ML20030D086
| ML20030D086 | |
| Person / Time | |
|---|---|
| Site: | 05000376 |
| Issue date: | 08/24/1981 |
| From: | Fernos G CITIZENS FOR THE CONSERVATION OF NATURAL RESOURCES, IN |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8108310371 | |
| Download: ML20030D086 (31) | |
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41 AUG 2 71981 > '-
W c'., cf the Sccrchry 7
UNITED ST ATES OF AMERIC A i' c c.. y ; ;ca ce nench NUCLEAR REG ULATORY COMMISSION E
N A cp BEFORE T HE ATOMIC SAFETY AND LICENSING APPEAL BO ARD in the Matter of PUERTO RICO ELECTRIC POWER AUTHORITY NORTH COAST NUCLEAR PLANT, UNIT 1 Islote Wa rd, Arecibo, Puerto Rico i
DOC KET NO. 50- 376 l
lNTERVENORS' BRIEF :
WRIT OF EXCEPTIONS TO ASLB MEMORANDUM AND ORDER OF FEBRUARY 18, 1931 GONZALO FERNOS i
i FOR INTERVENORS o3 24 A UG UST,1981 3
oh 0108310371 810824 5" ^"" ",R
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Intervenors' Brief
-i-24 August,1981 TABLE OF CONTENTS PAGE I N T R O D UC T IO N..............................................
1-2 5TATEMENTOFFACTS...................................
3 - 10 DISC USSIO N OF EXC EPTIO NS.................................
11 - 21 C O N C L US I O N...............................................
- 22 i
e PRAYER......................................................
23 SWO R N STAT EME NT..........................................
23 CERT IFICATE OF S ERVIC E......................................
24 TABLE OF AUTHORITIES STATUTE :
ATOMIC ENERGY ACT, 42 USC i 2239 ( a )
22 e
REG ULATIO NS :
RULE 41 OF FEDERAL RULES OF civil PROCEDURE...........
20, 21 NRC P.ULES O F PRACTICE - 10 CFR i 2.107.................
20 e
COURT CASES :
CARTER V. UNITED STATES, D.C. Mo. 1979, 83 F.D.R.11'6..
14,18 l
l DELTA THEATERS, INC. V. PARAMOUNT PICTURES, INC.,
ET A L., 398 F. 2d 323 ( 1968 ).............................. 14,18 FENDLER V. WESTGATE-CALIFORNIA CORP.,
1 975, 5 27 F. 2d 1 1 68.....................................
14,18 i
e OTHER AUTHORITY :
PHILADELPHIA ELECTRIC COMPANY
( Fulton Station, Units 1 and 2 ) Dockets 50-463 and 50-464...
1, 17, 1 8, 20
~.
)
24 August,1981 UNITED STATES OF AMERIC A NUCLEAR REG ULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD ( ASLAB )
in the Matter of PUERTO RICO ELECTRIC DOC KET NO. 50- 376 i
POWER AUTHORITY ( PREPA )
j Applicant Proposed North Coast GONZALO FERNOS, PRO SE, ET AL.
Nuclear Plant ( Unit 1 )
Islote Ward, Arecibo, Puerto Rico i
a INTERVENORS' BRIEF :
WRIT OF EXCEPTIONS TO AS LB MEMORANDUM AND ORDER OF FEB.18,1981 TO THE HONORABLE APPEAL BOARD :
i f
e COMES NOW the undersigned Intervenor, Pro Se, and in representation of Members of Citizens for ti:e Conservation of Natural Resources, Inc. ( CCNR ), collectively i
referred to as the Intervenors, and respectfully states, alleges and prays :
e INTRODUCTION: The narrow issue of this appeal centers around whether the dismissal of the i..sant case would best serve the public interest by being dismissed with or without prejudice ; whether the Licensing Board having granted the latter without an opportu-nity for hearing was vielative of due process of law ; and whether ASLB,' disregarding that f
l this was the second time Applicant withdrew its application,affected the decision below in l
a way contrary to the dismissaldoctrine prevalent in the Federal jurisdiction.
j There seems to be no precedent to this case in the NRC issuances. However, nine days-after the cppealed order was issued, on February 27, 1 981, the ASLB issued a Decision and L.
1/
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Order in the Fulton case " Dismissing Proceeding With Prejudice " for similar reasons which I
were not recognized as valid arguments by the ASLB of the instant case. Because~ both cases l
l
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-1.- Philadelphia Electric Company, Fulton Generating Station, Units 1 and 2, Dockets Nos.
50-463 and 50-464.
Intervanors' Briaf 24 August,1981 i
present a common question of law and fact, in the interest of justice and economy, on August 3,1981, Intervenors of the case at bon requested that the two cases be consolidated in a joinder of actions for appellata scrooses only. On August 10, 1981, the Appeal Board denied Intervenors'
" Motion of Consolidation ". /
2 Intervenors hereby take exception to such a ruling, as well as to the Appeal Board's ruling precluding the inclusion of eight offidavits from owner-residents of the Nuclear Plant Project site showing material injury to them, as untimely raised ; and further, Intervenors take exception to the foreclosure of discussion of alleged corruption and demoroli'-
zati il levels of Applicant's operations which the Appeal Board had ruled to defer its con d cion for the occasion when Applicant renews its application for a third time, if it ever
-does. It seems that we need not rehash arguments already wielded,that the Licensing Board --
either sy sponte or by direction of the Commission --would not be discharging adequately its 4
dual and sometimes conflicting responsibilitiesas watchdog for atomic safety and promoters of nuclear plant constructions by brushing aside new evidence.of corruption within Applicant's i
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operations and other proven injury tothe public interest.
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2.- The den:al was issued without an opinion and without affording Applicant and NRC Staff
- an opportunity to express their views.
intervenors' Brief 24 August,1981 e STATi, MENT OF FACTS : There is perhaps no other case in the history of NRC proceedings for licensing constn2ction of nuclear plants which has manifested so many erratic, haphazard events, some beyond rational explanation, as has been with the instant case, Docket No. 50-376. Contracts with designers, suppliers arid contractors preceded the timing for awarding them and the only plausible explanation would be to conclude + hat those contracts provided a source of bri-bery and corruption which have become institutionalized within the agency.
