ML20031D327
| ML20031D327 | |
| Person / Time | |
|---|---|
| Site: | 05000376 |
| Issue date: | 10/08/1981 |
| From: | Gutierrez J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 8110130251 | |
| Download: ML20031D327 (31) | |
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UNITED STATES OF AMERICA NUREAR REGULATORY COMMISSION
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BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of PUERTO RICO ELECTRIC POWER
)
Docket No. 50-376 AUTHORITY
)
)
I, (North Coast Nuclear Power Plant,
)
Unit 1)
)
NRC STAFF RESPONSE IN OPPOSITION TO THE INTERVEN0RS' EXCEPTIONS TO THE ASLB ORDER OF FEBRUARY 18, 1981 cnJ,.g v\\
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g d 5-Jay M. Gutierrez Counsel for NRC Staff i
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i October 8, 1981 i
DESIGNATED RIGINAL Certified By_ / '[h N
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-i-TABLE OF CONTENTS page 1
I.
INTRODUCT!04 2
II. STATEMENT OF ISSUES.....................
e 3
III. STATEMENT OF THE CASE....................
12 IV. ARGUMENT...........................
A.
THE LICENSING BOARD CORRECTLY APPLIED THE PROPER LEGAL STANDARD IN DETERMINING TO DISMISS THE APPLI-12 CATION, WITHOUT PREJUDICE B.
THE LICENSING BOARD PROPER'_i EXERCISED ITS DISCRETION IN DENYING INTERVEN0RS' V] TION FOR A HEARING ON WHETHER THE APPLICATION SHOULD BE DISMISSED, WITHOUT PREJUDICE..
17 C.
RULE 41(a)(1) DOES NOT GOVERN THIS PROCEEDING 22 23 i
V.
CONCLUSION..........................
I i
1 h
i I
- ii -
TABLE OF CITATIO,is page COURT CASES:
Armored Carrier Corp. v. U.S., 260 F. Supp. 612, 615 22 (E.D.N.Y.1966), affirmed, 386 U.S. 778 (1967)........
Cone v. West Virginia Pulp and Paper, 330 U.S. 212 (1947) 14 Connecticut Light and Power to, v. Federal Power Commission, 20 557 F.2d 349, 353 (2nd Cir.1977)
Cosmopolitan Broadcasting Co. v. Federal Communications Commission, 581 F.2d 917, 928 (D.C. Cic. 1978)........
22 Durham v. Florida East Coast Railroad, 385 F.2d 366, 368-9 14 (5th Cir. 1967)
F.C.C. v. W.J.R., The Goodwill Station, Inc., 337 U.S. 265, 19 274-7 (1949).........................
Federal Power Commission v. Texaco, 337 U.S. 33, 39-45 (1969) 21 Federal Trade Commission v. Raladam, 316 U.S.149, 20 15 0- 1 ( 194 2 ).........................
Holiday Queen Land Corp. v. Baker, 489 F.2d 1031,1032 13 (5th Cir. 1974)
Jones v. Securities and Exchange Commission, 298 U.S.1, 19, 23 (1936) 13,14,16,17, 20 Lawlor v. National Screen Service, 349 U.S. 322, 326-7 (1955) 20 LeCompte v. Mr. Chips, Inc., 528 F.2d 601, 604 (5th Cir.1976).
14 Morrow v. Topping, 437 F.2d 1155,1156 (9th Cir.1971).....
18 Rocky Mountain Power Co. v. Federal Power Commission, 409 F.2d 1122, 1129 (D.C. Ci r. 1969)...............
21,22
- 111
_ TABLE OF CITATIONS (Cont'd) gege United States v. Storer Broadcasting Co., 351 U.S.192, 21 205 (1956)..........................
United States Fidelity and Guarantee Company v. Lawrenson, 334 F.2d 464, 467 (4th Cir.1964) cert denied, 379 U.S.
19 869 (1964)..........................
0 Wilkins v. Rogers, 581 F.2d 399, 405 (4th Cir.1978)......
19 Wilwording v. Swenson, 502 F.2d 894, 848 (8th Cir. 1974)....
20 NRC CASES:
Alabama Power Company _ (Joseph M. Farley Nuclear Plant, Units 1 and 2), ALAB-182, 7 AEC 210, 213-15 (1974), aff'd and remanded on other grour.ds, CLI-741?, 7 AEC 203 (1974)....
