ML19351D704
| ML19351D704 | |
| Person / Time | |
|---|---|
| Site: | 05000376 |
| Issue date: | 10/08/1980 |
| From: | Mcgurren H NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 8010140571 | |
| Download: ML19351D704 (21) | |
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O UNITED STATES OF AMERICA NUCLEAR REGULATORY COMilSSION BEFORE THE COMMISSION l
In the Matter of
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PUERTO RICO ELECTRIC POWER
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Docket No. 50-376 AUTHORITY (North Coast Nuclear Plant, Unit 1)
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NRC STAFF RESPONSE TO INTERVEN0RS' MOTION FOR DIRECTED CERTIFICATION l
l Henry J. McGurren i
Counsel for NRC Staff l
Dated at Bethesda, Maryland this 8th day of October,1980 l
8 01014057l *
, TABLE OF CONTENTS Page I.
INTRODUCTION.........
1 II. B AC KG RO UN D..........................
2 III. DISCUSSION..........................
6 A.
The Instant Motion For Directed Certification By The Commission Is Premature 6
B.
A Denial Of Certification Will Neither Cause Serious Irreparable Harm Nor Disrupt The Proceeding 7
C.
Intervenors Have Not Demonstrated That The Dismissal Should Be "Wi th Prejudice"................
8 D.
Intervenors Have Failed To Demonstrate Any Justification For Their Request That The Commission Direct The Licensing Board To Complete The Evidentiary Hearing Concerning Applicaa+'s Intent To Complete Construction..
12 IV. CONCLUSION..........................
14 5
I 1
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l TABLE OF CITATIONS Page Judicial Proceedings:
Supreme Court f
Cnne v. West Virginia Pulp & Paper Co., 330 U.S. 212 (1974)....
11, 12 Federal Communications Comission v. Pottsville Broadcasting Co.,
309 U.S. 134 (1940).......................
12 i
Federal Trade Commission v. Advertising Service Co., 344 U.S. 392 12 (1965)
Federal Trade Comission v. Roladom Co., 316 U.S.149, 12 l
(1942)
Jones v. Securities and Exchange Commission, 298 U.S.1 (1936) 9,11,13 Lawlor v. National Screen Service Co., 349 U.S. 322 (1955) 12 National Labor Relations Board v. Denver Building Council, 341 U. S. 6 7 5 ( 19 51 ).......................
12 Courts of Appeal Connecticut Light & Power Co. v. Federal Power Comission, 557 F.2d 349 (2d Cir.1977) 12 l
Durham v. Florida East Coast R., 385 F.2d 366 (5th Cir.1967)...
10 Wi1 wording v. Swenson, 502 F.2d 844 (8th Cir.1974)........
12 Nuclear Regulatory Commission Proceedings:
Nuclear Regulatory Comission Consumers Power Co. (Quanicassee Plant, Units 1 and 2), CLI-74-37, 8 AEC 627 (1974) 6 i
Houston Lighting & Power Co. (South Texas Project, Units 1 & 2),
CLI-77-13, 5 NRC 1303 (1977) 12 Pennsylvania Power & Light Co. (Susquehanna Steam Electric Station, Units 1 & 2), CLI-80-17,11 NRC 678 (1980), on remand ALAB-595, 11 NRC 761 (1980)........................
6
- fii -
TABLE OF CITATIONS (Cont'd)
Page Atomic Safety and Licensing Aopeal Board Alabama Power Co. (Joseph M. Farley Nuclear Power Plant, Units 1 & 2 ), 7 AEC 210 (1974 ).....................
12 Pennsylvania Power & Light Co. (Susquehanna Steam E'ectric Station, Units 1 & 2), ALAB-595,11 NRC 761 (1980)........
6, 8 Potomac Electric Co. (Douglas Point Nuclear Generating Station, Units 1 & 2), ALAB-277,1 NRC 539 (1975).............