Although the NRC has refused to look now at Applicant's present corrupt state, the chronological events which will be succinctly stated below could serve as a basis to show the irrationa: sequence of events and suggest a possibte explanation of their origin.
e 1.- On August 16, 1966 the Puerto Rico Planning Board ( PRPB ) conducted public hearings at Salinas, Puerto Rico on the location of the proposed Thermonuclear Plant at Aguirre Ward, Salinas. The project was received most warmly b, Mayor Godreau and the majority of the participants.
e 2.- On May 24,1967 the PRPB authorized the Puerto Rico Water Resources Authority, today, Puerto Ric, Electric Povrer Authoity ( PREPA ) to acquire the neces-sary land for the construction of a huge Generating Station comprising 4 fossil plants of 460 megawatts each and 4 nuclear cients of 600 megawatts each with a total generating capacity of 4,240 megawatts, which is more than twice the current generating capacity in Puerto Rico.
e 3.- On August 12,1970, without prior approval of the project by the corre-sponding Federal and local agencies, PREPA signed contract with Westinghouse g
l l
Electric International Company for the. sum of $101,420,000 for the construction of l
the first Nuclear Plant in Aguirre.
intervenors' Brief -
24 Augusi,1981 Of that sum i+ was recently proven that $1,250,000 was given in bribery to decide the contract in favor of Westinghouse above its competitors.
e 4.- On November 28,1970 PREPA for the first time filed with the NRC an application for licensing the first Nuclear Plant in Aguirre, under Docket No. 50-376.
e 5. - On Se.atember 3,1971 the PRPB authorized the acquisition by PREPA of 59.506 cuerdr.s of land for the construction of the thermal waters discharge canal.
Such authcrization was granted under Special Condition imposed on PREPA by the PRPB, pusuant to a partie t approval given on April 29, 1971 which stated that before commencing construction of the project, PREPA had to obtain the authorization of the Environmental Quality Board ( EQB ) and the U.S. Army, the latter with regard to the permit necessary for the waterfront work required for the project. Disrega rt:ing those requirements, PREPA purchased the necessary equipment, awarded contracts for the construction of the nuclear plant, and had completed the colossal excavation for the first nuclear reactor. To legalize the clandestine construction, the differ-ent governmental agencies entrusted with recommending approval of the project accelerated their respective proceedings of approval. In January and February,1972 the Public Service Commission ( PSC ) conducted pro forma public hearings to recom-mend the waterfront work. The PRPB, totally ignorant of the licensing procedures instituted by the NRC, ruled in its approval of the project on March 15,1972, that
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the endorseruent of the EQB be given to the project after the completiori of the ccnstruc-tion, prior to ob'aining a use permit. CCNR appealed the PSC decision to the Supe-rior Court of San Juan, which granted the writ of certiorari sought, yet upon petition 4
of reconsideration filed by PREPA and manipulations behind closed doors, the e7se was transfered to another courtroom which revoked the previous decision ( Case No.
intervenors' Brief 24 August,1981 Civil 72-5462 (B) ).
CCNR further appealed to the Supreme Court of Puerto Rico, which on November 12, 1973 sus &ined the lov er court decision with one Associate Justice issuing a dissident vote ( Certiorari No. 0-73-308 ).
e 6.- On April 27, 1972 in a separate action, a coalition of four environmen-talist organizations, the Institute of Environmental Studies, Puerto ',1co Industrial Mission, Citizens for the Conservation of Natural Resources ( CCNR ), Sierra Club of Puerto Rico and the undersigned Intervonor for himself and in representation of the four organizations filed an appeal from the PRPB's March 15, 1972 approval of the project, before the Puerto Rico Appeal Beard on Constructions and Lotifica-tions( PRABCL ). PREPA filed therein a petition for dismissal of the appeal. Such a petition was originally denied by PRABCL; however, upon PREPA's requesting reconsideration and as usual, with manipulations behind closed doors, PRABCL revoked itself and granted PREPA the remedy it sought, rejecting the appeal on grounds that PRABCL lacked jurisdiction to look into the matter and decide the contro-ve rs y.
The decision wa s appealem to the Superior Court of San Juan, which denied it outrig'.it. Subsequently, the coalition appealed to the Supreme Court of Puerto Rico watch sustained the lower court decision ( Certiorari No. 0-77-238).
e 7.- In June,1972 the EQB conducted public hearings on the Aguirre Nuclear Pla nt. The findings of the panet designated to took into the matter were adverse to the interest equght by PREPA. In the meantime the NRC informed the Governor of Puerto Rico, Hon. Luis. A. Ferrd, tl'at the Commission would not approve the project because of its location over Esmeralda fault, which has not been proven inactive for a reasonable lapse of time. Consequently, the Aguirre Nuclear Plant project was 4
cancelled and the reactor purchased from Westinghouse was placed up for sale, e 8.- During the next year,1973, PREPA created a acmmissicn, with the e
Ir.lervenors' Br;ci 24 August,1981 pM.!.uf pation or ol. er governmental agencies and invited environmentalists, and entmsted the comm. :.on to examine 17 possible alternate sites to the ill-fated Aguirre project. AmonJ the sites considered was Islote Ward, Arecibo, which was rejected by the majority of the commission members. However, it was precisely that rejected site that PREPA proposed for the North Coast Nuclear Plant.
e 9. - Or September 27,1974, PREPA filed with the NRC Licensing Board a revised Application for License pursuant to 10 CPR S 50.33 in which the new application was referred to as an " amendment". However, the notice of opportunity for public participation in NRC public hearing on the North Coast Nuclear Plant,
Unit 1, published in the FEDERAL REGISTER on February 15, 1975, implies it was no such amendment but a new project.
e 10.- In March,19f o three environmental organizations and two individuals filed with the NRC petitions for leave to intervene and all five ( CCNR, Puerto Rico O
Industrial Mission, Arecibo Committee Against Potlution, Electrical Engineer Francisco Jimenez and Architect Gonzalo Fernds ) were accepted as intervenors in August,1975.
e 11.-- NRC Licensing Board conducted two public hearings on April 10, 1975 and June 10. 1975 with regard to North Coast Nuclear Plant, Unit 1, but only on procedural matters, o 12.- On May 23,1975 the Applicant, in the exercise of its power of emi-nent domain, condemned ( expropriated ) the land necessary for NORCO-NP-1 Pro-ject. Even though public hearing was held on June 10, 1975 the Applicant never informed the NRC Licensing Board nor Intervenors of such action.
e 13.- On August 25, 1975 Intervenors filed with the Licensing Board a hiotion 4
to Dismiss requesting that the application be summarily dismissed or else a special hearing "a called within 30 days to adjudge the motion. PREPA opposed tha motion
Intervcnors' Bri:f 24 August,1981 and the Licensing Board summarily denied the Motion to Dismiss. The basis for such a motion was that PREPA had publicly announced postponement of the project for four years and that by then the cost would have substantially increased by two fold.
e 14.- On October 25, 1975 and November 24, 1975 a coalition of all Inter-venors filed a Motion Requesting Suspension of Hearing Activities and Memorandum in Support thereof. The aforementioned request stemmed from PREPA's public announce-ment that it would postpone beginning the NORCO-NP-1 project construction planned for 1981 to at least 1985, or, a four year deferment. The Motion and Memorandum presented 8 contentions affected by the passage of time which were accepted by the Licensing Board as issues in controversy. Each contention was supported by a sworn statement subscribed by an expert in their respective field. At the request of Applicant,
on December 16,1975,the Licensing Board held in abeyance the above motion and later on denied it. Intervenors' Motion for Reconsideration has not yet been ruled on by the Licensing Board, although the issues have become moot by suceeding events.
e 15.- On December 5,1975 following a letter from PREPA's executive director to the Licensing Board, dated December 3,1975 (this letter was never served to the Intervenors) Applicant filed with thc Licensing Board a motion in a lettt. format inform-l ing the latter that"because of certain economic considerations, it had decided to post-pone indefinitely the NORCO-NP-1 Project" and "had discontinued all design and fabri-cation efforts." The motion-letter further requested the Licensing Board "that the current proceeding before this Board be continued with the objective of issuance by the Board of 1
l a partial decision on appropriate site suitability and environmental issues," and also requested, as stated above, that Intervenors' Motion Requesting Suspension of Hearing Activities be held in abeyance.