20 Boston Edison Co. (Pilgrim Nuclear Generating Station, 13-15,17, Units e and 3), LBP-74-62, 8 AEC 324 (1974) 19,20,22 Consolidat"d Edison Co. of N.Y. (Indian Point, Units 1, 2, and 3), ALAB-319, 3 NRC 188,189-90 (1976)......,
21 Consumers Power Co. (Quanitassee Plant Units 1 and 2),
i CLI-74-29, 8 AEC 10 (1974); CLI-74-27, 8 AEC 627 (1974) 12 Gulf States Utilities Company (River Bend Station, Units 1 and 2), ALAB-444, 6 NRC 760, 774-5 (1977) 21 Philadelphia Electric Co. (Fulton Generating Station, Units 1
-, 13 NRC
, Decision and Order (Dismissing and 2), LBP Proceeding with Trejudice) (Fet', 27,1981) (Appeal Pending) 12,16 Potomac Edison Electric Company (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-277,1 NRC 539 4
( 1 97 5 )............................
Puerto Rico Electric Power Authority (North Coast Nuclear Plent, Unit i), LBP-80-15,11 NRC 765 (1980).........
6
d
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TABLE OF CITATIONS (Cont'd) page Puerto Rico Electric Power Authority (North Coast Nuclear Plant, Unit 1), ALAB-605,12 NRC 153, ~154 (1980).......
6,7,12
' Puerto Rico Electric Power Authori_tr (North Coast Nuclear Plant, Unit 1), ALAB-648, 14 NRC (July 2, 1981) 11 STATUTES:
21 42 U.S.C. 9 2239........................
REGULATIONS:
10 C. F. R. 5 2.104 ( b )......................
21 10 C. F. R. 5 2.107 ( a )......................
10,12,13 18,19 10 C.F.R. 5 2.730.......................
21 10 C.F.R. ", 2.749.......................
8,11 10 C.F.R. 5 2.762.......................
8 10 C.F.R. 5 2.786.......................
21 10 C.F.R. 6 50.35.......................
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MISCELLANE0US:
3 40 Fed. Reg. 6834, 6835....................
13,22,23 Fed. R. of Civ.
D., Rule 41 18 Fed. R. of Civ.
P., Rule 78 2 Barron and Holtzoff, Federal Practice and Procedure,
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14 6 912 (Wri ght 's Ed. ).....................
d
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d UNITED STATES OF AMERICA NUCLEAR REGULATORY C0" MISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
)
)
PUERTO RICO ELECTRIC POWER
)
Docket No. 50-376 AUTHORITY
)
)
(North Coast Nuclear Power Plant,
)
Unit 1)
)
NRC STAFF RESPONSE IN OPPOSITION TO THE INTERVEHORS' EXCEPTIONS TO THE ASLB ORDER OF FEBRUARY 18, 1981 1.
INTRCOUCTION This matter is before this P
- rrd as an appeal from a Licensing Board Order of February 18, 1981, wherein the Puerto Rico Electric Power Authority (hereinafter referred to as the Applicant or the Utility) was granted its motion for the termination of proceedings and permission to withdraw its application for a construction permit to build the North Coast Nuclear Plant, without prejudice.3/ Intervenor Gonzalo Fernos, for himself and on behalf of Citizens for the Conservation of Natural Resources, Inc.
(hereinafter jointly referr d to as Intervenors or CCNR) argues on appeal that the application should be dismissed, with prejudice. They filed the following three exceptions to that Licensing Board Order:
1/
See, Memorandum and Order (Granting Applicant's Motion for Termination of Proceeding, and Granting Without Prejudice the Withdrawal of Application), February 18, 1981.
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l l
1 I r A.
Whether to terminate the proceeding while there is still pending a controversy is violative of due process.
l.
B.
Whether it was a sound discretionary judgment to grant without prejudice the withdrawal of the application, while disregarding the actions and situatior; of App'Mcant throughout the six year [s] proceeding ind the import of such circumstances to the public interest.
C.
Whether disregarding the fact that this was the second time Applicant withdrew its appli-cation was a sound discretionary judgment in accord with applicable legal doctrines and case law when granting the withdrawal of the application without prejudice.
See, Notice of Appeal and Request for an Extension of Time to File Brief Thereof, May 12, 1981, p. 1-2.
The Staff submits the Licensing Board did not err in any respect in its February 18, 1981 Memorandum and Order.
In its order, the Board employed the correct legal standards in dismissing the application, without prejudice, and properly applied them to the facts. Each of the three exceptions assigned as error by CCNR are without legal support and will be addressed by the Staff. However, since the linchpin of the Intervenors' appeal is the propriety of the Applicant's past conduct, a relatively detailed outline of the procedural his*.ory in this case will
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precede a discussion of the applicable legal principles.
II.
STATEMENT OF ISSUES The Staff respectfully submits that the following three issues are presented by the Intervenors' appeal:
A.
Whether the Licensing Board correctly applied the proper l
legal standard in determining to dismiss the application, without prejudice?
l l
3 B.
Whether the Licensing Board properly exercised its discretion in denying Intervenors' totion f or an evidentiary hearing on whether the application should be dismissed, without prejudice?
C.
Whether Rule 41 of the Federal Rules of Civil Procedure is germane to this proceeding?
