ML19323D922
| ML19323D922 | |
| Person / Time | |
|---|---|
| Site: | 05000376 |
| Issue date: | 05/21/1980 |
| From: | Mcgurren H NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8005220546 | |
| Download: ML19323D922 (7) | |
Text
.
r 05/21/80 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of PUERTO RICO WATER RESOURCES
)
AUTHORITY Docket No. 50-376 (North Coast Nuclear Plant, Unit 1)
)
NRC STAFF'S RESPONSE TO INTERVENORS' MOTION DATED APRIL 30, 1980 INTRODUCTION On April 30, 1980, Gonzalo Fernos, for himself, and on behalf of the members of Citizens for the Conservation of Natural Resources, Inc. (Inter-venors) filed a " Petition Requesting Evidentiary Hearings to Request Appli-cant to Show Cause Why Their Application Should Not Be Dismissed for Lack of Intention to Build".
By this petition, Intervenors have requested the Atomic Safety and Licensing Board (Licensing Board) to:
1.
Conduct a show cause hearing in Puerto Rico not later than July 1, 1980, regarding the Applicant's intention to pursue the application; 2.
Issue an order dismissing with prejudice the above application; and 3.
Impose on the Applicant costs and damages in the sum of
$10,000 on behalf of the Intervenors.
The Staff responds to each request below.
I.
REQUEST FOR SHOW CAUSE HEARING Intervenors' first request, that this Board conduct a show cause proceeding to determine if the Applicant intends to proceed with the application, should h
80052206@
be denied. The Commission's regulations dealing with show cause orders, Subpart B of Part 2 of the Commission's Rules of Practice (10 CFR 62.200, g seq.), prescribe that the Staff, not the Licensing Board, issue such orders and that such orders are issued only where licensees have failed to live up to " standards of conduct required of them by statute, regulation, rule, board action, or licensing conditions".E Intervenors' motion fails because requests for show cause actions, as prescribed by 10 CFR $2.206, must be filed with the Staff and not the Board and concern matters of compliance by a licensee, not an applicant. Accordingly, the Staff believes that the first relief requested must be denied.
II.
REQUEST THAT THE APPLICATION BE DISMISSED Intervenors second request for relief,U that the action be dismissed, j
should also be denied.
In support of this request for relief Intervenors assert in paragraph num-bered (1) of their petition that Applicant's own documentation demonstrates that the Applicant no longer intends to construct the North Coast plant.
In paragraph numbered (2) Intervenors identify court documents as well as j
y See Philadelphia Electric Company (Fulton Generating Station, Units 1 and 2), LBP-79-23, 10 NRC 220, 222 (1979).
y A similar request for dismissal was made by Intervenors in their " Motion to Dismiss or to Grant Alternate Relief" dated February 27, 1978. The Intervenors argued, inter alia, that there was no indication that the Applicant would ever submit a time-table for proceeding with its appli-cation. The Board denied the Intervenors' motion in its " Order of the Board Concerning Intervenors' Motion to Dismiss or to Grant Alternative Relief", dated May 1, 1978.
. research and governmental reports which Intervenors assert demonstrate Applicant no longer intends' to construct the North Coast plant.
In sum, the sole basis for Intervenors' request is the same one advanced in their pre-vious Motion to Dismiss, dated February 27, 1978, that Applicant must proceed with the processing of its application or have the application dismissed.
As this Board pointed out in its denial Oi that motion (1) "there is no raquirement in any Commission regulation or underlying statute that requires i
an Applicant to proceed with the processing of its application in accordance with any set time scale" U and (2) the motion is, in essence, one for summary disposition pursuant to 10 CFR 62.749 which must fail because such a mc? Lii may not be used to detennine the ultimate issue as to whether a construction permit shall be issued.O The lack of a requirement in any Commission regulation or underlying stat-ute that applicants proceed with the processing of their application in accordance with any set time period was noted by another licensing board panel where a similar motion was filed when an applicant decided to postpone work on a project and extend the time schedule for commercial operation.
Detroit Edison Company (Greenwood Energy Center, Units 2 and 3), LBP-75-56, 2 NRC 565, 567 (September 17, 1975).
i The second reason noted above for this Board's earlier denial of Inter-venors' motion to dismiss - that the motion is in essence a denial of the
-3/
" Order of the Board Concerning Intervenors' Motion to Dismiss or to Grant Alternative Relief", dated May 1, 1978, at 4.
9 Ld-
. l l
entire application and, accordingly, is in direct conflict with 10 CFR 52.749(d), has been recognized in other licensing proc.eedings.
In Green-wood, like here, the relief sought by the motion was that the application for the construction permit be denied with prejudice. The Licensing Board there noted that this was in conflict with the express provisions of 10 CFR 62.749(d) barring summary disposition on "the ultimate issue as to whether 4
the permit shall be issued."