1 e 16.- On July 2,1976 pursuant to a letter of April 30, 1976 from PREPA's l
executive director to the Director of Nuclear Reactor Regulation, the Applicant filed
Intervenors' Brief 24 August,1981 with the Licensing Board " Motion to Proceed With Hearings On Site-Related Issues And To Issue Partial Initial Decision Thereon". (In April,1977 NRC Staff issued FES) e 17.- On August 5,1976 Applicant quietly filed with the Court of Expro-priation 38 motions of Desistance, requesting the Court to desist from the expro-priation of the land acquired to site the NORCO - NP - 1 project at Islote Ward of Arecibo, reversing the land title to its original owners. This reversal action was not communicated to the Licensing Boa'.t nor to the Intervenors.
e 18.- On Octcber 12, 1976, pursuant to a Memorandum issued by the Licensing Board on October 5,1976, Interverrors filed " Motion in Response to ASLB's Memorandum Concerning Intention of Intervenors. " Because of the irregularity of the proceeding, Intervenors' Response stated their position, inter alia, that Applicant and NRC Staff should be required to respond to our Motion Requesting Sust>ension of Hearing Activities, or else be forbidden to reply 2.t a later date.
Subsequently, on October 20, 1976, the Licensing Board, w thout affording Appli-cant and NRC Staff the right to reply, and without giving any valid reason save to state its decision was based on the Douglas Point case, denied outright the Motion Requesting Suspension of Hearing Activities. Thereafter, upon I'ntervenor's Motion of Reconsideration of November 8,1976, the Licensing Board on November 30, 1976 l
l ruled to leave the
..wes open for discussion during the next public hearings which n ver took place, e 19.- On Febmary 27, 1978, Intervenors filed a second " Motion to Dismiss l*
or to Grant Alternate Relief". The motion was opposed by both Applicant and NRC Staff and naturally, it was denied on May 1,19i 8.
The only import of such an d
Order was the part directed to Applicant which states:
" the Board considers the Applicant remiss in not keeping
Intervenors' Brief 24 At. gust,1981 it and the Parties up-to-date on the developments j
in Puerto Rico affecting this application and in order to remedy the situation, the Applicant will submit a status report on September 1,1978 and,
if necessary, at four-month intervals thereafter. "
e 19A* ( See footnote, p.10 )
e 20.- On February 27, 1980 Intervenors discovered the hidden actions by Applicant referred to in item 17 above regarding the Motions of Dosistance directed to reverse the expt;priations of the land required for siting NORCO - NP 1 Project.
e 21.- On April 30, 1980, Intervenors filed with the Licensing Board a paper entitled:" Petition Requesting Evidentiary Hearings to Request Applicant To Show Cause Why Their Application Should Not Be Dismissed For Lack Of Intention To Build.,"
Applicant and NRC Staff opposed this show cause petition. Consequently, the Li-censing Board denied the Intervenor's petition. However, en June 4,1980 thim Appeal Board sua sponte issued Order questioning the holding below and ordered Applicant and the NRC Staff to furnish the Appcoi ' bard "by memoranda with their view on the matter. " Conseqcently, on August 11, 1980 the Appeal Board reversed the ASLB decirion and remanded the cause to the Licensing Board for further proceed-ings consistent with the Appeal Board's Opinion.
i e 22.- On August 19. 1980 the Licensir.g Board issued an Order announcing jts intent "to conduct an ' evidentiary hearing on the issue of whether Applicant has abandoned any intention to build the North Coast Nuclear Plant, Unit 1. " Also ordered " Within thirty (30) days after service of this Order, the parties shall, if deemed necessary, initiate and complete discovery procedures... "
e 23.- On September 3,1980, Intervenors filed, pursuant to the Licensing Board Order of Discovery, Interrogatories and Requests for Documents directed to I
the Applicant.
e 2 4.- On September 9,1980 the NRC Staff filed Interrogatories and Requests
Intervenors' Brief 24 Augu:t,1981 for Documents directed to the Applicant.
e 25.- On Septembe 11, 1980 Applicant, rather than answer the Interroga-
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tories, file with the Licensing Board two short motions entitled : " Withdrawal of Application " and "Metion for Termination of Proceeding ", announcing its withdrawal of the application and requesting the termination of proceeding without any further ado.
e 26.- On September 18, 1980 Intervenors filed with the NRC a paper entitled
" Motion for Direct led ) Certification to Request Apolication Be Dismissed With Prejudice. " The Commission, however, on October 17, 1980, issued Order declining te grant directed certification and transferring Intervencrs'. Motion to the Licensing Board for decision.
e 27.- On February 18, 1931, pon assuming jurisc'iction over the trans-ferred Motion for Directed Certification, the Lict 1 sing Board issued " Memorandum and Order ( Granting Applicant's Motion For Termination Of Proceeding, And Grant-ing Without Prejudice The Withdrawal Of Application ) ", which throughout this writ it is referred to as " the appealed order ". A Petition t'or Reconsioration filed by Intervenors on March 3,1981, was denied on March 26, 1981. Subsequently, ex-tensions of time to file Intervenors' Appeal Brief have been granted up to and in-cluding August 24, 1981. By this means Intervenors seek from the Appeal Board to rever.se the February 18, 1981 and March 26, 1981 decisions of the Licensing Board.
In other words, Intervenors move the Appeal Board to recognize and rule that the.
circum 3tances of this case merit a dismissal of the application WITH PREIUDICE.
- e 19A ( Omission from page 9 ).- In April,1979, NRC Staff issued the Site Safety Eva tuation Report of NOCO-NP-1 Project.