III. STATEMENT OF THE CASE On November 28, 1970, the Applicant filed for a construction permit to build the subject facility at Aguirre, Puerto Rico. Due to geologic problems at that site, the Applicant submitted an amendment to its application changing the site to Islote, Puerto Rico.2/ Notice of receipt of the application was published in the Federal Register,3/ and subsequently the Intervenors were admitted as parties to the proceeding. On December 5, 1975, the Applicant's Executive Director notified the NRC that due to economic considerations and a decline in the demand for energy, it had decided to postpone indefinitely the North Coast Nuclear Project.S/
Applicant further stated its belief that nuclear power remains a viable 2/
See, Amendment twenty (20) to the construction permit application, dated September 27, 1974, and Revision, dated January 27, 1975.
3/
40 Fed. Reg. 6834, 6835 (February 14,1975).
4/
See, letter from William Miranda Marine to Bernard Rusche, Director, Office of Nuclear Reactor Regulation, dated December 3, 1975. At approximately the same time, by separate letter, counsel for the Applicant notified the Licensing Board of the utility's decision to postpone the North Coast facility indefinitely.
See, letter from M. Axelrad to Board dated December 5, 1975.
Intervenors were sent copies of these letters.
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_ _. ~.
. eventual source of power in Puerto Rico,'end asked that the proceeding be continued to determine site suitability and certain environmental issues.N ~
On July 2,1976, the Utility filed a formal motion requesting a hearing on site suitability issues and the subsequent issuance of a partial initial decision on those issues.N The Intervenors opposed this Motion. However, the Board, relying upon Douglas Point, supra, granted theApplicants' request.N
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In early 1977, the Applicant notified the Board by letter of the intentions of newly elected government officials to review the generating capacity of Puerto Rico and therefore suggested that the previously re-quested hearing on site suitability be deferred until the review is completed.N On August 31, 1977, the Applicant again advised the Board it was continuing its review of the timing of developing Puerto Rico's generating capacity.U 5)
Letter from M. Axelrad to Board, dated December 5,1975. This sug-gestion was consistent with the then recent decision of Potomac Edison Electric Company (Douglas Point Huclear Generating Station, Units 1 and 2), ALAB-277, 1 NRC 539 (1975) wherein the Appeal Board ruled that notwithstanding the fact that an Applicant postpones a facility for several years it is proper to have an evidentiary hearing on certain issues relevant to site suitability and environmental concerns.
6)
See, Motion to Proceed with Hearing on Site Related Issues and to
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Issue Pa> +ial Initial Decision Thereon, dated July 2,1976.
7/
See, Order concerning " Motion Requesting Suspension of Hearing Activities," dated October 20, 1976.
8f Letter from M. Axelrad to the Board, dated February 16, 1977.
In that letter, it was estimated such review would take approximately six months.
Apparently, the Applicant is a public authority and its management and policies are subject to government influence.
=
y Letter from M. Axelrad to the Board, dated August 31, 1977. At that time, it was estimated in the letter that such review would be com-pleted by the end of 1977.
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jyid On February 27, 1978, the Intervenors moved to have the utility's application for a construction permit dismissed, on the ground that the utility had no firm plans for constructing the North Coast Nuclear Facility.E This motion was denied by the Licensing Board, which stated:
"[t]here is no requirement in any Commission regulation or under-lying statute that requires an Applicant to proceed with the processing of its application in accordance with any set time scale."E
- However, the Applicant wcs admonished for its failure to keep the Board advised of developments in Puerto Rico affecting i h application and directed to submit periodic status reports.b In response to the Applicant's status report of December 28, 1979, adviMng the Board it will be one and probably several years before a N See, Motion to Dismiss or Grant Alternative Relief, dated February 27, 1978.
il
_1_1/ See, Order of the Board concerning Intervenors' Motion to Dismiss or 1
to Grant Alternative Relief, dated May 1,1978.
M I_d, p. 2.
The Applicant subsequently filed periodic status reports with the Licensing Board.
Principal among these reports were filings of October 16,1978 (wherein the Board is informed the Applicant has contracted with the National Academy of Sciences to perform an overall evaluation of the energy situation in Puerto Rico and states that this study is to be completed in 1979), December 29, 1978 (wherein the Board is informed that the Applicant has terminated its contract with Westinghouse) and December 28,1979 (wherein the Board was informed that following the study by the National Academy of Sciences, the Applicant has decided that the next generating system to be addeo to its capacity will be a 300 megawatt coal burning unit and that as a result of this decision consideration of nuclear capacity will be deferred for at least one year and, in all likelihood, for a couple of years..)