10 Public Service Co. of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-405, 5 NRC 1190 (1977)........
7, 8 Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-595, 11 NRC 761 (1980) 6,7 Public Service Electric & Gas Co. (Salem Nuclear Generating Station, Uni t 1), ALAB-588, 11 NRC 533 (1980)............... 7,8 Puerto Rico Electric Power Authority (North Coast Nuclear Plant, Unit 1), ALAB-605,12 NRC (August 11,1980) 5 Puerto Rico Water Resources Authority (North Coast Nuclear Plant, Unit 1), ALAB-361, 4 NRC 625 (1976) 7 Puerto Rico Electric Power Authority (North Coast Nuclear Plant, Unit 1), ALAB unpublished Order, Jur.e 4,1980 7
Pucet Sound Power and Light Co. (Skagit Nuclear Power Project, Units 1 & 2), ALAB-572,10 NRC 693 (1979) 8 Toledo Edison Co. (Davis Besse Nuclear Power Station, Units 1 & 2),
ALAB-300, 2 NRC 727 (1975).........
7 Atomic Safety and Licensina Board Boston Edison Co. (Pilgrim Nuclear Generating Station), LBP-74-76, 8 AEC 324 (1974)......................... 10, 11
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TABLE OF CITATIONS (Cont'd)
Page Puerto Rico Electric Power Authority (North Coast Nuclear Plant, Unit 1), LBP-80-15,11 NRC 765, reversed, ALAB-605,12 NRC (August 11, 1980)............
4 Treatises:
Berron a Holtzoff, Federal Practice & Procedure, Vol. 2, h912 (Wright ed.).......................
10 Davis, Administrative Law Treatise (1958), 818.04 '........
12 Davis, A_dministrative Law Treatise (1958), 518.06........
12 Regulations:
10 C FR Sec. 2.107 (a ).......................
8 10 ' C FR S ec. 2. 718 ( i ).......................
7, 8 10 CFR Sec. 2. 730( f).......................
6 10 CFR Sec. 2.785 6,7, 8 10 CFR Sec. 2.786 6
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
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PUERTO RICO ELECTRIC POWER
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Docket No. 50-376 AUTHCRITY
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(North Coast Nuclear Plant, Unit 1
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NRC STAFF RESPONSE TO INTERVEN0RS' MOTION FOR DIRECTED CERTIFICATION I.
INTRODUCTION On September 11, 1980, the Applicant, Puerto Rico Electric Power Authority, filed a document entitled " Motion for Temination of Proceeding" accompanied by a document with the same date entitled " Withdrawal of Application."1/
On September 18, 1980 the Intervenors, Gonzalos Fernos and Citizens for the Conservation of Natural Resources, Inc., filed before the Commission a document entitled " Motion for Direct Certification to Request Application Be Dismissed with Prejudice" (" Motion")2_/ and on the same date filed before the Licensing Board its " Motion for a Stay of Proceedings." The relief sought 1/
The application was filed by the Applicant for a construction pemit for a pressurized water nuclear reactor designated as the North Coast Nuclear Plant, Unit I to be located on the north central coast of Puerto Rico (Islote).
This application was noticed in the Federal Recister on February 14, 1975 (40 Fed. Reg. 6835).
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A document entitled " Addendum to Motion for Direct Certification,"
(" Addendum") dated Septem M r 18, 1980 was attached.
_ _ _ _ by the req 9est for directed certification is a Canmission ruling dismissing the application with prejudice.
In the alternative the Intervenor requests that an order be granted directing the Licensing Board to complete the evidentiary hearing concerning the Applicant's intent to construct the facility "to enable the licensing board to know the full facts why the dismissal cannot be less than with prejudice."3/ The basis for the relief requested is that a Licensing Board dismissal of the application without prejudice would allow the Applicant to file an application in the future and could burden the Intervenors with further litigation should the Applicant refile such an application in the future.S/ Intervenor further states that to allow the Licensing Board to first rule on the motion to dismiss would be "too slow a process."5/ Thus it seeks to have the Commission decide this issue in the first instance.
For the reasons set forth below the Staff opposes the Intervenors' motion.
II.
BACKGROUND On February 14, 1975, a notice of hearing providing opportunity for leave to intervene in this construction permit proceeding was given.6/
Pursuant to 3/
Motion, at p. 2 (emphasis in original).
4/
Addendum to Motion for Director Certification, ("Addendue"), September 18, 1980, paragraph 7.