Intzrv nors' Bricf 24 August,1981
-: DISC USSION OF EXCEPTIO NS :-
e A.- Granting Applicant's Motion for Termination of Proceeding : The ASLB erred as c matter of law in terminating the prcceeding without notice and without affording Intervenors the opportunity for hearing in a matter involving material issues of disnuted facts and important quc:tions of law. To this end, Intervenors' " Motion for Direct (ed) Certification " addressed to the Commission on September 18, 1980, states, inter alia :
6.- That intervenors firmly believe that an adjudication of the case by dismissing the application 'without prejudice '
while proceedings are to be stopped short of carrying out any fact findings would thwart the due process principle and thus leave the case open to further litigation. * *
- Intervenors respectfully pray the Honorable Commission * *
- that the pro-ceedings Egt be termincted until after evidentiary hearings are conducted to enable he Licensing Board to know the full facts why the disminal cannot be less than with p.eiudice."
Further, in Intervenors' submission of December 3,1980 to the Licensing Board, at footnote on page 4, the request for an opportunity to be heard is seaffirmed in these words :
" It follows that a partial discovery proceeding and/or evident-iary hearing would be necessary to prove beyond a shadow of a doubt that Applicant's deceitful actions do not deserve the grant-ing of a dismissal without prejudice." ( Emphasis added.)
In the scne submission of December 3,1980, at pp. 8,7, intervenors also stressed the need for an opportunity to be heard, expressed thus :
"e Intervenors believe that they have given enough arguments to justify a dismissal of the application with prejudice. Naturally, those arguments cannot be fully substantiated unless some limited discovery and/or evidentiary heari,gs are conducted. Since it is Applicant who is interested in keeping its option open for a pos-sible future renewed c'pplication, Applicant should not and has not requested at thisstage the foreclosure of Intervenors' right to be given the opportunity to prove their point. Apparently, that is the reason why Applicant's Response of Oc;obe 3,1980, is de-void of any argument against the licensing Board conducting evidentiary hearings in Puerto Rico for determining whather the withdrawal of the application wouldbe granted with prejudice or not. * *
- due processand *he cause of justice would best be served if the Licensing Bocrd i.istitute a limited discovery proceed-ing and/or evidentiary hear ngs aimed only to prove Intervenors'
i intervanors' Brief 24 August,1981 contention that a dismissal of the application without prejudice will either injure the public interest because of the above recaons or becauseof such action foreclosing the consideration of other perhaps more practical means of generating electricity.
- *
- Intervenors respectio!!y pray the Licensing Doord to grant the dismissal of the application with prejudice without any fur-ther ado or after a fact-finding proceeding is instituted in which Applicant would be ordered to answer pertinent questions with rugard to the acquisition and disposal of the Nuclear Plant site land * *
- and/or after conducting evidentiary hearings with re-gard to Intervenors' allegation that a dismissal of the application without prejudice will injure the public interest..."
t-The appealed order is devoid of any discussion or even any mention of the above quoted allegations and prayers. The Licensing Board ruled by omission, thus going around Intervenors' l
constitutional rights to due process of law. The essential elements of this constitutional tenet are notice and opportunity to be heard and to defend in orderly proceeding. This is the regular course of administration of justice in an adversary system as ours, be it an administrative or judicial forum. The Licernq Board, however, disregarded these essential elements of the due l
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process principle.
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Had the Licensing Board granted Intervenors' request for hearings, the material injury to owner-residents of Islote Word, Arecibo, Puerto Rico, general pre;udice to the public interest and the corruption in the managerial personnel of PREP., would have become potently evident and subsequently would have weighed strongly to support a dismissal with prejudice.
Therefore based solely on this argument, the Appeal Board should order the reopening of proceeding for allowing the gathering of new evidence and further, remand the case back to the Licensing Board for further proceedings consistent with the due process principle.
Intervenors' Brisf 24 August,1981 B.- Granting Without Prejudice The Withdrawal of Application : The ASLB erred as e
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a matter of law in granting without prejudice Applicant's withdrawal of the application, without notice and without affording intervenors an opportunity for hearing, resolved on grounds which go, not to the content of the motion for Withdrawal of Application of September 11,1980, but to a favorable interpretation of Applicant's self-serving refutal of Intervenors' arguments for a dismissal of the case with prejudice. The Licensing Board further supports Applicant's views by brushing aside and ruling as unimportant, Intervenors' allegation that Applicant did not come out straightforwardly when deciding not to build the nuclear plant. In lieu, the Licensing Board accepted a belated news item brought up by Applicant five (5) years later, as an adequate and timely notice to the parties. The ASLB, thus, contradicts itself when in its Order of May 1,1978 it said :
" The Board considers the Applicant remiss in not keeping it and the Porties up-to-date on the developments in Puerto Rico offecting this application..." (Emphasis added)
The ASLB only mildly tried to put an end to Appucant's remissance to keep the Parties informed, by ordering Applicant :
" in order to remedy the situation, the Applicant will submit a status report on Scptember 1,1978 and, if necessary, at four-month intervals thereafter." (Emphasis added.)
l Applicant's periodical reports contain nothing of substance which otherwise would have given a hint about the decision already taken not to build a Nuclear Plant in Puerto Rico. Those l
l loconic reports are reduced to inform the ASLB that PREPA was waiting for some seemingly end-less studies which would enable Applicant to decide how much electric energy generating ca-pecity Puerto Rico will be needing in the forthcoming years, before deciding if PREPA would go ahead with the Nuclear Plant Project or not. Yet, the true fact is that during that " waiting period" those reports ostensibly lacked information about negotiations already underway to sale the reactor pur: based from Westinghouse ( See item 3, page 3 ); the cancelling of its contracts for the supply
Intervenors' Brief 24 August,1981 of uranium ; the concelling of the contract with the nuclear steam supply system contractor ;
and the pleadings in court to give back the Islote site land to its original owners. All the while,
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Applicant was secretly negotiating the design and construction of next electric power generating 3/
units : a compound of three (3)- 300 megawatt coal-fired steam plants, without revealing those accomplished actions to the Licensing Board and the Parties. The fact that Applicant misled the Licensing Board and the Parties into believing that it was planning to build only one 300 megawatt coal-fired plant, when in reality the project comprises three units, is in and of itself prima facie evidence of Applicant's failure to comply with the ASLB Order of May 1,1978. "To preserve integrity of judicial proceedings, district court has power to dismiss action with prejudice if plaintiff fails to comply with 'any order of court'." Carter v. United States, D.C. Mo.1979, 83 F.D.R.116. " Decision to dismisswith prejudice for failure to comply with an order is within discretion of trial court." Fendler v. Westaate-California Coro., 1975, 527 F 2d 1168, and cases cited therein.
I Further, the ASLB erred as a matter of fact and law (the appealed order on page 4 ) in stating: " Neither in their Motien for Direct Certification and Addendum of September 18,1980 nor in their Reply of December 3,1980 do the Intervenors assert they will suffer any legal harm other than leasing the door open for subsequent litigation." That assertion is out of context.
