ML19347D920

Request for Extension Until 810515 to File Appeal & for Stay of ASLB 810218 & 0326 Orders Granting Applicant Withdrawal of Application W/O Prejudice & Denying Intervenor Petition for Reconsideration,Respectively.Certificate of Svc Encl

ML19347D920
Person / Time
Site:	05000376
Issue date:	04/06/1981
From:	Fernos G AFFILIATION NOT ASSIGNED
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
NUDOCS 8104140479
Download: ML19347D920 (4)

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m 6 April,1981

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7 (Ij g $@ ' O' UNITED STATES OF AMERIC A 4 N NUCLEAR REG UL ATORY COMMISSIO N (3 s

', ~~  ; .. , BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD (ASLAB) of xv .

S' Matter of

• PUERTO RICO ELECTRIC DOC KET NO. 50- 376 POWER AUTHORITY ( PREPA )

Applicant Proposed North Coast Nuclear Plant ( Unit 1 .m i GONZALO FERNOS, PRO SE, ET AL.

• Islote Ward, Arecibo, rPue)6$R}co"N,q, / /

Intervenors

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• • • • • • • • • • • • • • • • • I  % .

. t .3 "%.. y ? ig.- Ci APPLICATION FOR A TEMPORARY

• 4 STAY DECISIONS OF FEBRUARY 18, 1981 AND MARCH 26,1981 ; AfiD PETITION FOR AN EXTENSION OF TIME TO FILE AN APPEAL TUEREOF

~ Q ..- -q/{f' TO THE HONORABLE APPEAL BOARD :

. COMES NOW the undersigned Intervenor, Pro Se, and on behalf af Mernbers of Citizens for the Conservation of Natural Resources, Inc. (CCNR), hereinafter referred to collectively as Intervenors, and respectfully states, alleges and prays :

e 1.- That on March 26, 1981, the Licensing Board ( ASLB ) issued an ORDER as follows :

" Denying Intervenors' Petition For Reconsideration. . ." The Petition in question was filed by mail on March 3,1981

• and such an ORDER was served on March 27,1981. The Petition was seeking to have the Licensing Board overturn its ORDER of February 18, 1981, served on February 19, 1981, granting Applicant's withdrawal of its application without prejudice.

• NRC Staff erroneously argues in its belated response of March 23, 1981, that the relief sought by Intervenors should be denied as untimely because "Intervenors filed their petition for recon-sideration beyond the ten (10) days permitted by 10 CFR 5 2.771. Although the petition was al-legedly filed late, twelve (12) days after the serving of the ORDER requested to be reconsidered, it certainly was not filed late. That is so, because all Intervenors' filings are done by mail, so five (5) days should be added to the prescribed time limits as set forth in10CFRi 2.710. Furthermore, at the beginning of this proceeding in 1975, Intervenors requested from the Presiding Officer and the latter granted thct the deadlines should be further increased. Thus, NRC Staff's accusation of Intervenors' non-observance of decdlines is totally unfounded. On the contrary, it is NRC Staff who has incurred in non-observance of deadlines; e.g., NRC Staff response of March 23, 1981, was supposed to having been filed on March 15,1981 ( See 10 CFR 5 2.771 (b), but NRC Staff filed it eight (8) days late. Therefore, Attorney Jay M. Gutierrez, Esq., not the undersicfed Inte r, has incurred in violation of NRC Rules of Practice.

810.41.409 g 9g0790(

l Intervenors' position has been that the dismissal of the cose should have been with prejudice, thus Intervenors wish to pursue their appeal before the Appeal Board ( ASLAB ),

e 2.- That Intervenors' deadline to file on application for a stay and on appeal of the aforementioned ORDERS is due on April 16, 1981, notwithstanding the fact that such deadline con be otherwise further extended , according to a written ruling by a former Presiding Officer in1975.

e 3.- That for the oppeal and corresponding Brief to be filed in this cose, it is deemed necessary that the NRC Stoff make available to Intervenors the opinions of the Appeal Board to date. Such a request was made to the NRC Staff by the undersigned Intervenor by letter of Sep-tember 3,1980. In its reply of September 23, 1980, the NRC Staff through Attorney Henry J.

McGurren, Esq., stated, inter olio, that if "the proceeding continues, we will make arrange-ments to loan to the Local Public Document Room (LPDR) nearest you o microfiche set of NRCl.

We will also loan to the LPDR o microfiche reader." As for os Intervenors know, such arrange-ments have not yet been made. To simplify matters, however, Intervenors suggest that the NRC Staff furnish us with xerox copy of only those opinions regarding cases in which the dismissal had been granted offer having been contested, irrespective of whether it had been with or without prejudice. Such information should be made available to intervenors ten (10) days prior to the expiration of Intervenors' deadline, or before.

e 4.- That the undersigned Intervenor is currently engaged in the preparation of three (3 )

income tax returns whose deadlines are due on April 15, 1981, hence, the gathering of information for such undertaking would fully occupy the undersigned's time, thus precluding him from under-taking any other work such as the appeal in question.