5/
Addendum, paragraph 8.
j/
i that notice, Intervenors were admitted as parties by the Licensing Board.E By letters dated December 3 and December 5,1975,E Applicant infomed the parties of its decision to " postpone indefinitely the project" based primarily on economic considerations. However, it requested an early site review at the Islote site. Accordingly, Applicant asked that the proceeding be con-tinued with the objective of the issuance by the Board of a partial initial decision on site suitability and site-related environmental issues.EI On February 16. 1977, Applicant advised the Board that due to a change in its top management a review of the timing of new generating capacity in Puerto Rico, including nuclear generation, was being undertaken.
On April 27, 1979, the Staff published its Site Safety Evaluatha Report concluding that the proposed Islote site for Nortn Coast Nuclear Plant (Unit 1) is acceptable under the guidelines of 10 C.F.R. Part 100.
In a status report to the Board dated December 28, 1979, Applicants stated that their next baseload generating unit would be a three-hundred megawatt (300 MW) coal-fired unit, thereby necessitating the deferral "for at least one year, and, in all likelihood, for a couple of years" further consideration of nuclear capacity at the Islote site.
y Memoranoum and Order, August 6,1975.
8/
Letter from William Miranda Marin to Bernard [ sic] Rusche (December 3, 1975).
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Letter from Maurice Axelrad to James R. Yore, Richard F. Cole and Gustave Linenberger (December 5,1975).
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10/
Id., at p. 2.
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l 1 On April 30, 1980 Intervenors filed with the Licensing Board a motion whic.1 asked Evidentiary Hearings to Request Applicant to Show Cause Why Their Appli-cation Should Not Be Dismissed for Lack of Intention to Build." This motion requested the presiding 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.
On May 29, 1980, the Licensing Board issued its " Order," LBP-80-15,11 NRC l
765, (hereinafter " Slip. Op."), which stated:
We do not reach and decide the merits of the Intervenors' argu-ments and/or allegations. As a matter of law, the instant Motion must be and is denied.
(11 NRC at767).
In denying the requested relief, the Licensing Board ruled that it had no authority to issue an order involuntarily dismissing the construction perinit application on the ground, as asserted by petitioner, that the Applicant had l
abandoned its purpose to build the facility in question. The Appeal Board l
upon a sua sconte review of the Licensing Board's Order, noted that "... one of the holdings contained therein [the Licensing Board Order] has such a i
questionable basis that, given its possible precedential importance, review of it on our own initiative may now be warranted."E It further stated:
_1_1/ Order of Atonic Safety and Licensing Appeal Board, June 4,1980, p.1.
. It is true, of course, that neither the Atomic Energy Act nor the Rules of Practice specifically establish a procedure for dismissing (or denying) a construction permit application on the ground that the applicant has clearly abandoned its purpose to build the facility in question.
It scarcely perforce folicws, however, that a licensing board is required to retain on its docket in perpetuity an application which has become entirely academic.
In this connec-tion, we find nothing in Section 189 of the Act or Section 2.104 of the Rules of Practice which might support such a curious result.
To be sure, those Sections may preclude the orant of a construction permit application without some hearing of the " health, safety and environmental issues" which either must be routinely considered as a matter of law or have been properly raised by a party to the proceeding. But their terms are devoid of anything which immedi-ately suggests to us an intended limitation upon the inherent authority of adjudicatory tribunals to dismiss those matters placed before them which have been mooted by supervening develop-ments.2/
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At first impression, Section 2.749(d) of the Rules of Practice.
10 C.F.R. 2.749(d), would not appear to bar the dismissal of a moot proceeding. Rather, the only limitation on a licensing board's summary cisposition authority is that it "may not be used to detemine the ultimate issue as to whether the permit shall be issued." A dismissal for mootness -- not involving a consideration of the merits of the application -- would not seem to be within the intended purview of that limitation.
On August 11, 1980, the Appeal Board issued ALAB-605,12 MC
, adhering to the tentative conclusions just quoted and remanded the matter to the Licensing Board. Upon remand the Licensing Board set a hearing upon whether the application should be dismissed because of Applicant's abandonment of intent to construct the facility.EI Thereafter, Applicant sought to withdraw its application and terminate these proceedings.