Firstly, because the ASLB denied Intervenors the opportunity to fully present their case through discovery procedure and hoorings. Secondly, in intervenors' submission of December 3,1980, p. 6, 4
3.- Footnote 2 of the appealed order states, inter alia, that "on December 29, 1979, theAuthor-i ity [ Applicant] advised that the next addition to its generating system would be a 300 megawatt coal-fired 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." Documents recent-ly available to Intervenors ( EXHIB:f "B" ) reveal that contrary to Applicant's assurance to the Licensing Board, its plans call for construction of three-300 megawatt units. Also, the assertion l
that the deferment was likely to be for a maximum of two years lacks veracity as evidenced by Applicant's action of withdrawal of its application on September 11,1980. (See p.21, EXH. "B")
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Intervenors' Brief 24 August,1981 it is clearly stated that " prejudice [ individually and collectively] to public interest has been repeatedly stated throughout this proceeding." That some submission in page 7 gives the strongest sign of warning of the error of granting a license to the Applicant of the instant case to build and operate a Nuclear Plant in Puerto Rico. It is said in these words :
" Public interest would also be adversely affected by sabotage of electric installations. Inview of the fact that nuclear power plants' construction and operation involve a highly sophi-ticat-ed technology which cannot tolerate even on Act of GW with-out disastrous consequences, sabetoge represents on enormous risk of disaster weighing adversely on public interest. Such a risk should be thoroughly considered by the Licensing Board when deciding whether to leave open the option to Applicant to build a nuclear plant in a future date. To support this alle-gotion one must stress that Applicant's labor union ( UTIER ) is known for its li nk with Puerto Rico's Socialist Party which also has ties with the Communist regime in Cuba. During past strikes the incidence of sabotage to Applicant's electric power gener-oting stations and transmission lines committed by union mem-bers employed by Applicant has gotten out of hands, compelling on one occasion the Governor of Puerto Rico to mobilize the entire National Guard to protect such installations and to put a stop to the widespread sabotage. There is scarcely any need for more words to anticipate the latent risk of disaster to which Nuclear Plants in Puerto Rico would be subjected under the above circumstances, eitherforpolitical or strictly laboral reasons, all in detriment of public interest."
ASLB erred es a matter of fact ( the appeal order on page 4 ) in accepting at face value Applicant's denial of having engaged "in any deceitful, wrongful actions and cited various sub-missions wherein it had made known tothe Board, Staff and Intervenors its intentions with regard to the instant proposed facility..." Obviously, the ASLB has not adequately assessed Applicant's situation ano thus has failed to properly monitor some of Applicant's decisive actions which were deliberately kept from reaching the Licensing Board, NRC Staff and Intervenors. PREPA, as a.
public corporation, is not always responsible for every one of its actions, some of which are politically motivated. Yet, under the terms of NRC requirements for any licensing prospect, it is the Applicant's duty during the term of the proceeding to keep the Licensing Board, NRC Stcff and Intervenors informed of any event that in any way, minimal as it may appear to be, affects
Intervenors' Brief 24 August,1981 the outcome of the app;ication assessment, it is not merely on obligation delimited by whatever information the NRC Staff asks of the Applicant. Since the NRC Staff has no cristal ball, no clairvoyant faculties, nor does anyone expect them to have a spy network, the NRC Staff de-pends solely on the straightforwardness of Applicant to inform them --beyond the routine data compiled from the various required studies --on any decisive data which stems from other sources, such as with the instant case, of political nature, to enable the Appeal Board to place itself in a position of insight into the local political panorama and how it had adversely influenced the local Government decision to cancelthe Nuclear Plant option for Puerto Rico. A decision which even though Applicant deliberately kept it from reaching the NRC, Applicant was compelled to inform the ASLB of its o_ srrence. To confirm these facts it is deemed necessary to let a discovery procedure take place and the whole issue to be aired at a public hearing. What does not seem correct is that the Licensing Board has reached the conclusion that there is no evidence of Appli-cont's allegsd wrongdoing when the basis for the conclusion is half-truths and self-serving un-verified information supplied by Applicant. Had Applicant been honest about the situation, the application would have been withdrawn bythe end of 1975 or early in 1976 in lieu of remitting the infamous letters of December 3 and 5,1975 informing the ASLB about the " indefinite post-ponement" of the Project. Had Applicant come out straightforwardly it would have spared the NRC i
Staff the waste of taxpaye,Js money, human efforts and time consumed in a futil endeavor as has proven to be the preparation of the Final Environmental Statement (FES) in April,1977 and the Site Safety Evaluation Report in April,1979.
The above assertions stem from the following events : Ever since the cancellation of the i.!I-fated Aguirre NucIcar Plant in 1972, opposition had been mounting in Puerto Rico against building i uclear plants on the Island. When on February 15,1975 the local newspaper published a t eoeral Register Notice of same date about public hearings to be held on the Islote Ward, Arecibo Nuclear Plant, opposition to nuclear plants which had kept mounting reached its peak during the 1976
~
intervenors' Brief 24 August,1981 general elections compaign, specially in Arecibo. Consequently, both gubernatorial condidates,
~
Rafael Hern6nder Col 6n and Carlos Romero Barcel6, made a compaign promise to the people of Arecibo that if they were elected governor of Puerto Rico, they would cancel the nuclear option for any future electricity generating facility to meet PuertoRico'sgrowing needs. Applicant failed to inform this crucial information to the ASi B, the NRC Staff and the Intervenors, fully aware of the ensuing new gubernmental public policy to outcast nuclear plants from the Island's electricity generating program. Three months before the elections the effects of the new policy were made evident when, under the disguise of need for money, Applicant filed through the Depetment of Justice 38 Motions of Desistance requesting the Court of Expropriation of the Superior Court of Puerto Rico to reved the title of the expropriated land to its original individual owners. At that very moment, on August 5,1976, the coup de grace was given to NORCO-NP-1 Project. Appli-cant, however, instead of coming out straightforwardly resorted to dillydailying tactics, having the ASLB make believe the delay to proceed with the NORCO-NP-1 Project was caused by the need "to brief the incoming Administration in Puerto Rico with respect to the project." ( See Applicant's letter to the Ucensing Board of February 16, 1977.)- As said above, however, the reality was that the government of Puerto Rico had completely given up plans to build the Nuclear 4/
Plant. This is a fact well known to the Applicant all the time, yet for othe.r considerations it kept the NRC and its instrumentalities believing that the interest in the proie.ct had remained unaltered, when it was not true. In the Fulton case, supra, the Licensing Board held that the lack of "a firm plan to construct nuclear facilities on the site " was sufficient to dismiss the pro-ceeding with prejudice. Administrative Judge, Hon. Hugh K. Claik, oredding, stated in the 4.- As Intervenors explain in fl.eir submission of March 3,1981, page 4, had Applicant then odmitted that the Nuclear Plant Project was dead, it would have been necessary to write down in Applicant's Financial Report the costs incurred as of ti end of 1976 ( over $ 80 million ) and that wculd have had a negative effeci..i the sale of Bonas, thus the credit of Applicant would Lve suffered a tremendous blow.
