ML19351G377
| ML19351G377 | |
| Person / Time | |
|---|---|
| Site: | 05000376 |
| Issue date: | 02/18/1981 |
| From: | Cole R, Linenberger G, Wolfe S Atomic Safety and Licensing Board Panel |
| To: | PUERTO RICO ELECTRIC POWER AUTHORITY |
| References | |
| ISSUANCES-CP, NUDOCS 8102230602 | |
| Download: ML19351G377 (6) | |
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In the Matter of
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Docket No.20-376 CP PUERTO RICO ELECTRIC POWER AUTHORITY
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lorth Coast Nuclear Plant, Unit 1)
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February 18, 1981
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MEMORANDUM AND ORDER (Granting Applicant's Motion For Termination Of Proceeding, And Granting Without Prejudice The Withdrawal Of Apolication)
On September 11, 1980, Applicant (the Authority) filed a Mo' tion For Termination Of Proceeding in light of the fact that en the same date it had filed a Withdrawal Of Application.
On September 19, 1980, the NRC Staff filed an Answer which stated it did not oppose Applicant's motion.
On September 18, 1980, Intervenors filed with the Commission a Motion For Direct Certification To Request Application Be Dismissed With Prejudice And Addendum, which the Applicant and Staff opposed in Responses respec-tively filed on October 3 and October 8,1980.
In an Order dated October 17, 1980, the Connission declined to grant directed certification and transferred Intervenors' Motion to this Board for decision.
We understood that we had been directed by the Comission to detemine whether, in granting Applicant's Withdrawal of Application, we should dismiss the application with prejudice. Thus, on November 19, 1980, we ordered that Inter-venors, if they so desired, could file a submission by December 4,1980 responding solely to Applicant's and Staff's argument that the North Coast 8102230lsOA y#
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construction application be dismissed without prejudice.
In that Inter-venors' Rep'y of December 3, 1980, advanced a new argument, the Board ordered that Applicant and Staff could respond thereto by December 31, 1980. Applicant filed its Reply and the Staff filed its Memorandum on December 31, 1980.
MEMORANDUM In light of tne fact that Applicant had simultaneously filed a Withdrawal of Application, its Motion for Termination of Proceeding requested that the Board teminate this proceeding. Apparen?ly, the Authority believed that it had an absolute right to have its Withdrawal of Application granted without prejudice, since it did not show good cause for the withdrawal of its application. However, 1 2.107 of the Commission's Rules of Practice, which is simila to Federal Rule of Civil Procedure 41(a)(2), provides that the withdrawal of an application 1/.
after the issuance of a notice of hearing shall be on such terms as the presiding officer may prescribe. Since this Board, after reviewing the circumstances, in its discretion could impose tems in its Order granting the withdrawal of the application, obviously Applicant does not have such an absolute right. Thus, we must determine from the record before us I
whether we should grant the withdrawal of application without prejudice, or grant it with prejudice, which is the only term or condition the Intervenors seek to have imposed.
1/ The Notice of Hearing was published on February 14, 1975 (40 Fed.' Reg.
6835).
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- In their Motion For Direct Certification and Addendum of September 18, 1980, in substance, the Intervenors urged that, since the
. Applicant had clearly abandoned any intention of constructing the nuclear
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plant, the application for a construction permit should be dismissed with
, prejudice lest at a future date the Applicant might pursue the construc-tion permit which would result in further expensive and time-consuming litigation.
In their Reply of December 3,1980, opposing the Applicant's and the Staff's responses, the Intervenors argued that a dismissal of the application for a construction permit without prejudice would be prejudicial to the public interest in leaving the door open for further wrongful actions and subsequent litigation.
Intervenors alleged that in the past the Authority
} had engaged in wrongful actions in " deceiving the Board, the Staff and i
Intervenors alike by not coming out straightforwardly when deciding not
, to build the nuclear plant, by secretly reversing the expropriations of
' the land already acouired to site the nuclear plant, [and] by hiding such actions and information from all other parties while continuing to pursue the Application for over four years".
(p.4)
Intervenors concentrate upon one such alleged wrongful action, viz, that at no time did the Applicant reveal to the Board and to the parties tnat,' on August 5,1976, it had begun filing Motions of Desistance l
requesting that the Court of Expropriation of the Superior Court of Puerto dico authorize the withdrawal of its suits for expropriation of lands for l
l the proposed site which had been initiated on May 23, 1975 and authorize the recovery of the funds set aside for the original owners of these l
l properties (pp. 4-5),
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e-Two factors have been considered by the Board.
