ML20005A276
| ML20005A276 | |
| Person / Time | |
|---|---|
| Site: | 05000376 |
| Issue date: | 06/26/1981 |
| From: | Mcgurren H NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8106300148 | |
| Download: ML20005A276 (10) | |
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. UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter ofi 1X
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Docket No. 50-376 AUTHORITY,
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NRC STAFF RESPONSE TO INTERVENORS' MOTION DATED JUNE 13, 1981 w
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to Henry J. McGurren sp Counsel for NRC Staff l
June 26,1981 l
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
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PUERTO RICO ELECTRIC POWER Docket No. 50-376 AUTHORITY
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(iiorth Coast Nuclear Plant, Unit 1) 9 NRC STAFF RESPONSE TO INTERVENORS' MOTION DATED JUNE 13, 1981 1.
INTRODUCTION On September 11, 1980, the Applicant filed a document entitled
" Motion for Termination of Proceeding" accompanied by a document entitled
" Withdrawal of Application." In response to the Applicant's motion, Intervenors Gonzalo Fernos and Citizens for the Conservation of National Resources, Inc. (hereinafter referred to as the Intervenors) filed with the Commission on September 18, 1980, a docuuent entitled " Motion for Direct Certification to Request Application Be Dismsssed with Prejudice" and on the same date filed with the Licensing Board a document entitled
" Motion for a Stay of Proceedings." In their motion to the Commission, the Intervenors sought either a direct ruling from the Commission dismissing the application with prejudice, or, in the alternative, an evidentiary hearing to determine the Applicant's intent to construct the r
-2 plant, "to enable the Licensing Board to know the full facts why the dismissal cannot be less than with prejudice."1/
By an order dated October 17, 1980, the Commission declined to grant directed certification on the issues presented and transferred the Intervenors' motion to the Licensing Board to determine whether the application for a construction permit should be permitted to be withdrawn without prejudice.
By an order dated December 16, 1980, the Licensing Board, after reviewing a reply brief filed by the Intervenors on December 3, 1980,2_/
granted the Staff and the Applicant until December 31, 1980, to respond to a "new" argument raised by the Intervenors.
In,their reply brief, the Intervenors essentially argued that it would be in the public interest to dismiss the application with prejudice.
However, as noted by the Staff in its December 31, 1980 filing,3_/ the issues the Intervenors requested the Board to confront dealt with such matters as alleged Applicant mis-representations to the Commission concerning the intent to build the North Coast facility, the suitability of the site, and possible
-1/
"Intervenors' Motion for Direct Certification to Request Application Be Dismissed with Prejudice," p. 2 (September 18, 1980) (emphasis in original).
2/
"Intervenors' Reply to Applicant's and NRC Staff's Contention that North Coast Nuclear Plant's Withdrawn Application Should Not Be Dismissed with Prejudice," (December 3,1980).
-'3/
"NRC Staff Memocandum in Response to Atomic Safety and Licensing Board Order of December 16, 1980," p. 8 (December 31,1980).
sabotageandlaborunrest.M By Memorandum and Order of February 18, 1981 the Licensing Board granted without prejudice the Applicant's Motion for Withdrawal of Application concluding that the public interest would best be served by leaving open to the Applicant the nuclear option should changed conditions warrant (Order at 6).
The Intervenors filed a Notice of Appeal on May 12,1981.E On June 13, 1981, in connection with their appeal, the Intervenors filed a document entitled " Motion to File Sworn Statements from Owner-Residents of the Islote Nuclear Plant About Damages Inflicted Upon Them by Applicant"(Motion).
In their motion, Intervenors rsquest this Board to
" accept" and consider eight sworn statements "as evidence of the sort of damage to public interest which would be caused and would remain latent if Applicant's application dismissed without prejudice were to be sustainedin[ sic]' appeal."O The Staff opposes this request.
