferred.--12/
We find nothing in the 6:cisions cited by the Staff which would
__/13 support the Staff's conclusion.
l_0_/ Supra, 8 AEC_at 62'/ n.l.
11/ NRC Staff Memorandum, pp. 6-7.
12/ Authority's Memorandum, p. 16.
13/ The Staff's reference.to offshore Power Systems (Floating Nu-clear Power Plants) , ALAB-489, 8 NRC 194 (1978$, aff'd CLI-79-9,
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(Footnote' continued on page 6)
s Finally, the Staff cites a number of federal decisions in cupport of its argument that a licensing board may dismiss an appli-4:
cation on grounds of.mootness. However, these decisions are in-apposite to the present petition to dismiss the Authority's application, because each case involved the dismissal of a proceed-ing without an evidentiary hearing under circumstances in which a 14/
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party failed to satisfy a regulatory requirement. The Authority has complied with all requests for information, and has not vio-lated any of the Commission's regulatory requirements.~~15/ We have 13/ (Footnote continued from page 5)
While the Appeal 10 NRC 257 (1979) is somewhat anomalous.
Board did hold that it may inquire into the Stati4s reason for delaying issuance of an Environmental Impact Statement (EIS),
it also held that it lacked the authority to take action (such as dismissal of the Staff as a party) if it failed to issue the EIS by a certain date. 8 NRC at 206-07. If anything, the decision emphasizes that the NRC adjudicatory tribunals Jack certain authority which may be held only by the Commissi~ it-self.
14/ In Rocky Mountain Power Company v. Federal Power Commission, 409 F.2d 1122 (D.C. Cir. 1969), an application was dismissed when an applicant failed to submit requested information.
(See 10 C.F.R. S 2.108 for an analogous provision in the Commission's regulations). In National Labor Relations Board i
- v. Aaron Convalescent Home, 479 F.2d 736 (6th Cir. 1973) and in Liquid Carbonic Corp., 116 NLRB No. 101, 6 Ad. L. 2d 416 (1956), a judgment was rendered against a party who failed to answer x enmplaint within the prescribed time limits. In United States v. Storer Broadcasting Company, 351 U.S. 192 (1956), an r.pplication was dismissed because the applicant al-ready owned the maximum number of radio etations permitted under the regulations of the Federal Communications Commission.
In Federal Power Commission v. Texaco, Inc., 377 U.S. 33 (1964),
an application was dismissed because it contained " pricing pro-
. visions" which-were proscribed by regulation. ,
1 15/ We assume that the Staff is not arguing thatSuch deferral of a pro-a position
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ject violates the Commission's regulations.
would be inconsistent with a long line of Commission precedents.
(Footnote-continued on page 7)
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s discovered no cases, either before the Commission or before other cgencies, in which an application has been involuntarily dismissed in such circumstances without a hearing on the merits of the appli-cation. --16/
In addition to our disagreement with the Staff's interpreta-tion of regulations and precedents, we should also point out that the NRC Staff Memorandum contains a significant misstatement of fact.
It alleges that after the proceeding was commenced, "The Applicant 17/
cpparently took little action to forward this matter." It is diffi-cult to comprehend the basis of this statement, since the Authority 15/ (Footnote continued from page 6)
See Wisconsin Electric Power Company (Koshkonong Nuclear Plant, Units 1 and 2), CLI-75-2, 1 NRC 39, 42 (1975) ; Detroit Edison Company (Greenwood Energy Center , Units 2 and 3) , LBP-75-56, 2 NRC 565, 567 (1975); Puerto Rico Water Resources Authority (North Coast Nuclear Plant, Unit 1), Order, p. 4 (May 1, 1978).
See also Potomac Electric Power Company, (Douglas Point Nu-clear Generating Station, Units 1 and 2) , ALAB-277,1 NRC 539 ,
(1975); Houston Lighting and Power Company (Allens Creek Nu-clear Generating Station, Units 1 and 2), LBP-75-66, 2 NRC 776, 779 (1975); 10 C.F.R. S 2.606 (b) (2) . Deferrals of a project for reasons clearly explained by an applicant to the licensing board and to all parties can in no way be construed as incon- l sistent with Commission policies calling for " expeditious i determination of applications" (NRC Staff Memorandum, p.10) ,
particularly when no further explanation was ever sought by J the board or any party.