First, we have con-sidered whether the Intervenors will suffer some prejudice other than the mere prospect of a second lawsuit if we were to permit the withdrawal of the application without prejudice. See Le comote v. Mr. Chio, Inc., 528 F2d 601 (5th Cir.1976); Holiday Queen Land coro. v.
Sakat, 489 F2d 1031, 1032 (5th Cir.1974), quoting Durham v. Florida East Coast Ry. Co., 335 F2d 366 (5th Cir.1967); 5 Moore's Federal Practice,141.05 at 41-72 (2d ed.1980). Neither in their Motion for Direct Certification and Addendum of September.18,1980 nor in their Reply of December 3, 1980 do the Intervenors assert that they will suffer any legal harm other than leaving the door open for subsequent litigation. We weigh this factor in favor of granting the withdrawal of the application without prejudice.
Second, we have co,nsidered whether the public interest would be.
prejudiced should we allow the withdrawal of the application without prejudice.
In its Reply of December 31, 1980, the Authority denied that it had engaged in any deceitful, wrongful actions and cited various sub-missions wherein it had made known to the Board, Staff and Intervenors 21 its intentions with regard to the instant proposed facility and had pro-vided information required for the Staff's review of the environmental and safety aspects of the site.
In light of this record, Intervenors 2/ See pages 2-4 of Applicant's Reply of December 31,-1980.
For example, as early as December 3,1975, Applicant advised the Board and the parties that it had decided to postpone indefinitely the nuclear plant project because energy demand had been lessened and because of worldwide inflation.
While advising that it was discontinuing all design and fabrication ef-forts and that it would explore the possibility of selling the plant to
1 could not and do not pursue their barren allegation except to the extent, as indicated above, that they concentrate upon Applicant's alleged failure to notify all concerned that it had initiated reverse expropriation pro-cedures.
However, as Applicant points out, its actions were not hidden and no one was misled because a San Juan newspaper article of June 30, 1976 had publicly announced the Authority's intention to desist from expropriation (Attch. C to Reply of December 31,1980), and indeed Intervenors attached a copy of one of the motions to desist to their Petition of April 30, 1980 (Exhibit A). Moreover, the Authority asserts, and we agree, that its determination to cease expropriation proceedings in 1976 without formal notification to the NRC had no significance from the standpoint of NRC regulatory review because (1) it retained its statutory right of eminent domain which it could have exercised if it had decided to go forward with the project, (2) as was held in New Encland Power Ccmoany (NEP, Units 1 and 2), LBP-78-9, 7 NRC 271 (1978), an appli-cant's ownership of the land at a proposed site is not a condition precedent Footnote 2 (Continued):
another utility, the Authority stated its conviction that nuclear power was the only commercially viable alternative for power generation and indicated that it wished to discuss procedures leading to a determination upon site suitability. Again, for example, after the issuance of the Board's Order of May 1,1978, which directed that Applicant submit status ~ reports at pre-scribed intervals, on December 29, 1978, Applicant advised that it had tenninated the contract with the nuclear steam supply system contractor but that it had not abandoned the nuclear option; that it would continue the generation expansion study considering nuclear power as a commercially avail-able alternative; and that the Staff should complete and issue its site safety review.
Finally, on December 29, 1979, the Authority advised that the next addition to its generating system would be a 300 megawatt coal-burning unit to meet its immediate needs, and thus, that consideration of nuclear capacity would be deferred for at least one year, and, in all likelihood, for a couple of years.
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to the commencement of construction permit proceedings, (3) 10 C.F.R. 55 2.101(a-1) and 2.600 to 2.606 do not require that an Applicant must own a proposed site before an early review of site suitability issues can proceed, and because (4) in a letter to the NRC dated October 26, 1976, commenting upon the Draft Environmental Statement, it had stated that it did not own the site, and, as a result of its suggestion, page 1-1 of the Final Environmental Statement was amended to read that "The proposed facilities will be located on the Applicant's proposed 520-acre Islote site...".
Finally, we conclude that the public interest would best be served oy leaving open to the Applicant the nuclear option should changed conditions warrant.
ORDER For all the foregoing reasona and based upon a consideration of-the entire record in this matter, it is, this 18th day of February,1981 ORDERED That Applicant's Motion For Termination Of Proceedings is granted and its Withdrawal Of Application is granted without prejudice.
THE ATOMIC SAFETY AND l
LICENSING BOARD Richard F. ColeO Administrative Judge
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ve A. Linenberge</, Jr., Acministrative Aos
' LooW SheldonJ.Golfe,AdhlinistrativeJudge w
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