-R.
determination is made with respect to the Applicant's nuclear capacity, the Intervenors filed on April 30, 1980, a " Petition Requesting Evidentiary Hearings To Request Applicant To Show Cause Why Their Application Should Not Be Dismissed For Lack Of Intention To Build."J3/ On May 29, 1980, the Licensing Board denied the motion on the ground that it lacked the authority to issue an order involuntarily dismissing a construction permit on the grounds that an Applicant had abandoned its plans to build a facili ty.lS/ The Appeal Board, exercising its sua sponte review power, reversed, stating:
It is true, of course, that neither the Atomic Energy Act nor the Rules of Practice specifically establish a procedure for dismissing (or denying) a construction permit application on the around that the applicant has clearly abandoned its purpose to build the facility in question.
It scarcely per-force follows, however, that a licensing board is required to retain on its docket in perpetuity an application which has become entirely academic.
In this connection, we find nothing in s 189 of the Act or 5 2.104 of the Rules of Practice which might support such a curious result.
Puerto Rico Electric Power Authority (North Coast Nuclear Plant, Unit 1),
ALAB-605, 12 NRC 153, 154 (1980).
13/ leis petition requested the presiding Licensing Board to:
1.
Conduct a show cause hearing in Puerto Rico not later than July 1,1980, regarding the Applicant's intention to pursue the Application; 2.
Issue an Order dismissing with prejudice the above application; 3.
Impose on the Applicant costs and damages in the sum of $10,000 on behalf of the Intervenors.
14/ See, Puerto Rico Electric Power Authorily, (North Coast Nuclear Plant,
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GnTt 1), LBP-80-15, 11 NRC 765 (1980.
The Appeal Board then remanded this matter to the Licensing Board for a determinationofwhethertheApplicanthadabandoneditsintentionof building the North Coast Nuclear Plant.
North Coast, supra p. 155.
Pursuant to the remand, the Licensing Board issued an Order on August 19, 1980, stating its intention to hold an evidentiary hearing on the issue of whether the Applicant had abandoned its plans to build the North Coast facility.15/
On September 11, 1980, before a hearing on the remanded issue was held, the Applicant withdrew its application for a construction permit for the North Coast Huclear Plant and moved for the termination of the proceedings.E On September 18, 1980, CCNR filed with the Comission a " Motion For Direct Certification To Request Application Be Dismissed With Prejudice."b CCNR premised its request on the charge that the Applicant had abandoned its intent to build the No,'th Coast facility as early n August 5, 1976, without advising the Board or NRC Staff. E 15/ See Order, August 19, 1980.
,1_6/ See, Motion for Termination of Proceeding and Withdrawal of Appli-6 cation, both dated September 11, 1980.
1)) See, Motion For Direct Certification To Request Application Be Dismissed With Prejudice and Motion For A Stay Of Proceedings, both dated September 18, 1980. The relief sought was tne dismissal of t
the application with prejudice or a hearing to determine if such a dismissal was proper under the circumstances. The request for a stay was granted by an Order of the Licensing Board dated October 16, 1980.
18/ SEe also, Petition Requesting Evidentiary Hearings To Request Applicant To Show Cause Why Their Application Should Not Be Dismissed For Lack Of Intention To Build, April 30, 1980.
Tiie Staff did not oppose the Applicant's motion to withdraw its
[
application and to terminate the instant proceedings E and accordingly.
opposed CCNR's motion for directed certification on both procedural and substantive grounds. b The Commission declined to consider CCNR's motion for directed certification on October 17, 1980, and instead re-ferred the Intervenors' motion to the Licensing Board in the first in-stance for a determination of whether in granting Applicant's motion to dismiss it should be with prejudice. b Pursuant to the Commission's instructions, the Licensing Board by an Order of November 19, 1980, gave the Intervenors until Cacember 4, 1980, to respond to the Applicant's and Staff's arguments relative to why the North Coast construction permit application should be dismissed without prejudice.E On December 3, 1980, CCNR filed its reply, arguing the 19/ See, NRC Staff's Answer To Motion Of Applicant To Withdraw Their Application, dated September 19, 1980.
_2_0/ See, NRC Staff Response To Intervenors' Motion For Directed 0
Certification, dated October 8,1980.
21/ The Comission made clear in its Order that the Intervenors could
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1 appeal any adverse decision by virtue of 10 C.F.R. 9 2.762 and 9 2.786.
2_2/ The positions of the Applicant and Staff on the question of whether the construction permit application should be dismissed with pre-judice had previously been set forth in their briefs in opposition to Intervenors' Petition for Direct Certification.
See, Authority's Response to Motion for Direct Certification, dated October 3,1980; NRC Staff Response to Intervenors' Motion for Directed Certifica-tion, dated October 8, 1980.