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intervenors' Brief 24 August,1981 Opinion of the Licensing Board as follows :
" We hold that Applicant's request for on Early Site Review is outside of the purpose and intent of the pertinent regula-tion. We hold there has been a period of suspension and un-certainty since 1975. We hold that the period of suspension is too long to justify a dismissal without prejudice. Accord-ingly this proceeding must be dismissed with prejudice."
The above opinion could have been written for the instant case as for the Fulton case, since there is such a striking similarity between the two. Further, the following excerpt from the Fulton case could also opply to the instant case :
" From our study of the record, we conclude that Applicant's request for an Early Site Review was for the purpose of pre-venting termination of this proceeding, and not for the pur-pose of expediting it. It does not conferm to the substance of the pertinent regulations, and did not stop the running of the period of the Applicant's suspension of prosecution of the proceeding. "
It would be loathe for this Appeal Board or the Commission itself to have the request to review the Fulton case and the Islote case, after providing itself with the indispensable elements of judgment, to uphold both contradictory decisions below, since both cannot possibly be right in view of the similarity of questions of fact and law concurring in both cases.
In the instant case not only were the period of suspension and lack o,f prosecution too long
( from December 3,1975 to September 11, 1980 ), Applicant also willfully got a free ride at l
consumers' expense, withholding key information %m renching the ASLB which otherwise would 1
l have compelled the latter to sua sponte dismiss 'ae application with prejudice. That is so because l
withholding dciive informcJon to the review process in spite of the ASLB order of May 1,1978, is tentamount to
..w...pt of court. Under those circumstances, the ASLB has power to dismiss -
l' the application with prejudice. Carter v. United States, supra ; Fendler v. Westgate-California Corp., supra.; Delta Theatres, Inc. v. Paramount Pictures, Inc., et al., 398 F.2d 323 ( 1968 ),
i in which the U.S. Court of Appeals for the Fifth Circuit stated these most pertinent words :
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i' Intervenors' Brief 24 August,1981
" No plaintiff should be permitted to sleep on his rights and han2ss a defendant with such unreasonable delay. It con not be saidthat the district court abused its discretion in dismissing this complaint with prejudice. In fact, we hold that its questioned action was sound and proper."
Affirmed. On Petition for Rehearing En Banc, denied.
Per Curiam in the some token, considering that the instant case is perhaps the longest proceeding in the history of NRC issuances ( almost 10 years: from November 28,1970 to September 11,1980 )
without Applicant obtaining at least an Early Site Approval for no one's fault but its own, Appli-cant does not deserve to be rewarded the granting of a Dismissal of the Application Without j
Prejudice. Now is the occasion--not on a third try--to stop Applicant from committing more sins, cnd thus making a mockery of the proceeding. The way to put a stop to letting the NRC get mere of the some nonsense is to grant Applicant now a dismissal of the application with prejudice with imposition of penalties and costs to Intervenors.
l i
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intervenors' Brief _24 August,1981 i
e C.- Disregarding The Fact That This Was The Second Time Applicant Withdrew its Application :
The ASLB erred as a matter of fact and low to grant without prejudice Applicant's motion 5/
for Withdrawal of Application 7-based on a narrow and restrictive interpretation of 10 CFR I 2.107, i
in light of a similcr disposition cf Rule 41 of Federal Rules of Civil Procedure ( appealed order,p.2),
6/
disregarding that the facts of the instant case are s_ui generis 7 not specifically provided for in those rules. The ASLB, in the exercise of its discretionary power, was excessively lenient toward Applicant, thus implicitly condoned wrongdoing.
Even the most casual reading of the Statement of Facts of the instant case ( pp. 3-10 )
u 3 one realize that when considering the history o this case and cil that transpired there, r
woo
.ns to be prescribed by no ASLB for a dismissal of the application could not be less than with prejudice. It is not only because of the impropriety of Applicant's actions made evident through the ten year proceeding--as previously discussed in this Brief--that a dismissal with preiudice is warranted, but niso because of Applicant's surreptitious actions during the entire
'~
proceeding period ; by implicitly disobeying an onder from the ASLB ; by withholding information I
from reaching the ASLB and the Farties ; by having t!.e Applicant already undergone a previous withdrawal, the holding below is contrary to the second dismissal doctrine prevalent in the Federal jurisdiction, and to case law on general dismissal decisions.
It is deemed necessary to underline the circumstances of the two dismissals in the instant case which support Ir.rervenors' allegation for a reversal of the holding below :
5.- The motion requests no condition whatsoever. From Applicant's subsequent submissions it is gathered that the bconic withdrawal motion was predicated on Applicant's assumption that it had an absolute right to a voluntary dismissal when in fact and low it has none.
6.- Some concurring circumstances are also found in the Fulton case, supra. The Applicants of both cases were pretending to pursue the application while in reality the intent was totally lack-ing and all they wanted was o go along for' a free ride for as long as they could remain undetect-ed.
Intervenors' Brief 24 August.1981 As we know, the Nuclear Plant for Puerto Rico was originally planned to be sited at Aguirre, Salinas, located at the southern part of the Island ( See Statement of Facts, pp. 3-6, Items 1 to 9 ). On November 28,1970 the Aguirre site application was filed and assigned Docket No. 50-376. When it was known the Aguirre location would be rejected by the then AEC, now NRC, the application for the Aguirre site was withdrawn and subseqdently resub-mitted at the Islote site under the same Docket No. 50-376. To get away with not letting it be known that it was an action of withdrawal and re:ubmittal, Applicant coiled the process of change on " amendment" ( See EXHIBIT "A" ), when in effect it was a withdrawcl from one 7/
site and a resubmittal of the same application, conforming the transfer to another site.'"
t Therefore, according to the exception provided in Role 41 (a)(1) of the Federal Rules of Civil Procedure, not specifically provided in other sections of Rcle 41 ano taking into con-l sideration the aforementioned circumstances of the instant case, perforce is a dismissal of the application with prejudice and a. restitution to be ordered by the ASLAB for costs incurred by the ASLB in processing the application through the imposition of penalties, and costs of intervenors.
7.- It seems that in order to evade payment cf docketing fees for a second time, the withdrawal was called on " amendment", but at no time during the ASLB proceeding, except as stated forth in EXHIBIT "A", was the second application referred to as on amendment to the original one.