II. DISCUSSION The Staff opposes the Intervenors' request for two reasons:
(1) the Intervenors by their Motion attempt to have this Board consider an issue raised for the first time on appeal and (2) the.Intervenors havn not met the burden established by the Appeal, Board for the receipt of such evidence.
4/
Id.
5/
" Notice of Appeal and Request for an Extension of Time to File Brief Thereof" (May 12,1981).
6/
Motion, at 1.
It is a well established rule that the Appeal Board will not entertain an issue raised for the first time on appeal. As this Board noted in Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-244, 8 AEC 857, 864 (1974):M Failing either to raise satisfactorily a particular factual issue or (once the record has been closed) to express himself in the prescribed manner regarding how that issue should be resolved, he is scarcely in a position, legally or equitably, to protest the determinations made by the Board in connection with it.
The factual issue that the Intervenors now wish to have this Board consider -- the alleged injury to land owners in the vicinity of the proposed site caused by the threat of expropriation, of their property in the future should the Applicant's application be dismissed without prejudice -- was not raised by the Intervenors prior to the Licensing Board's decision rendered on February 18,1981[
This factual issue was not raised by the Intervenors until April 6, 1981.
In their " Application for a Temporary Stay of Licensing Board's Decisions of February 18, 1981 and March 26, 1981; and petition for an Extension of Time to File an Appeal Thereof," dated April 6,1981, 7/
See also Tennessee Valley Authority (Hartsville Nuclear Plant, Units 1A,2A,18and28),ALAB-463,7NRC341,348(1978).
8,/
As the Licensing Board noted, the Intervenors' argument in support of dismissal of'the Applicant's application with prejudice concentrated on past alleged wrongful actions of the Applicant which allegedly deceived the Board, Staff and Intervenors, Memorandum and Order of February 18,1981, a t p. 3.
See also Licensing Board order dated December 16, 1980 which characterTzes Intervenors' public interest argument as one based on Applicant's alleged " hidden deceitful action" (at 1).
(Application at 3) the Intervenors raised for the first time the issue of alleged injury to landowners in the vicinity of the proposed site caused by the apprehension of future expropriation if the application is dismissed without predudice.U Accordingly the Staff does not believe this issue should be addressed now by the Appeal Board.
Furthermore, it is not certain that dismissal with prejudice would necessarily prevent the injury now asserted by the Intervenors since it is not clear as a inatter of law that dismissal with prejudice would preclude the filing at some later time of another application or a request for early site review for the Islote site.E Finally, the instant request to have this Boarf accept and consider the eight proffered affidavits can only be granted if the Intervenors
-9/
The Intervenors indicated in support of their request for an extension of time in which to file their appeal that it would take time to obtain affidavits from the landowners (Application et 3).
The request for an extension of time was granted by the Appeal Board on April 10, 1981.
10/ It is noted that prior administrative determinations are not necessarily controlling where facts or law might have changed.
Federal Trade Commission v. Raladam Co., 316 U.S. 149, 150-51 (1942); Connecticut Light S Power Co. /. Federal Power Commission, 557 F.2d 349, 353 (2d Cir. 1977).
Furthermore, even where there are
' such changed circumstances, it has been recognized that res A
ata and collateral estoppel principles will not necessarily be Inh Twhere there are competing policy factors which outweigh the appin.
Ion of those doctrines.
Alabama Power Co. (Joseph M. Farley Nuclear ont, Units 1 & 2), ALAB-182, 7 AEC 210, 213-15 (1974),
aff'd and unded on other grounds, CLI-74-12, 7 AEC 203 (1974).
move to reopen the record to include the affidavits.b If the instant request is treated as a motion to reopen the record, the Staff believes that the Intervenors have not met the necessary burden to support the reopening of the record. As the Appeal Board has previously stated, "the proponent of a motion to reopen bears a heavy burden."N Central to that burden is a demonstration that the issue asserted is a significant one.E The Intervenors have failed to make any such showing.