Applicant had b?en guilty of " hidden, deceitful action" and of " false pretenses" in that it failed to inform, suggest, or in any way hint to the parties and to the Board that on August 5,1976, it nad initiated a reversal action in the Superior Court of Expropriation of Puerto Rico, in which it asked that the land, previously acquired on its behalf by the government for the Islote site, be returned to the original owners.E The Applicant's reply pointed out that all of the expropriation proceedings were part of the public record in the Puerto Rican Courts, that rnntemporaneous with the expropriation actions the local newspapers covered the Applicart's actions, and that it never represented to the Board or the NRC Staff that it owned the entire Islote site. The Applicant further pointed out that neither the Commission's regulations nor case law require that it own the site prior to an early site suitability review.E The Staff concluded in its December 31, 1980, filing that the public interest would best be served by permitting the Applicant to withdraw its application without prejudice, thereby keeping open to the utility the nuclear option if conditions changed in Puerto Rico.
In addition, the Staff submitted that the Intervenor had not set forth any factual allegation sufficient to warrant a hearing on the issue of whether the construction permit application should be dismissed with prejudice.b
& By a Licensing Board Order of December 16, 1980, the Staff and Applicant were given an opportunity to respond to CCNR's specific charges.
B See, Authority's Reply To Intervenors' Reply, dated December 31, 1980, pp. 5-8.
N S e, NRC Staff Memorandum In Response To Atomic Safety And Licensing lBoard Order of December 16, 1980, dated December 31, 1980.
In its Order of February 18, 1981, t.he Licensing Board dismissed the procee' ding without prejudice.E / It determined (1) that the Intervenors would not suffer any prejudice other than the prospect of a second lawsuit if the Applicant were permi ted to withdraw its application without pre-t judice and (2) that the public would be harmed by a dismissal with prejudice since such a condition would foreclose to the Applicant and public, the nuclear option should conditions change warranting additional generating
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capacity.E On May 12, 1981, acting under an extension of time granted by the Appeal Board,E l the Intervenor filed a Notice of Appeal from the Licensing Board's Order of February 18, 1981, assigning the three points of error quoted previously.2_9f 26/ See, Memorandum and Order (Granting Applicant's Motion For Termination Of Proceeding, and Granting Without Prejudice the Withdrawal of Application) February 18, 1981, p. 2.
The Licensing Board cited 10 C.F.R. 9 2.107 as authority for the granting of a withdrawal of an application on such terms as the presiding officer may prescribe.
The Board noted the only condition the Intervenors sought to attach to dismissal of the North Coast application was for it to be dismissed with prejudice.
_2J7/,I_d_., p. 4-6.
Subsequently, the Intervenors petitioned for and were denied both a motion for reconsideration of the Board's February 18, 1981, Order and a petition to stay that decision.
See, Petition for Reconsideration, dated March 3, 1981, and Order (denying Intervenors' petition for reconsideration in application for a stay) dated, March 26, 1981.
28/ The Intervenors file.d an " 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.
M/ Sy, supra, p. 1-2.
. Accompanying this notice of appeal was a request that the running of the time period prescribed by 10 C.F.R. 5 2.762(a), h,c the filing of Intervenors' supporting brief, be tolled pending the outcome of a govern-mental investigation into Appitcant's operation currently ur.derway in Puerto Rico. The Appeal Board denita this iequest noting that the appeal from the Licensing Board's Order must be founded on the record before that i
Board.E On June 13, 1981, CCNR filed a " Motion To File Sworn Statements From
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Owner Residence Of The Islote Nuclear Plant About Damages Inflicted Upon Them By Applicent" in order to supplemerit the record with certain documents.b On July 2, 1981, tne Appeal Board denied the Intervenors' motion stating that through the sworn statements offered, CCNR is trying to interject an essentially new issue at the appellate level.E This Board reasoned that simple equity precludes reopening the record in aid of Intervenors' apparent desire to attack the decision below on fresh ground.E 30/ See, Order, dated June 1, 1981, p. 2.
3_1/ This motion was opposed by the Staff on the ground that the Inter-venors were attempting to have the Appeal Board consider an issue raised for the first time on appeal and that Intervenvs failed to meet tne criteria established by the Appeal Board for the receipt of such evidence.
See, kRC Staff Response To Intervenors' Motion Dated June D.1981, filed June 26, 1981.
32/ See, Puerto Rico Electric Power Authority (North Coast Nuclear Plant, 2
Unit 1), ALAB-648, 14 NRC
, p. 6 of the slip opinion (July 2, 1981).
By a Memorandum dated August 20, 1981, the Commissivi advised -
all parties that it had declined any review of ALAB-648.
3.,3/
_I,d.. at p. 8.
A petition for reconsideration and request for an 3
extension of time to file a brief was filed by the Intervenor on July 21, 1981.
In a Memorandum and Orcer dated July 24, 1981, the Appeal Board denied the Intervenors' motion for reconsideration and granted its extension of time to file its brief until August 17, 1981.
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On Aur.st 3, 1981, CCNR filed a motion to consolidate the instant proceeding with that of Philadelphia Electric Company (Fulton Generating Station, Units 1 and 2), Docket Nos. 50-463 and 50-464, on the basis that the two cases present s;milar issues of law and fact. E This latest of Intervenors' motions was denied by the Appeal Board in an Order of August 8, 1981, wherein the Board also granted a limited extension permitting the intervenors to file its brief in the current appeal by August 24, 1981. That brief was subseopently filed and will be addressed in the Discussion section which follows.