(2 NRC, at 569) Dismissal of the application by i
j sumary disposition was also sought by Intervenors in [ublic Service Company i
of New Hampshire, et al. (Seabrook Station, Units 1 and 2), LBP-74-36, 7 AEC 877, 879, where the Board denied the motion citing the language of 10 CFR 52.749(d).E 1
To the extent this motion is construed as being filed pursuant to 10 CFR l
92.605 of the Comission's regulations to request that the Commission decline to initiate an early hearing or render an early partial decision on an issue or issues of site suitability, it must be denied for completely failing to assert any ground supporting the motion (see generally,10 CFR 92.730).
Intervenors have not, in accordance with Section 2.605, alleged any facts showing that such an early hearing or decision would in any way prejudice later NEPA reviews of alternative sites (10 CFR 92.605(b)(1)) or that an 5]
A motion to dismiss an application was also denied in Boston Edison Company, et al. (Pilgrim Nuclear Station, Unit 2), LBP-75-15,1 NRC -
419, 420 (1975). The Board there noted that the motion was inept as a motion for sumary disposition under 10 CFR 6 2.749.
Furthermore the Board stated "... it is clear that in the face of Section 189 of the Atomic Energy Act, as amended, and the Comission's pertinent regulations affecting mandatory hearings on applications for con-struction of nuclear pcwer plants, there is no procedure (short of withdrawal by the applicant) for the disposition of such an applica-tion without a hearing...."
_.. _, _.. ~ _
early partial decision on any issue would not be in the public interest (10 CFR 92.605(b)(2)).
Intervenors merely allege facts showing that the Applicant does not intend to pursue its application. As we discussed above, this showing is insufficient to support the relief requested.
For the reasons stated above, we believe that the Intervenors' second relief request must be denied.
III.
REQUEST THAT THE APPLICANT PAY INTERVEN0RS LITIGATION EXPENSES Intervenors' third and final request, that the Applicant pay Intervenors
$10,000 "for compelling us to litigate for five years", should also be denied. The Staff has reviewed the Commission's statutory authority, Atomic Energy Act of 1954, as amended (42 U.S.C. 52011, eji seq.) and the National Environmental Policy Act of 1969, as amended (42 U.S.C. 94321, ej. seq.), as well as the Commission's regulations and can find no basis which would allow this Board to grant the relief requested.
IV.
CONCLUSION For the reasons stated above, the Staff urges that Interveners' motion be denied.
Respectfully submitted,
,, 'I (Y
. ('
j N<A v c er:rj "M Gurren Henry'J.
Counsel for NRC Staff Dated at Bethesda, Maryland this 21st day of May,1980.
l
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
PUERTO RICO WATER RESOURCES Docket No. 50-376 AUTHORITY (North Coast Nuclear Plant, Unit 1)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S RESPONSE TO INTERVENORS' MOTION DATED APRIL 30, 1980" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Com-mission's internal mail system, this 21st day of May, 1980:
Sheldon J. Wolfe, Esq., Chairman
- Alberto Bruno Vega, Assistant Atomic Safety and Licensing Board Executive Director, Planning and U.S. Nuclear Regulatory Commission Engineering Washington, DC 20555 Puerto Rico Water Resources Authority G.P.O. Box 4267 Dr. Richard F. Cole
- San Juan, PR 00936 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Mr. Gonzalo Fernos, Chairman Washington, DC 20555 Citizens for the Conservation of Natural Resources, Inc.
Mr. Gustave A. Linenberger*
503 Barbe Street Atomic Safety and Licensing Board Santurce, PR 00912 U.S. Nuclear Regulatory Commission Washington, DC 20555 Esq. German A. Gonzalez Attorney for Mision Industrial, Inc.
Maurice Axelrad, Esq.
Mision Industrial De Puerto Rico Lowenstein, Newman, Reis, G.P.O. Box 20434 1025 Connecticut Avenue, N.U.
Rio Piedras, PR 00925 Washington, DC 20036 Mr. Mario Roche Velazquez Esq. Jose F. Irizarry Gonzalez Executive Director, General Counsel Mision Industrial, Inc.
Puerto Rico Water Resources Mision Industrial De Puerto Rico Authority G.P.O. Box 20434 G.P.O. Box 4267 Rio Piedras, PR 00925 San Juan, RP 00936
_m. -
Eng. Francisco Jimenez DocketingandServiceSection(7)*
Box 1317 Office of the Secretary Mayaguez, PR 00708 U.S. Nuclear Regulatory Commission Washington, DC 20555 Atomic Safety and Licensing Board Panel
- U.S. Nuclear Regulatory Commission Washington, DC 20555 Atomic Safety and Licensing Appeal Panel (5)*
U.S. Nuclear Regulatory Commission Washington, DC 20555
~ -l
?,','
r a > :c Henry J. McGurren Counsel for NRC Staff
.