Intervenors then filed the instant " Motion for Direct Certification to Request Application Be Dismissed with Prejudice."E H/ Memorandum and Order, August 11, 1980.
M / See p. 1, supra.
, III.
DISCUSSION A.
The Instant Motion For Directed Certification By The C~eission 15 Premature.
Ordinarily, a Licensing Board acts first on motions, subject to Appeal Board review.E/ Review by the Commission is ordinarily only after action by both a Licensing Board and an Appeal Board upon a grant of a petition for review or on the Commission's own motion. Although the Commission may have an issue brought to it for consideration before a Licensing Board has acted, it would not be appropriate for the Commission to consider the issue the Inter-venors wish to have considered, of whether the application should be dis-missed with or without prejudice, before the usual procedures below have beenfollowed.El The Commission has stated that issues concerning matters of withdrawal of an application are matters ordinarily ruled upon by the presiding Atomic Safety and Licensing Board.EI There is no cause to have the Commission consider this question before the Licensing Board has even acted.
4 14/ 10 C.F.R. th 2.785, 2.786; Pennsylvania Power & Licht Co. (Susquehanna Steam Electric Station, Units 1 & 2), CLI-80-17,11 NRC 678 (1980), on remand ALAB-591, 11 NRC 761 (1980); Public Service Co. of New Hamoshire (Seabrook Station, Units 1 & 2), ALAB-271, 1 NRC 478, 482 (1975).
Interlocutory appeals are generally prohibited.
10 C.F.R. 9 2.730(f).
M / Pennsylvania Power & Licht Co., supra; Public Service Co. of New Hamoshire, supra.
-16/ Consumers Power Co. (Quanicassee Plant, Units 1 and 2), CLI-74-37, 8 AEC 627 n. 1 (1974).
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- _ The Appeal Board in exercising the Commission's certification authority pursuant to sections 2.718(i) and 2.78d I has indicated that it will not use such authority until the Licensing Board has been afforded an oppor-tunity to decie the question sought to be certified.E/ An exception to this rule, noted by the Appeal Board, would be made "only in the most compelling circumstances (such as the presence of an emergency sitartion giving rise to a manifest need for an almost immediate final detemination of the question)."E Where Applicant seeks to withdraw an application, and the only question is whether temination of the proceeding should be with or without prejudice, a finding of compelling circumstances to interrupt the nomal course of proceedings cannot be made.
B.
A Denial Of Certification Will Neither Cause Serious irreparable Ham Nor Disrupt The Proceedina.
In Public Service Co. of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-405, 5 NRC 1190, 1192 (1977), the Appeal Board E/ 10 C.F.R. 62.785(b) also clothes the Appeal Board with the Commission's authority to direct, pursuant to 2.718(i), certification of questions from the Licensing Board. Public Service Co. cf New Hamoshire, suora.
18/ Toledo Edison Co. (Davis Besse Nuclear Power Station, Units 1 & 2), ALAB-300, 2 NRC 727, 729 (1975). Citing Seabrook, ALAB-271, supra, the Appeal Board stated "'if at all, the need to reach down for an issue is more likely to surface af ter, and not before the Licensing Board has itself spoken on the issue.'"
g/ Toledo Edison Co., suora; Public Service Electric & Gas Co. (Salem Nuclear Generating Station, Unit 1), ALAB-588, 11 NRC 533, 536 (1980); Puerto Rico Water Resources Authority (North Coast Nuclear Plant, Unit 1), ALAB-361, 4 NRC 625 (1976).
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held that a party requesting certification pursuant to 10 C.F.R. 9 2.718(i)E 1
must demonstrate that the ruling below either "(1) threatened the party adversely affected by it with immediate and serious irreparable irrpact which, as a practical matter, could not be alleviated by a later appeal or (2) affected the basic structure of the proceeding in a pervasive or unusual 4
manner."E The Intervenors have not made such a demonstration. The sole ba tis for their request for certification is that having the Licensing Board rule first "would be too slow a process in this crucial stage of the proceed-ings."E However, this is not a valid reason for direct certification. A ruling below on whether the dismissal should be with or without prejudice could not ssriously or irreparably affect the Intervenors in a way that could not be alleviated by a later appeal, There is no reason for extraordinary relief and certification before the Board is given an opportunity to act.E C.