IV. ARGUMENT A.
THE LICENSING BOARD CORRECTLY APPLIED THE PROPER LEGAL STANDARD IN DETERMINING TO DISMISS THE APPLICATION, WITHOUT PREJUDICE Licensing Boards ay permit an applicant to withdraw an application by authority of 10 C.F.R. 9 2.107(a). That regulation provides as follows:
The Commission may permit an applicant to withdraw an application prior to the issuance of a notice of hearin? on such terms and conditions as it may prescribe, or may, on receiving a request for with-drawal of an application, deny the applicetion or dismiss it with prejudice. Withdrawal of an appli-cation after the issuance of a notice of hearing shall be on such terms as the presiding officer may prescribe.35f 34/ See, Motion for Cordolidation and Request for an Extension of Time to File Brief, dated August 3,1981. The Fulton case is discussed infra.
3_S/ This Board has previously ruled in the instant proceeding that a Licensing Board has inherent authority to disniss an application pending before it if it has been mooted by supervening developments.
Puerto Rico Electric Power Authority (North Coast Nuclear F vat, Unit 1), ALAB-605, 12 NRC 153, 154 (1980). The Commission in pre-vious decisions has evidenced a willingness to entertain requests by parties for an order to compel an Applicant to withdraw an application on the ground that the utility no longer intended to construct the f acili ty. See Consumers Power Company (Quanicassee Plant, Units 1 and 2), CLI-74-29, 8 AEC 10 (1974); CLI-74-37, 8 AEC 627 (1974).
10 C.F.R. 9 2.107(a) does not set forth any legal standard a Licensing Board must apply in determining what terms and conditions should attach to the withdrawal of an application.
The Intervenors would have this Board adopt an amorphous standard which focuses on the past acts of the Applicant. However, it has been held previously in NRC proceedings that an application should be permitted to be withdrawn without prejudice unless such an action would result in prejudice to the public uterest or sub-stantial hann to a party in the [.roceeding.
Boston Edison Co. (Pilgrim Nuclear Generating Station, Units 2 and 3), LBP-74-62, 8 AEC 324, 127 (1974).
This rule, favoring the dismissal of an application withoist prejudice, is consistent with and founded upon the rule governing dismitsal of a suitinFederalCourts.E The landmark administN tive law case on this question is Jones v. Securities and Exchange Commission, 298 U.S.1 (1936),
wherein the Supreme Court, after tracing the historical development of a party's right to a voluntary dismissal, stated, with respect to dismissing a cause of action, without prejudice:
The general rule is settled for the federal tri-bunals that a plaintiff possesses the unqualified right to dismiss his complaint. at law or his bill 3_6] The rule is now embodied in Rule 41(a), FEU. R. CIV. P.; see, Holiday Queen Land Corporation v. Baker, 489 F.2d 1021,1032 (5th Cir.1974) wherein the circuit court held that a trial court exercising its discretion in considering a motion for voluntary dismissal, without prejudice, must follow the traditional principle that dismissal without prejudice should be allowed unless the opposing oarty will suffer some plain prejudice othe-than the mere prospect of a second lawsuit.
in equity unless some plain legal prejudice will resulttothedefendantotherthanthemereproget of a second litigation upon the subject matter.
In Jones, the Supreme Court reversed a decision by the Securities and Exchange Commission (which had refused to permit the withdrawal of an application to register securities), on the grounds tNat a voluntary dismissal without prejudice was to be permitted absent a showing of pre-judice to the public interest or to a party in tht. proceeding other than Se (rospect of relitigation.28/
The Jones standard was adopted and applied in the context of nuclear regulation in, Boston Edison Company (Pilgrim Nuclear Generating Station, Units 2 and 3), LBP-74-62, 8 AEC 324, 327 (1974).
In Pilgrim, as in the
_37f 298 U.S. at 19. Cf. Cone v. West Virginia Pulp and Paper Company, 330 U.S. 212, 21771947) wherein the Court stated that a Plaintiff possesses an unqualified right to a voluntary dismissal without pre-judice even after trial and before judgment, absent prejudice to the opposing party, other than the mere prospect of a second litigation.
Indeed, it has been held an abuse of discretion to require that a voluntary dismissal of a suit be with prejudice, when the Defendant's only hana would be the taere prospect of 9 second lawsuit.
Durham v.
Florida East Coast Railroad, 385 F.2d 366, 368, 369 (5th Cir.1967),
quoting, 2 Barron and Holtzoff, Federal Practice and Procedure, 9 912 (Wright's Ed.).
Accord, LeCompte v. Mr. Chip, Inc.