In fact, as
,11/ Metropolitan Edison Co. (Three Mile Island liuclear Station, Unit tio. 2), ALAB-486, 8 NRC 9, 21 (1978).
12f Id..
See also Kansas Gas and Electric Co. (Wo'1f Creek Generating Station, Unit lio. 1), ALAB-462, 7 NRC 320, 338 (1978).
These holdini;s are wholly supported by the reasoning of the Court of Appeals in the recent decision in RSR Corporation v. FTC,fio.
80-2131, slip.op, at 5 F.2d (D.C. Cir., April 30,1981),
wherein the Court of Appeals stated:
Both the Supreme Court and this court consistently have subscribed to the rule that administrative agencies are not to be required to reopen their final orders "except in the most extraordinary circunstances" (citations omitted). The need for that principle is evident, for "[i]f upon the coming down of the order litigants might demand rehearings as a matter of law because some new circumstance has been observed, or some new fact discovered, there would be little hope that the adainistrative process could ever be consummated in an order that would not be subject to reopening
" (citations omitted).
13f In Three Mile Island, supra, the Appeal Board also noted that if an initial decision has already been rendered on an issue, it must appear that reopening the proceeding might alter the result in some material respect.
.I_d_., a t 21.
Intervenors have not made a showing here that this matter is of such significance that it might alter the prior decision.
indicated above, it is uncertain whether the injury that Intervenors assert may result from a dismissal without prejudice will in ady way be precluded should the Licensing Board's decision be reversed by the Appeal Board.
III. CONCLUSION For the foregoing reasons the Staff believes that the instant request should be denied.
Respectfully submitted
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Henry JJ McGurren Counsef for NRC Staff Dated at Bethesda, Maryland this 26th day of June,1981.
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1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the M;tter of PUERTO RICO ELECTRIC POWER Docket No. 50-376 AUTHORITY (North Coast Nuclear Plant, Unit 1))
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO INTERVENORS' MOTInN DATED JUNE 13, 1981" 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 Conmission's internal nail system, this 26th day of June,1981:
Alan S. Rosenthal, Esq., Chairman
- Mr. Gustave A. Linenberger*
Atomic Safety and Licensing Atomic Safety and Licensing Board Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20"55 Dr. Richard F. Cole
- Or. John H. Buck, Member
- Atomic Safety and Licensing Board Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Appeal Board Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Maurice Axelrad, Esq.
Lowenstein, Newman, Reis, Axelrad & Toll 1025 Connecticut Avenue, N.W.
Washington, DC 20036 Esq. Jose F. Irizarry Gonzalez General Counsel Sheldon J. Wolfe, Esq., Chairman
- Puerto Rico Electric Power Atomic Safety and Licensing Board Authority U.S. Nuclear Regulatory Commission G.P.O. Box 4267 Washington, DC 20555 San Juan, PR 00936 Alberto Bruno Vega, Assistant Eng. Francisco Jimenez Executive Director, Planning Box 1317 and Engineering Mayaguez, PR 00708 Puerto Rico Electric Power Authority Mr. Gonzalo Fernos, Chaiman G.P.O. Box 4267 Citizens for the Conservation of San Juan, PR 00936 Natural Resources, Inc.
503 Barbe Street Mr. Mario Roche Velazquez Santurce, PR 00912 Executive Director, Mision Industrial, Inc.
Esq. Geman A. Gonzalez Mision Industrial De Puerto Rico Attorney for Mision G.P.O. Box 20434 Industrial Inc.
Rio Piedras, PR 00925 Mision Industrial De Puerto Rico G.P.O. Box 20434
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Atomic Safety and Licensing Rio Piedras, PR 00925 Board Panel
- U.S. Nuclear Regulatory Commission Docketing and Service Section*
Washington, DC 20555 Office of the Secretary U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, DC 20555 Appeal Board
- U.S. Nuclear Regulatory Commission Washington, DC 20555 Henry W McGurren Counsel for NRC Staff
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