Intervenors' Brief 24 August,1981
. CONCLUSION :
1.- The ASLB erred in granting Applicant's Motion for Termination of Proceeding disregarding that there are unresolved disputed issues of material fact as well as questions of law which are crucial in determining whether the dismissal should be with or without prejudice.
Without allowing an opportunity for hearing and/or permitting discovery procedures, the ASLB denied Intervenors its rights to challege Applicant's contentions in a hearing under i 189 (a) of the Atomic Energy Act, 42 USC i 2239 (a),
2.- The Licensing Board erred in Granting Without Prejudica the Withdrawal of Appli-e cation by interpreting Applicant's proven wrongdoings in a most favorable and excusable way, when in fact Applicant ignored to fully comply with the ASLB directives which at least with regard to the expropriations were not fullfilled by Applicant. fhe ASLB disregarded the long history of erratic actions by Appicant, and denied intervenors on opportunity fer hearing to prove their allegations of Applicant's wrongdoing and neglect.
3.- The Licensing Boarderred in granting without prejudice Applicant's Withdrawal of Application, disregarding the fact that thisw,s the second time Applicat withdrew its application, thus, ignoring the second dismissal doctrine prevalent in the Federal jurisdiction and related case law. ( Although the " withdrawal of an application after the issuance of a notice of hearing shall be in such terms as the presiding officer may prescribe ~', scholars of the law have always affirmed that judicial discretion is to be founded in fact and law, not in arbitrarir.ess, convenience, capriciousness, or in other considerations alien to law. )
D
Intervanors' Brief 23 -
24 August,1981 e WHEREFORE, Intervenors pray the Appeal Board to reverse the appealed order to
~
cnable the Licensing Board to review its previous holding so as to impose upon Applicant in review dismissal of the applicatior. with prejudice, the imposition of penalty for costs incurred by NRC in proceeding, and the payment of costs to intervenors, and any other pronunciation l
according to law.
In San Juan, Puerto Rico, this 24th day of August,1981.
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p Gonzalo Fern 6t, Pro Se, and g'
P respresenting Mhmbers of CCNR.
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503 Barb 6 Street i
Santurce, Puerto Rico 00912 Tel:(809) 727-0087 / 727-2287 TO SWORN STATEMENT I, Gonzalo Fern 6s, of legal age, married, of profession architect, retired professor e
of the University of Puerto Rico, resident of San Juan, Puerto Rico and Chairman of the environ-mental organization, Citizens for the Conservation of Natural Resources, Inc., under oath state :
e 1.- That my personal circumstances are as stated above ;
2.- That I have written the foregoing Intervenors' Brief entitled : " Writ of Exceptions e
to ASLB Memorandum and Order of Feb. 18,1981," for the considerations therein excessed ;
e 3.- That all the statements contained in the above writ are to mp best knowledge the j
truth and nothing but the truth.
j'y bW: W+f0[ l Gonzalo Fern 6s AFFIDAVIT NO.
I e GIVEN UNDER MY HAND AND SEAL OF. OFFICE by Gonzalo Fern 6s, of the personal circumstances stated above, personally known to me.
,.qjcn Diag'O x
San Juan, Puerto Rico, this 24thday of Augus
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I intervenors' Brief - 24 August,1981 CERTIFIC ATE OF SERVICE e i HEREBY CERTIFY : That on this some date copy of the foregoing writ entitled :
" Intervencrs' Brief : Writ of Exceptions te ASLB Memorandum and Order of Feb. 18, 1981,"
has been served by First Class / Air Mailupon the following: Samuel J. Chilk,,Esq.,
Secretary of the Co..nission ; Hon. Alan S. Rosenthal, Adm. Judge, Chairman, ASLAB ;
Hon. John H. Buck, Adm. Judge, ASLAB ; Hon. Sheldon J. Wolfe, Adm. Judge, Chairnun, ASLB ; Hon. Richard F. Cole, Adm. Judge, ASLB ; Hon. Gustave A. Linenberger, Adm. Judge, ASLB ; Henry J. McGurren, Esq., Counsel for NRC
-ff ; two copies to Docketing and Service Section ; ( All the above bearing same address os follows: U.S. Nuclear Regulatory Commission, Washington, D.C. 20555 ) to Maurice Axelrod, Esq., Lowenstein, Peis &
Axelrod,1025 Connecticut Avenue, N.W., Wash'ington, D.C. 20036 ; Jose F. Irizarry, Esq.,
General Counsel, PREPA, GPO Box 4267, San Juan, Puerto Rico 00936 ; and Dr. Tom 6s Morales-Cardona, School of Medicine, University of Puerto Rico, GPO Box 5067, Son Juan, Puerto Rico 00936.
in San Juan, Puerto Rico, this 24th day of August,1981.
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t Gonzalo Fer,6s D,. ;
et
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C N 094 C6167 COMMoNWI ALTH OF PuritTO RICO
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Santo $tco Water @csources.Sutlsodly s.,, g_. a...m September 27,1974 caeu AnoRoss PRWRA-AEC-004 SAN JU AN P. H ( tPI'O,
PRWRA U.S. Atomic Energy Commission Directorate of Licensing Washington, D.C. 20545 Att: Director, Directorate of Licensing
Subject:
- 1) Amendment 20 to License Application Dated November 28, 1970 (Aguirre Nuclear Plant, Docket No. 50-376)
- 2) Applicant's Environmental Report, Construction Permit Stage Gentlemen:
Pursuant to the Atomic Energy Act of 1954 as amended, the Commission's rules and regulations thereunder, the Puerto Rico Water Resources Authority (PP.WRA) hereby amends its license application filed on November 28,1970 (Docket No.
50-376) by submitting ten copies of the revised document presenting general information pursuant to 10CFR 50.33 entitled " Application for License", and fifteen copies of the revised Preliminary Safety Analysis Report, supporting this amended application.
This is designated Amendment No. 20 In addition, the PRWRA is supplying fifteen copies of the supporting document Applicant's Environmental Report, Construction Permit Stage, pursuant to 10CFR51 All the above documents are addressed to a relocation of the former Aguirre Nuclear Plant to a site in the north coast of Puerto Rico. This project has been designated North Coast Nuclear Plant Unit One (NORCO-NP-1).
These documents are submitted for acceptance review.
EX HIBIT " A" (1 )
l PRWRA-AEC-004 September 27,1974 f.
k By copy of this letter we e sending one copy of the Preliminary Safety Analysis Report to the Directorate of Regulatory Operations, Region il for their use.
Sincerely youpy]
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Modesto Iriarte, Jr.