528 F.2d 601, 604 (5th Cir.1976) wherein it was stated a dismissal without prejudice should be granted absent some le. gal harm to the Defendant.
28/ The Supreme Court further noted that no other perse,a was affected by the withdrawal of the application in Jones; The conclusion seems inevitable that an abandonment of the application was of no concern to anyone except the registrant. The possibility of any other interest in the matter is so shadowy, in-definite, and equivocal that it must be put out of consideration as altogether unreal. Under these considerations, the right of the registrant to withdraw his application would seem to be as absolute as the right of any person to withdraw an ungranted applicatton for any any other form of privilege in respect to which he is at the time alone concerned. 298 U.S., at 23.
i l
instant case, an Applicant filed a motion to witndraw its application and set forth as grounds for that application reduced load forecasts and financial considerations. M.at324.
In that case, as in the instant Cdse, an InterVenor, Massachusetts Wildlife Federation, asserted that the Applicant's motion to withdraw its application should be granted with prejudice, with a condition that the Applicant may not refile for a construction pennit within a prescribed period of time. M.at326.
Intervenor had claimed it would be an undue hardship if it was forced to relitigate the application in the near future. The Licensing Board held that the public interest, r.at convenience to an Intervenor, is of paramount importance and must be protected in deciding what conditions should attach to the withdrawal of an application. M. at 327.
In granting the Applicant's motion to withdraw, the Licensing Board unequivocally rejected the Intervenor's suggestion, stating:
Moreover, it seems to the Board that it would be infeasible for this Board uen to attempt to impose a condition on a public utility that it be pro-hibited from filing an application for the con-struction of a power plant before a certain date, such as is apparently requested by the Wildlife Federation and now the Commonweal?.h of Masschusetts.
It must be presumed that it is the public's need fcr power which is one of the underlying reasons for construction of a power plant. This statutory principle "public convenience and necessity" is the basis which underlies the authorization granted by other concerned Federal and state regulatory agencies before are construction can be commenced by the utility, and requires a finding of public need.
If such finding is made, based upon a proper showing by the utility, it would be unreasonable in the l
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extreme to deprive the public of a needed utility servicebecauseofallegeg"inconvenienceorburden" to potential intervenors.
The Intervenors would have this Board focus upon the Applicant's past conduct and alleged hardships to the Intervenors in defending this case rather than to look to where the broader public interest lies and the factors discussed in Pilgrim and Jones, supra.
The Intervenors would have this Board follow the approach taken in Phildelphia Electric Company (Fultor Generating Station, Units 1 an 2), LBP, 13 NRC
, Decision and Order (Dismissing Proceeding with Prejudice) (Feb. 27, 1981) (Appeal Pending).
There the Licensing Board sta*ad:
We hold that Applicant's request for an Early Site Review is outside the purpose and intent of the pt.+ tinent regula-tions....
[T]here has been a period of suspension and uncertainty since 1975....
[T]he period of suspension is too long to justify a dismissal without prejudice.
Howhere in the Fulton opinion were the relev'1t legal authorities discussed, including the two factors set forth in Pilgrim.
Instead, the Licensing Board relied upon its perception of how the Applicant abused the licensing process to justify its dismissal, with prejudice.
No guidance is given in Fulton_
~
with respect to the standard or factors a Board should apply in deciding to dismiss an application with prejudice. N In accord with the authorities set forth above, the Licensing Board in the instant case properly weighed and applied the standard in determining 3_,9/ 8 AEC at 327.
9 This case is presently under appee.1 and the Board is referred to 40/
the Staff's brief in that case for a more detailed discussion of just why the Fulton Licensing Board's decision should be reversed and those proceedings dismissed without prejudice. See, NRC Staff's Brief in Support of Exceptions of Philadelphia Electric Compaqy to ASLB Decision and Order Dated February 27, 1981, filed June 11, 1981.
whether an application should be dismissed with prejudice.
In its February 18, 1981 Order, the Licensing Board noted that the Intervenors asserted no cogniz-able harm which would result if the application in question was dismissed
/ The allegation in the Intervenors' brief concerning without prejudice.
possible harm to land owners from a second condemnation, corruption in applicant's management and possible sabotage should the plant be licensed, do not show that the standards applied by the Licensing Board were in error. These allegations, as we later detail, are matters which might be relevant to a determination of whether the plant should be licensed. They are not relevant to the issue of whether the applicant should be permitted to withdraw its application without prejudice.
Indeed, nowhere in the Intervenors' brief are the factors which are set forth in Pilgrim, supra, and Jones, supra, directly addressed. The intervenors have failed to sustain their burden in explaining how they will be substantially harmed if the Licensing Board's decision is left undisturbed.
Similarly, they have failed to set forth the exact nature of the harm the public would suffer as a result of dismissing the Applicant's project, without prejudice.
THE LICENSING BOARD PROPERLY EXERCISED ITS DISCRETION IN B.