. 5.- That since the withdrawal of the application itself is not in controversy, no one's interests are offected by a delay in resolving whether the dismissal should have been gron'ad with prejudice or not. I i

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o e 6.- That these Intervenors, Members of CCNR, residents and/or land owners in the vecinity of the area which was contemplated for being used to build the Nuclear Plant, and whose land and/or homes fall within the crea shown in the Site Safety Evoluotion Report of April 27,1979, have not been contacted yet to be informed about the connotation entailed by a dismissal of the opplication to build the Nuclear Plant without prejudice so as to assess their uncertain feelings, apprehensions and constant fear of being evicted or of having their land taken away from them at any moment in the future, thus feeling as if a " Damocles' sword" were always hanging over their heads. Therefore, the extent to which a dismissal of the application without prejudice would be prejudicial to the public interest has not been properly alleged, contested and adjudged.Intervenors believe that the Appeal Board should not foreclose the right of these persons, who are party to the proceeding, to have their day in court. To this end Inter-venors hereby request the Appeal Board to grant a stay of the Licensing Board ORDERS of Feb.18, 1981 and March 26, 1 981, so as to investigate the situation among those landowners and to try to obtain as many offidavits as possible from them that could attest to the fact that the granting of the dismissal of the application without prejudice would adversely offect their individual and collective interests as o community, e 7.- That unfounded is the Licensing Board's finding that intervenors have failed to assign any Board error in support of their Petition for Reconsideration of March 3,1981, and that Intervenors, "instead of addressing the Board's Memorandum and Order of February 18,1981, they direct their arguments to the Authority's Reply submitted in December 31, 1 981. The reason is very simple: Applicant's Reply of December 31,1980 and ASLB's ORDER of February 18, 1981, both use some arguments.*

• This is ostensibly evident by comparing crguments in Applicant's Reply of December 31,1980, pp. 8-9 and the Licensing Board's ORDER of February 18,1981, pp. 5-6.

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Furthermore, this cose entails a second application

• olthough carrying the some docket number. The established doctrine by courts is that a second dismissal of a second opplication be granted with prejudice. Moore's Federal Rules of Practice i 41.04.

e WHEREFORE, Intervenors respectfully pray the Appeal Board that under the authority delegated to it by the Commission (10CFRs 2.785) to grant Intervenors on extension of time until May 15,1981, to file on appeal under 10CFRs 2.762 ; to grant a temporary stay of the licensiny Board's ORDERS of February 18, 1981 and March 26, 1 981, until such time that inter-venors een h in a position to make a streng showing that their allegations shall prevail in their merits, including the time deemed necessary to obtain the offidavits and the serving by the NRC D -

Staff of the Appeal Board's decisions, both referred to above. f 4 e in Son Juan, Puerto Rico, this 6th day of April,1981.

Gonzalo Fern 6s, Pro Se, and representing Members of CCNR.

503 Borb6 Street Santurce, Puerto Rico 00912 TeIs. (809) 727-0087 / 727-2287 CERTIFICATE OF SERVICE BY Mall :

e l HEREBY CERTIFY : That on this some date copy of the above motion has been served by fist class or air mail upon the following : Samuel J. Chilk, Esq., Secretary of the Commission ;

Alan S. Rosenthal, Esq., Chairman, ASLAB ; Dr. John H. Buck, Member, ASLAB ; Sheldon J.

Wolfe, Esq., Chairman, ASLB ; Docketing and Service Section ; ( All the above bearing some address as follows : U.S. Nuclear Regulatory Commission, Washington, D.C. 20555); Maurice Axelrad, Esq., Lowenstein, Newman, Reis, Axelrod & Toll,1025 Connecticut Avenue, N.W.,

Washington, D.C. 20036 ; Henry J. McGurren, Esq., Counsel for NRC Stoff ; Jose F. Irizarry, Esq., General Counsel, PREPA, GPO Box 4267, San Juan, Puerto Rico 00936 ; Eng. Alberto  ;

Bruno Vega, Executive Director, PREPA, GPO Box 4267, San Juan, Puerto Rico 00936 ; and '

Dr. Tom 6s Morales-Cordonc, School of Medicine, University of PuertcrRico,,GPO Box 5067, Son Juan, Puerto Rico 00936. r

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t Gonzalo Fernos l

• The first application for the some project was made with regard to the ill-fated Aguirre Nuclear Plant. In 1972, Governor Luis A. Ferr6 withdrew that application when it become evident that the Licensing Board would not approve the site due to the fact that the reactor had been planned to be over Esmeroida fault. Consequently, later on the project was transferred to Islote Ward, Arecibo, Puerto Rico where its application was also withdrcwn for the second time, unexplainedly.

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