Assistant Executive Director Planning and Engineering Enclosures 1
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EX HIBIT " A"( 2)
( Continuation )
Preliminary Otheial Statentent dated September 28,1979 l!nder the provisions of the Acts of Congress nos inforce, the Bonds oCered hereby and the interest thet:on are, in the opinion of Bond Counsel, exemptfron: Fedcral, State, Conononucalth cf Puerto Rico andlocal taxation.
e NEW ISSUV Ratings on the Series F i2y Power Revenue Ronds y%sy Slood)'s:
a a
Standard & Poor %:
irsi S100,000,000
@e_
Puerto Rico Water Resources Authority
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Power Revenue Bonds, Series F
'i ti s ?
rgi Dated Novernber 1,1979 Due July 1, as shown below
- ta M*
iG E The Senes F Power Revenue Bonds are issusble as coupon bonds in the denomination of $5,000 or as registered bonds y { J; without coupons in denominations of 55.000 or any mtegral multiple thereof and are interchangeabic as provided in the 1974 jjj Agreement at Citibank, N.A., New York. New York, trustee. Principal erand semiannual interest (January I and July I.
qj first payment July 1,19SO, representing eight months
- interest, on coupon Series i Power Revenue Bonds will be payable at Yey the principal corporate trust office of yA at the option of the holder. Pnncipal of registered Series F Power
(( g Rtvenue Bonds will be payabie at the pnnerpal office of Citibank. NA, New York, New Yerk, and interest on registered D j Senes F Power Revenue Bonds wdl be e nable by check ma:!ed to the registered owner
$?j The Series F Power Revenue Boads may b. redeemed at the option of ths Authority on or after July 1,1989 in the j j E amounts and upon the terms desenbed herein lie Series F Power Revenue Bonds will be redeemed in an amount equal to
] j f the Amortization Requirements therefor ccmmencing on July 1,1992 at par plus accrued tra rest.
!$d
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jjj The Series F Power Reienue Bonds will be is ued pursuant to the 1974 Agreement and, together with $3EO,863,0ml a
{si Power Reienne Bonds outstanding as of August 31,1979 and such additional Power Resenue Bonds as may be issued, will
!! U be payabic Solely from the net resenues of the Authority's cherrie s3 stem deposited to the credit of the Renewal and I k 3 Replactment Fund under the 1947 Indenture after the required depmits haic heen made to the 1947 Sinking fund and the i.
$1] Ceneral Reserse Fund under the 1947 indenture for the Authorit)'s Electric Rnenue Ilonds. 5N50,585.000 of which was yj2 outstanding a, of August 31,1979.
Qf NeitFer the credit of the Commonwealth of Puerto Rico nor that of any of its political subditisions will be pledged for y[j the pa) ment of the Series F Power Rnenue lionds.
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% Bonds due July 1,1999-Price
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$76,185,000
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y-3y; (plus accrued interest, if any)
I ~ fa is E s Mg The Series F Power Resenue Bonds are offered for del.wr) uhen. as and if issued and Jehsered to the Underuru.s.
E 5 $ subject to the apprmaloflegahry fy Broun. It had, Iny. Machell& Pern. New York, Neu )'ork Bond Counsel. It is errected l
?,3 l that Ihe Seri?s F Pouer Revenue BonJs uilt be Jehwredin Jejmitivejhrm in New h k, New York, on or about November l
h i ; 1979.
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jy Merrill Lynch White Weld Capital Markets Group jjy Merrill Lynch, Pierce, Fenner & Srnith incorporatal Mi Qt The First Boston Corporation Blyth Eastman Dillon & Co.
hpg Incorporated ID Kidder, Peabody UCo.
Bache Halsey Stuart Shields 3g{
Incorporated Incorporated l
Banco Popular de Puerto Rico Salomon Brothers Weeden & Co.
Div. of Moseley, liallgarten, Estabrook & Weeden Inc.
i EXHIBIT "B" (1 )
The date of this Otticial Statement is October
,1979.
-4
'.1
The capitalimprovement program for the six years ending June 30,1985 includes $153.2 million for production plat expansion and improvement projects. Of this amount, $139.2 million represents investment in the restoration of generating plants to higher levels of reliability and efficiency, which will contribute to the general energy conservation effort of Federal and state governments, and 59.5 million represents expenditures for environmental projects.
Projected Load Growth The Authority expects that peak load will grow at a compound annual rate of 3.5% from fiscal 1979 through fiscal 1990. This projection is based in part on estimated socio-economic indicators for Puerto Rico prepared by the Planning Board of Puerto Rico, including government and personal consumption expenditures, gross product, population, exports and personal disposable income It takes into consid-eration the current reduction in industrial demand in Puerto Rico (due mainly to the closing of PPG Industries, Inc.), Federal and local energy conservation measures and expected reductions in the
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previously projected growth rates of the U.S. mainland and Puerto Rico economies.
The following table summarizes the Authority's peak load and required and actual dependab!c generating capacity projections thraugh fiscal 1990.
Actual Capacity Years Fndmg Peak Required Required June 30 load (l)
Reserse( 2 ) Ca pacity Esisting Additional (3)
Tong (in %1W) 1980..
2,397 1,845 3,942 4,207 4,207 1981.
2,208 1,789 3,997 4,207 4,207 19S2..
2,287 1,732 4,019 4,207 4,207 1983..
2,374 1,682 4,056 4,207 4,207 r
1984..
2,465 1,657 4,122 4,207 4,207 1985..
2,556 1,632 4,188 4,207 4,207 1986..
2,647 1,694 4,341 4,207 300 4,507 1987..
2,737 1,505 4,542 4,507 300 4,807 1988..
2,827 1,855 4,682 4,807 4,S07 1989..
2,916 1,903 4,819 4,807 300 5,107 1990..
3,006 1,992 4,9 %
5,107 5,107 e,me (1) Based on projected load factors ranging from 75.7% to 75.9Pr, average load is projected to increase from 1,587 MW in tiscal 1980 to 2.281 MW in riscal 1990.
(2) Represents required reserve margins ranging from 88'E in fiscal 19b0 to 66% in fiscal 1990. See " Generating Facilities" under The System.
(3) See " Additional Generating Facilities" below.
Additional Generating Facilities Based on projected load growth in Puerto Rico, the Authority believes that new generating facilitier will be required to provide additional capacity of up to 900 MW over approximately the next ten years.
The Authority believes that, of such additional capacity 300 MW will be required by fiscal 1986,300 M W by fiscal 1987 and 300 MW by fiscal 1989. Minimum lead time required for construction of new generating facilities is six to seven years and the Authority is reviewing various alternatives which will provide the additional capacity, including the alternative of coal and oil dual-fired units. The Authority expects that the total construction costs associated with the additional generating facilities may approxi-mate $1 billion, and it is considerin; various alternative methods of financing and sources of funds. Final decisions have not been made with respect to the construction of the additional generating facilities or the financing thereof. The Authority expects that such decisions will be made during this fiscal year.
21 EXHIBIT "B" ( 2 )
-.l isi Intervenors' Note : Final Decision to build the 3-300 megawatt power plants was taken during Fiscal Year 1979.
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