Intervenors Have Not Demonstrated That The Application Dismissal Should Be "Wi th Prejuoi c,e,"
The Commission's regulation concerning withdrawal of applications is set forth in 10 C.F.R. 9 2.107(a) which provides:
20/ Section 2.785(d) sets forth the standard for certification of questions from the Appeal Board to the Commission, limiting them to " major or novel questions of policy, law or procedure." Such questions, as shown in succeeding sections of this brief, are not involved here.
21/ See also Pennsylvania Power & Licht Co. (Susquehanna Steam Electric Station, Unit 1 & 2), ALAB-593, suora at 762; Public Service Electric
& Gas Co., suora; Pucet Sound Power and Licht Co. (Skagit Nuclear Power Project, Units 1 & 2), ALAB-572,10 MC 693, 695, n. 5 (1979).
g Addendum to Motien for Direct Certification (September 18, 1980), f 8.
23f Public Service Co. of Indiana, suora, at 1192.
-g-(a) The Commission may pemit an applicant to withdraw an appli-cation prior to the issuance of a notice of hearing on such tems and conditions as it may prescribe, 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 of ficer may prescribe.
Although broad discretion is delegated to the presiding officer, no c"iteria are provided in the regulation to determine whether any " terms" are appro-priate or, if "tems" are appropriate what the "tems" should be. Under applicable case law, withdrawal of an application without prejudice after J
issuance of a notice of hearing is the proper course unless it is shown that prejudice will result to the public interest or substantial prejudice will result to the Intervenors, other tnan the possibility of another application being filed.
In Jones v. Securities and Exchance Commission, 298 U.S. 1, 19, 80 L.Ed.
1015, 1023 (1936), the Supreme Court, reversed an S.E.C. refusal to allow withdrawal of an application to register securities, stating:
The general rule is settled for the federal tribunals that a plaintiff possesses the unqualified right to dismiss his complaint at law or his bill in equity unless some plain legal prejudice will result to the defendant other than the mere prospect of a second litigation upon the subject matter.
The application was sought to be withdrawn to avoid an S.E.C. investigation into its truthfulness.
Pertinent S.E.C. regulation provided that upon a request for withdrawal, "... consent shall be given by the Commission with due regard to the public interest and the protection of investors." The i
Supreme Court in Jones applied the usual civil rule of allowing withdrawal of causes of action, to the withdrawal of applications before administrative agencies without condition unless prejudice to the public interest is shown.b Similarly, in the present proceeding the Applicant should be allowed to withdraw its application without condition unless it can be shown that prejudice will result to the public interest or that substantial prejudice, "other than the mere prospect of a second litigation upon the subject matter,"
will result to the intervenors. See Boston Ediso'n Co. (Pilgrim Nuclear Generating Station), LBP-74-76, 8 AEC 324, 327 (1974). E The Intervenors have not alleged any effect on the public interest in either their Motion or B In Cone v. West Virainia Pulp & Paper Co., 330 U.S. 212, 217 (1974),
the Court speaking of a plaintiff's unqualified right to dismiss an action even after trial, stated:
There are other practical reasons why a litigant should not have his right to a new trial foreclosed without having had the benefit of the trial court's judgment on the question.
Take the case where a trial court is about to direct a verdict because of failure of proof in a certain aspect of the case. At that time a litigant might know or have reason to believe that he could fill the crucial gap in the evidence.
Traditionally, a plaintiff in such a dilemma has had an unqualified right, upon payments of costs, to take a nonsuit in order to file a new action af ter further preparation, unless the defendant would suffer some plain legal prejudice other than the mere prospect of a second lawsuit. Pleasants v. Fant, 22 Wall. 116,122 ; Jones v. S.E.C., 298 U.S. 1, 19-20 and cases cited....
Indeed it has been held an abuse of discretion to require that the voluntary dismissal of a suit be with prejudice, when the defendant's only harm "would be the mere prospect of a second lawsuit." Durham v.
Florida East Coast R., 385 F.2d 366, 368 (5th Cir.1967), citing 2 Barron and Holtzof f, Federal Practice and Procedure, 5 912 (Wright's ed).