16/ We cannot understand why the Staff would cite the Sterlinc deci- ,
sion particularly in a footnote dealing with involuntary c,is- l missal. NRC Staff Memorandum, p. 6 n.ll. As the~ Appeal Board -
explicitly noted, the Sterling decision (which involved an applicant's request that a proceeding be dismissed) did not reach the question of a licensing board's authority to order an involuntary dismissal. Rochester Gas and Electric Corp., (Sterl-ing Power Project, Nuclear Unit No. 1), 11 NRC -- , slip op at ..
5 n.4 (June 17,1980) . .
17,/ NRC Staff Memorandum, p. 10.
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i has provided extensive additional information requested by the Staff (including information obtained through a Puerto Rico seismic net-work established in cooperation with the USGS to satisfy inquiries of the Staff and USGS) in sufficient detail and scope to enable the Staff to issue both a Final Environmental Statement in 1977 and the Staff's Site Safety Evaluation Report in 1979, scarcely a year ego.
One further point mentioned in the NRC Staff Memorandum de-serves comment. The Staff asserts that the Licensing Board should have inquired into these matters and should "have held hearings if appropriate, on whether the Applicant has abandoned its' intent
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to construct the North Coast facility." To the extent that the Staff is pointing out that an inquiry into the matters raised by the petition would not necessarily require a hearing, we agree.
Motions are usually decided upon the filings of the parties without opportunity for a hearing, cross-examination, or oral argument, though an adjudicatory tribunal may provide a hearing at its dis-cretion. Thus, we assume that, even if the matter is remanded to the Licensing Board, it will be made clear that the Board may be able to dispose of the petition on its face or on the basis of further pleadings (including affidavits, if necessary) requested from the parties.
III. Conclusion The regulations and precedents which the NRC Staff cite are inapplicable to this proceeding. None of them address involuntary 1
18/ NRC Staff Memorandum, p. 11 (emphasis added, footnotes omitted).
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dismissal of an application in a situation in which the applicant s
has not violated any regulatory requirement and has reaffirmed its
. intention not to abandon its application, and we have been unable to discover any authority which addresses the power of a licensing board to dismiss an application in such a situation. Consequently, for the reasons stated in the Authority's Memorandum, we adhere to our position that interlocutory review of the Licensing Board's Order is not warranted and that, if such review is continued, the Order should be affirmed without unnecessary exploration of the complex questions associated with determinations as to any inherent authority to dismiss an application involuntarily.
Respectfully submitted, Lowenstein, Newman, Reis,
.; Axelrad & Toll 1 1025 Connecticut Avenue, NW Washington, D. C. 20036 (202-862-8400)
July 18, 1980 a
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0 v UNITED STATES OF AMERICA s 5 NUCLEAR REGULATORY COMMISSION l//, p 43 %, 4 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD Q>
fd In the Matter of )
N I *
)
PUERTO RICO ELECTRIC POWER )
AUTHORITY ) Docket No. 50-376
)
North Coast Nuclear Plant, )
(Unit 1) )
)
CERTIFICATE OF SERVICE I hereby certify that copies of " Authority's Response to NRC Staff Memorandum of June 27, 1980" have been served upon the follow-ing by deposit in the United States mail, first class or air mail this 18th day of July, 1980:
Alan S. Rosenthal, Esq. Secretary of the Commission Chairman U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D. C. 20555 Appeal Board U.S. Nuclear Regulatory Commission Attention: Docketing and Washington, D. C. 20555 Service Section Dr. John H. Buck Sheldon J. Wolfe, Esq.
Member Atomic Safety and Licensing Atomic Safety and Licensing Board Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Washington, D. C. 20555 Dr. Richard F. Cole Michael C. Farrar, Esq. Atomic Safety and Licensing Member Board Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Appeal Board Washington, D. C. 20555 U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Mr. Gustave A. Linenberger Atomic Safety and Licensing Henry J. McGurren, Esq. Board Office of the Executive U.S. Nuclear Regulatory Commission Legal Director Washington, D. C. 20555 U.S. N; lear Regulatory Commission ,
Washington, D. C. 20555
I Gonzalo Fernos German A. Gonzalez Chairman Mission Industrial Citigens for the Conservation G.P.O. Bcx 20434 or' Natural Resources, Inc. Rio Piedras, PR 00925 503 Barbe Street Santurce, PR 00912 Gerinan A. Gonzalez Suite 501 Eng. Francisco Jimenez Condominio Le Mans Box 1317 Avenida Munoz Rivera 602 Mayguez, PR 00708 Hato Rey, PR 00919 Lowenstein, Newman, Reis, Axelrad & Toll 1025 Connecticut Avenue, NW Washington, D. C. 20036 (202-862-8400)
Attorneys for Puerto Rico Electric Power Authority July 18, 1980 i
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