ML19323G741
| ML19323G741 | |
| Person / Time | |
|---|---|
| Site: | 05000376 |
| Issue date: | 05/29/1980 |
| From: | Cole R, Linenberger G, Wolfe S Atomic Safety and Licensing Board Panel |
| To: | Fernos G AFFILIATION NOT ASSIGNED |
| References | |
| NUDOCS 8006060577 | |
| Download: ML19323G741 (4) | |
Text
0 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION g'[ D%
THEATOMICSAFETYkNDLICENSINGBOARD
'I CCCKEir"D Sheldon J. Wolfe, Esquire, Chairman Usns Gustave A. Linenberger, Jr., Member MAY 3 0 G80 > t Dr. Richard F. Cole, Member Q -..m a cfth secrey q C,
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In the Matter of i
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PUERTO RICO ELECTRIC POWER AUTHORI1Y )
Docket No. 50-376 CP
)
(NorthCoastNuclearPlant, Unit 1)
)
ORDER (May 29, 1980)
On April 30, 1980, Gonzalo Fernos, for himself, and on behalf of members of Citizens for the Conservation of Natural Resources, Inc.
(Intervenors), filed a " Petition Requesting Evidentiary Hearings To Request Applicant To Show Cause Why Their Application Should Not Be Dismissed For Lack Of Intention To Build". Applicant and Staff filed responses respec-tively on May 19 and May 21, 1980.
Intervenors request that this Board (a) conduct a show cause hearing regarding Applicant's intention to proceed in seeking an application for a construction permit, (b) issue an order dismissing with prejudice the instant application in the event we find that the Applicant does not intend to con-struct the nuclear plant, and (c) impose upon the Applicant costs and damages in the amount of $10,000.00 on behalf of the Intervenors for causing litiga-tion upon a meaningless application.
Intervenors assert that Applicant has " dropped" its intention to construct the nuclear plant as evidenced by filings of Motions of Desistance in the Court of Expropriation of the Superior Court of Puerto Rico wherein j
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Applicant requests that, upon the refunding of monies paid by Applicant for expropriating the site, title to the land should revert to various landowners.
Intervenors allege that Applicant has concealed its intention not to con-struct the plant and has written down the actual costs incurred in order to mislead current and potential bondholders. They cite a 1979 Interim Report prepared by the National Research Council of the National Academy of Science which, in part, states that nuclear power is ruled out because the capacity of the proposed nuclear plant would outstrip need and because it could not be completed within the next decade when some additional power would be needed.
They also cite the Governor of Puerto Rico's Report to the Legislature in January,1980 which, while speaking about different sources of energy being studied for future use, is silent about nuclear energy.
Finally, the Inter-venors cite a document prepared in June 1979 by the Office of Energy of Puerto Rico attached to the Governor's Office, and assert that it raises serious doubts about the use of nuclear energy because of the many unanswered questions related to such technology, mainly, waste disposal, availability of uranium, cost of shutdown of reactors, etc.
l The NRC Staff argues that, on legal grounds, the Petition (hereafter f
l referred to as the Motion) should be denied.
The Applicant also argues that, as a matter of law, the Motion should be denied.
However, Applicant proceeds to address the merits of the allegations advanced by the Intervenors.
We do not reach and decide the merits of the Intervenors' arguments and/or allegations. As a matter of law, the instant Motion mJst be and is denied.
In the first place, we lack the authority to consider a Motion For
An Order To Show Cause. As reflected in 10 C.F.R. 96 2.202, 2.206, a request initiated by any person for an Order To Show Cause must be directed to the NRC technical staff, which may institute a proceeding to modify, suspend, or revoke a license or for such other action as may be proper by serving on the 1/
licensee an order to show cause.
Secondly, if the instant motion be con-strued as a motion requesting that an order be issued dismissing the application should the Board determine, after an evidentiary hearing, that Applicant no longer intends to construct the nuclear plant, the motion must be denied.
In light of Section 189 of the Atomic Energy Act of 1954, as amended, 42 U.S.C. 9 2239, and the Commission's regulations,10 C.F.R. 5 2.104, which mandate hearings on applications for construction of nuclear power plants, there is no procedure (short of withdrawal by the Applicant) for a Board's disposition of such an application without a hearing on health, safety and environmental issues. Thirdly, if the instant motion be construed as a Motion For Summary Disposition, it must be denied because 10 C.F.R. I 2.749(d) states that such a motion may not be used to determine the ultimate issue as to 2/
whether a construction permit shall be issued.
Finally, to the extent that the Intervenor seeks damages, such a claim is clearly beyond our authority to consider.
To the extent that the Intervenors, in seeking costs, are actually claiming funding for past participation, such a claim is clearly precluded 1/ In passing, we note that 10 C.F.R. 5 2.4(j) defines " licensee" as meaning "a person who is authorized to conduct activities under a license or construc-tion permit issued by the Commission". Obviously, the Applicant herein, seeking a construction permit, is not a " licensee".
2/ Again, in passing, we note that we have had occasion in the past to refer to this preclusive provision of 9 2.749(d).
See our unpublished Order of May 1, 1978 which denied Intervenors' Motion To Dismiss or to Grant Alternative Relief.
a because, in the time frame involved herein, the Comission had determined not to initiate a program to provide funding for intervenors.
Nuclear Regulatory Comission (Financial Assistance to Participants in Comission Proceedings),
Intervenors' claim for past expenditures has not been advanced by the recent decision in Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit No.1), CLI-80-19,11 NRC (May16,1980),
wherein the Comission stated that it declined to consider funding intervenors in that case in light of the advice of the Comptroller General and its clear reading of the legislative history associated with the fiscal year 1980 appro-priations legislation, but noted that it is in favor of intervenor funding as was clearly indicated by the fiscal year 1981 budget submission and subsequent Congressional testimony.
THE ATOMIC SAFETY AND LICENSING RD J
98&L Strs,tave A. Linenbergeg J r.,
Member u
Dr. Rithard F. Cole, Member
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Sheldon J. Vlfe, Es@ ire Chairman Dated at Bethesda, Maryland this 29th day of May, 1980.
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