25/ Cf. Potomac Electric Co. (Douglas Point Nuclear Generating Station, Units 1 & 2), ALAB-277, 1 NRC 539, 551-552 (1975).
. the Addendum and the Staff perceives no detrimental impact on the public interest should the application be withdrawn without prejudice.
As pointed out in Boston Edison Co., supra, the withdrawal of an application for lack of need cannot be with prejudice, as a plant withdrawn now for lack of need might be needed in the future. Or a plant now technically infeasible might become feasible in the future. As the Board aptly stated:
Moreover, it seems to the Board that it would be infeasible for this Board even to attempt to impose a condition on a public utility that it be prohibited from filing an application for the construction of a power plant before a certain date, such as is apparently requested by the Wildlife Federation and now the Common-wealth of Massachusetts.
It must be presumed that it is the public's need for power which is one of the underlying reasons for construction of a power plant. This statutory principle - "public convenience and necessity" -- is the basis which underlies the authorization granted by other concerned federal and state regula-tory agencies before any construction can be commenced by the utility and requires a finding of public need.
If such finding is made, based upon a proper showing by the utility, it would be unreasonable in the extreme to deprive the public of a needed utility service because of alleged "inconveniece or burden" to potential intervenors.
(See Jones v. Securities and Exchance Commission, 298 U.S. 1 '1936), cited and discussed in the Staff's pleacing at pages 2-4.)
The only bases asserted by the Intervenors for requiring dismissal of the application with prejudice is one which the Supreme Court consiste.'tly indicated is insufficient to require such a result - " mere prospect of a second litigation upon the subject matter.'E Thus there exists no valid g/ See Jones v. Securities and Exchance Commission, suora; Cone v. West Vircinia pulp & Pacer Co., suora.
4 1,
basis to condition a voluntary dismissal upon that dismissal being with prejudice.b O.
The Intervenors Have Failed To Demonstrate Any Justification For Their Recuest That The Commission Direct The Licensino Board To Complete The Evidentiary Hearing Concernino Applicant's Intent to Complete Construction The Intervenors requested as relief alternative to their request for directed certification, that the Commission direct the Licensing Board to complete the hearings ordered by that Board in its order dated August 19,1980.El The reason given for this request is that completion of such hearings will
" enable the Licensing Board to know the full facts why the dismissal cannot be less than with orejudice."b!
27/ It is noted that even had this matter resulted in a decision adverse to applicant on the merits after the hearing there would be no bar to a
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reapplication should conditions that led to a denial of its license have changed.
Prior administrative deteminations are not controlling upon further applications where facts or law might have changed.
See Federal Communications Commission v. Pottsville Broadcasting Co, 309 U.S. 134, 145 (1940); Federal Trace Commission v. Roladom Co., 3f6 U.S.149,150-151 (1942); Connecticut Liont & Power Co. v. Feoeral Power C41 mission, 557 F.2d 349, 353 (2d Cir.1977); Davis, Administrative Law Treat,se, 6 18.04 (1958);
see also Alabama Power Co. (Joseph M. Farley Nuclear Power Plant, Units 1 &
2), 7 AEC 210, 213-215 (1974); Houston Lightino & Power Co. (South Texas Project, Units 1 & 2), CLI-77-13, 5 NRC 1303,1317-19,1322 (1977).
Where the applicant wishes to voluntarily withdraw its application, it could not be put in a wors'e position than had it gone to hearing and the matter be determined against it.
See Federal Trade Commission v. Adver-tising Service Co., 344 U.S. 392, 398 (1965); National Labor Relations Boara v. Denver Buildino Council, 341 U.S. 675, 681-682 (1951); Davis, Administrative Law Treastise, 6 18.06. Further, where Applicant wishes to terminate the proceeding, and no findings are made, a dismissal is not dispositive in a subsequent proceeding. See Lawlor v. National Screen Service Co., 349 U.S. 322, 326 (1955); Wilwording v. Swenson, 502 F.2d 844, 848 (8th Cir.1974).
E / Motion, at 2.
M/ Motion, at 2.
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l As discussed, above, the Staff believes that the standard to be applied by I
the presiding officer in making a detemination of withdrawal of an applica-l tion with or without prejudice is whether withdrawal of the application l
l without prejudice will (1) injure the public interest or (2) result in l
substantial prejudice to the intervenors (other than the mere prospect of further litigation).
