ML19352B337

Response Opposing G Fernos & Citizens for Conservation of Natural Resources,Inc 810613 Motion to File Sworn Statements.Intervenors Failed to Justify Reopening of Record

ML19352B337
Person / Time
Site:	05000376
Issue date:	06/29/1981
From:	Shea K LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL, PUERTO RICO ELECTRIC POWER AUTHORITY
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
NUDOCS 8107020273
Download: ML19352B337 (7)

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UNITY,D STATES OF AMERICA

. ,_NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of ) Docket No. 50- 7 6

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) # g PUERTO RICO ELECTRIC POWER ) s \

AUTHORITY ) /3 C ~. . '

North Coast Nuclear Plant, June 29, 1981 y)M 3 0 M' ,

(Unit 1) ) ,o_4

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Authority's Response in Opposition to Intervenors' '

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" Motion to File Sworn Statemerits' On June 13, 1981, Gonzalo Fernos and Citizen:; for tha Conservation of Natural Resources, Inc. (Interveners) filed a

" Motion to File Sworn Statements from Owner-Residents of the Islote Nuclear Plant about Damages Inflicted upon Them by Ap-plicant" (Motion). The Puerto Rico Electric Power Authority (Authority) hereby files its response in opposition to the Motion, t

Intervenors see'., in effect, to reopen the record upon l

l which the decision by the Licensing Board permitting withdrawal l

without pr: judice of the subject application was reached. "As is well settled, the proponent of a motion to reopen the record has a heavy burden." (Kansas Gas and Electric Co. et al. (Wolf Creek Generating Station), AIIB-462, 7 NRC 320, 338 (1978),

citing Duke Power Co. (Catawba Nuclear Station), ALAB-359, 4 -

NRC 619, 620 (1976).) Intervenors fail to discharge that " heavy burden." o3 3 s -

oft 8107 02 0 27J C, _

The usual stiandard for evaluating such a request is well defined: the request must be timely and addressed to a signifi-cant safety or environmental issue. (Kansas Gas and Electric Co., supra; Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-138, 6 AEC 520, 523 (1973);

Georgia Power Co. (Alvin W. Vogtle Nuclear Plant) , ALAB-291, ,

" it must be established th ;

2 NRC 404, 409 (1975).) Finally,

'a different result would have been zeached initially had [the material submitted in support of the motion) been considered.'"

} (Kansas Gas and Electric Co., supra, quoting Northern Indiana i Public Service Co. (B' Llly Generating Station, Nuclear-1) ,

ALAB-227, 8 AEC 416, 418 (1974).)

Intervanors seek to present eight sworn statements by per-sons who own land and/or reside in the vicinity of the site which was proposed by the Authority for the North Coast Nuclear Plant. They are offered "as evidence of the sort of damage to public interest which would be caused and would remain latent if Applicant's application dismissal without prejudice were to be sustained in appeal." (Motion, p. 1.) -

i We assume for present purposes that the question of whether the application is dismissed with or without prejudice is "sig-nificant" and turn to the nature of the evidence sought to be introduced. We submit that the statements now offered clearly -

wotild not have prompted the Licensing Board to order dismissal with prejudice.

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4 3-The sworn statements / may be categorized as follows:

A. My' land was expropriated. I did not agree with the expropriation or the appraisal and I did not accept the money awarded by the court. I understand that the Authority may still build a nuclear plant at the site. (Daniel Reyes Olmo, Mariano Rojas Natal)

B. Incorporaces A above and adds: I have lived on the land for a long time. Another expropriation "would jeopardize me and would compel me to abandon the community . . . .

(Jesus Reyes Olmo, Luis Roman Rojas, Illuminado Rios Reyes, Jose Antonia Rios Rojas)

C. My sister died in 1974. Her death "was caused by the

way in which the Water Resources Authority (WRA) acted when expropriating the property in which she lived."

(Mariano Rojas Natal)

D. As a result of actions of the Authority "I suffered substantial damages." I.e., I lost some cassava crop because equipment passed over the planted field; I had to stop building a house; I had to pay penalty and in-terest on property taxes I paid late because I had been i

told the land would be expropriated. (Almaranto Rojas Robles)

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The Authority, of course, does not concede th., validity or '

accuracy of any of the allegations made in the statements.

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In substantial'part, the factual allegations in these statements are irrelevant to consideration of whether to dis-miss with or without prejudice. As the Licensing Board recog-nized in making its determination, there are two factors to be considered:

Will intervenors suffer some prejudice "other than T.te mere prospect of a second lawsuit" if the application is withdrawn without prejudice?

Will "the public interest" be preju-diced if the application is withdrawn without prejudice?

(Memorandum and Order, pp. 4-6 (February 18, 1981).) The sworn statements contain nothing which would lead one to answer either question affirmatively. Viewed most favorably to Intervenors, only the Category B statements are useful and they complain of the " mere prospect of a second lawsuit." This is not sufficient to warrant dismissal with prejudice. (Jones v. SEC, 298 U.S. 1, 19 (1936); see Boston Edison Co. (Pilgrim Nuclear Generating Station, Units 2 and 3), LBP-74-62, 8 AEC 324, 327 (1974), and cases cited by the Licensing Board in this proceeding, LeCompte i

v. Mr. Chip, Inc., 528 F.2d 601 (5th Cir.19's 6) ; Holiday Queen

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l Land Corp. v. Baker, 489 F. 2d 1031, 1032 (5th Cir. 1974), re-lying on Durham v. Florida East Coast Ry. Co., 385 F.2d 366 l

(Eth Cir. 1967).) The remainder of the allegations are insub-stantial and/or irrelevant. Nothing in any ctatement casts doubt on the Board's conclusion "that the public i.,terest would l

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best be served by le'aving open to the Applicant the nuclear J l

option should changed circumstances warrant." (Memorandum i and Order, p. 6 (February 18, 1981).) .

Finally, the request for admission of the statements is not timely and Intervenors now seek to raise a matter which Faviously should have been presented to the Licensing Board. /

The question of whether the Authority's application for a con-i

! struction permit is to be withdrawn (or dismissed) with or with-out prejudice first became an issue more than one year ago when Intervenors requested an " order dismissing the . . . application with prejudice . . . ." (Petition Requesting Evidentiary Hear-ings to Request Applicant to Show Cause Why Their Application Should Not Be Dismiused for Lack of Intention to Build, p. 4 (April 30, 1980).) Their request was renewed promptly after the Authority, on September 11, 1980, sought to withdraw its appli-l cation and requested termination of this proceeding.

. . . Intervenors respectfully pray the Honorable Commission for a direct certi-fication . . . ordering either the dis-missal of the application with prejudice or else that the proceedings not be ter-minated until after evidentiary hearings are conducted to enable the Licensing Board to know the full facts why the dis-missal cannot be less than with prejudice.

• / The Appeal board " ordinarily will not entertain an issue

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raised for the first time on appeal." (Tennessee Valley t

Authority (Hartsville Nuclear Plant), ALAS-463, 7 NRC 341, 348 (1978).)

. 1 (Motion fer Direct Certification to Request Application Be Dismissed with Prejudice, p. 2 (September 18, 1980).) /

Intervanors have thus long argued that the Licensing  !

Board should dismiss the Authority's application "with preju-  ;

dice." Their views were rejected by the Board. Only now do Intervenors seek to introduce evidence in the forn of statements

• / We note also that Intervenors have repeatedly endeavored to find a theory and facts upon which to base their pleas for dismissal with prejudice. They began by alleging that dismissal without prejudice would be " extremely unfair" to them. (Addendum to Motion for Direct Certification,

p. 1 (September 13, 1980).) Later they alleged that dis-missal with prejudice is warranted because of " hidden, deceitful action committed by the Applicant" in failing to advise the Licensing Board and parties of its decision not to pursue expropriation proceedings. (Intervenors' Reply to Applicant's and NRC Staff's Contentions that North Coast Nuclear Plant's Withdrawn Applications Should Not Be Dismissed with Prejudice, p. 5 (December 3, 1980).)

This theory was rejected by the Licensing Board (Memorandum and Order of February 18, 1981) but pursued by Intervenors in a Petition for Reconsideration (March 3,1981) which was denied (Order of March 26, 1981.) Intervenors then turned to the Appeal Board and alleged for the first time chat residents and land owners of the site area might be concerned tbout dismissal without prejudice. Intervenors requested time to " investigate the situation among those landowners." (Application for a Temporary Stay, p. 3

. (April 6, 1981).) The reason next cited for dismissal with prejudice was an investigation into alleged corruption in l the Authority by the Department or Justice of Puerto Rico.

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(Intervenors' Response to Applicant's Motion of April 17, 1981, p. 3 (April 25, 1981).) That argument has twice i been rejected by the Appeal Board (Order of June 1,1981, l and Memorandum and Order of June 11, 1981). Intervenors new seek to have sworn statements admitted.

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from owner / resident's. The request is therefore not timely and should be denied for that reason alone.

Intervenors have failed to justify reopening of the record.

Their Motion to File Sworn Statements should be denied.

Respectfully submitted, o t@JA Kathleen u. Shea LOWENSTEIN, NEWMAN, REIS

& AXELRAD 1025 Connecticut Avenue, N.W.

Washington, D.C. 20036 (202) 862-8400 I

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