The hearing ordered by the Licensing Board is not to address these matters
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but instead to determine the issue of whether the Applicant has abandoned any intention to build the North Coast Nuclear Plant, Unit 1.E Furthemore, the Staff believes that this issue is now moot since the Applicant has made clear by its September 11, 1980 filings of temination of the proceeding and withdrawal of the application it no '6 Jer intends to build the facility.
(
l Accordingly, the Staff submits that Intervenors' request is without any l
justification, and the Licensing Board should be allowed to rule on the motion to teminate the proceeding without any futher hearings.
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IV.
f CONCLUSION l
For these reasons the Intervenors' motion requesting directed certification by the Commission of the question of whether withdrawal of the instant 33/ Jones v. Securities and Exchange Commission, suora.
31] See p. 7, supra.
,! application be with or without prejudice, or in the alternative an order be issued directing the Licensing Board to conduct hearings concerning the Applicants' intent to pursue the application should be denied.
Respectfully submitted, f
/
t A_
er
...cGu ren Cou for NRC Staff Dated at Bethesda, Maryland this 8th day of October,1980
j UNITED STATES OF AMERICA NUCLEAR REGULt. TORY COMMISSION BEFORE THE COMMISSION In the Matter of
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PUERTO RICO ELECTRIC POWER
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Docket No. 50-376 AUTHORITY
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(North Coast Nuclear Plant, Unit 1)
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CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO INTERVENORS' MOTION FOR DIRECTED CERTIFICATION" 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 Commission's internal mail system, this 8th day of October,1980:
Alan S. Rosenthal, Esq., Chairman
- Mr. Gustave A. Linenberger*
Atomic Safety and Licensing Appeal Atomic Safety and Licensing Board Board U.S. Nuclear Regulatory Commission U.S. Nuclear Re6ulatory Commission Washington, DC 20555 Washington, DC 20555 Maurice Axelrad, Esq.
Dr. John H. Buck, Member
- Lowenstein, Newman, Reis, Axelrad Atomic Safety and Licensing Appeal
& Toll Board 1025 Connecticut Avenue, N.W.
U.S. Nuclear Regulatory Commission Washington, DC 20036 Washington, DC 20555 Esq. Jose F. Irizarry Gonzalez General Counsel Puerto Rico Electric Power Authority G.P.O. Box 4267 San Juan, PR 00936 Alberto Bruno Vega, Assistant Sheldon J. Wolfe, Esq., Chairman
- Executive Director, Planning Atomic Safety and Licensing Board and Engineering U.S. Nuclear Regulatory Commission Puerto Rico Electric Power Authority Washingtcr., DC 20555 G.P.O. Box 4267 4
San Juan, PR 00936 Dr. Richard F. Cole
- Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, DC 20555
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Mr. Gonzalo Fernos, Chairman Eng. Francisco Jimenez Citizens for the Conservation of Box 1317 Natural Resources, Inc.
Mayaguez, PR 00708 503 Barbe Street Santurce, PR 00912 Atomic Safety and Licensing Board Panel
- Esq. German A. Gonzalez U.S. Nuclear Regulatory Comission Attorney for Mision Washington, DC 20555 Industrial, Inc.
Mision Industrial De Puerto Rico Atomic Safety and Licensing Appeal i
G.P.O. Box 20434 Panal (5)*
Rio Piedras, PR 00925 U.S. Nuclear Regulatory Cormtission Washington, DC 20555 Mr. Mario Rsche Velazquez Executive Director, Docketing and Service Section (7)'
i Mision Industrial, Inc.
Office of the Secretary l
Mision Industrial De Puerto Rico U.S. Nuclear Regulatory Comission G.P.O. Box 20434 Washington ~, DC 20555 Rio Piedras, PR 00925 Dr. Tomas Morales-Cardona Department of Pharmacology
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School of Medicine
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University of Puerto Rico 7peyt
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GP0 Box 5067 Henri J. McGurren San Juan, Puerto Rico 00936 Couns61 for NRC Staff Samuel J. Chilk*
Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C.
20555 l
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