DENYING INTERVENORS' MOTION FOR A HEARING ON WHETHER THE APPLICATION S:iOULD BE DISMISSED, WITHOUT PREJUDICE Intervenors' first two assignments of error essentially assert that the Licensing Board erred as a matter of law in terminating the proceeding l
41/ Memorandum and Order (Granting Applicant's Motion For Termination of Proceeding, and Granting Without Prejudice the Withdrawal of Application), February 18, 1981, p. 2.
42/ Intervenors' Brif.f: Writ of Exceptions to ASLB Memorandum and Order j
of FeDruary 18, 1981, dated August 24,1981 (hereinafter referred to as Intervenors' Brief), p. 11.
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t
without notice and without affording Intervenors the opportunity for a hearing on whether the application should be dismissed, without prejudice.
First, the record is clear that the Intervenors received notice of the Applicant's intent to withdraw its application contemporaneous with all other parties on September 11,1980.33/ It is equally clear that CCNR has been extensively heard on the issue of the appropriate conditions, if any, which should attach to the dismissal of the Application.
Implicit throughout Intervenors' brief, however, is the assumption that somehow they are entitled to an evidentiary hearing or an oral argument on the Applicant's motion to terminate these proceedings.
10 C.F.R. s 2.730(d)(e) expressly provides that no oral argument will be heard on a motion, unless the presiding officer or the Commission directs othe rwise.
In addition, these sections provide that a written brief nay be filed in support of a motion or answer, stating the arguments and authorities relied upon.
In addition, the rules contemplate that such a motion will be disposed of by written order or by an oral ruling during a prehearing con-ference or hearing. See, 10 C.F.R. 9 2.730(e) (as amended, 46 F.R. 30331, June 8, 1981).
CCNR cites no authority to support its continual barren claim, contrary to the Commission's regulations, that it is constitutionally entitled to oral argument on the Applicant's motion. To the contrary, tha entire scheme of Federal practice generally anticipates motions will be decided on the pleadings submitted and supporting documentation, without oral argument.
See Rule 78, FED. R. CIV. P., Morrow v. Topping, 437 F.2d 1155, 1156, (9th Cir. 1971).
43/ See, pp. 7-12, supra.
Indeed, courts have expressly held that the practice of deciding motions upon written submissions, without oral argument or evidentiary hearing, does not offend due process.SS/ United States Fidelity and Guarantee Ccmpany v.
Lawrenson, 334 F.2d 464, 467 (4th Cir. 1964), cert. denied, 379 U.S. 869 (1964).
F.C.C. v. W.J.R., The Goodwill Station, Inc., 337 U.S. 265, 274-77 (1949); Wilkens v. Rogers, 581 F.2d 399, 405 (4th Cir. 1978)
The Intervenors' claim of a constitutional right to a hearing on the alleged co; ruption of the Applicant is also misplaced. As we have stated, the Applicant's past conduct is only relevant to this proceeding to the extent it aids the Licensing Board in its determination of whether the public interest would best be served, or the Intervenors would suffer substantial harm, if the Applicant was permitted to withdraw its application, without prejudice.
See, Pilgrim, supra. The Intervenors claim that had there been a hearing they could have established material injury to tne land owners in the vicinity of the Islote site (Intervenors' Brief p.12), corr mtion in the management of the Applicant (p. 12), and that there is a greater risk of sabotage to a nuclear facility than to a fossil plant in Puerto Rico (p.15).SE/
- However, 44/ The Staff does not mean to suggest that the Licensing Board could not have heard oral argument on the Applicant's motion if it thought it would aid in the determination of that motion. However, nothing in the Comm'ssion's Rules of Practice nor the Constitution require the Board to hold such a hearing.
45/ The Intervenors were free, under 10 CFR 92.730(b), to file any affidavits on other evidence in support of their motion for a hearing, at the time it was requested on December 3,1980. The Intervenors did not attach supporting dccumentation to their motion.
,. _ ~.,
~..
the intervenors have not explained how, assuming these facts were established, the application should be dismissed with prejud1::e under the standards set forth in Point IV A of this brief.E A dismissal, without prejudice, is not an adjudication of the merits
.C_f_.Lawlor v. National Screen Service, 349 U.S. 322, 326-7 f
of a claim.
(1955); W11 wording v. Swenson, 502 F.2d 844, 848 (dth Cir.1974) holding 1
where one wishes to termirate a proceeding, and no findings are made, a dismissal is not dispositive in a subsequent proceeding.
Since the merits of the utility's application have not been passed upon by this agency, the Intervenors cannot be prejudiced by not being afforded a hearing at this time.S There is no righf. f.o a hearing wha e no 4_6/ If ever the Applicant should reapply, obviously the question of its canagerial character and technical competence will t,e important issues to be decided during the licensing process. However, in the context of an application withdrawal, the avestion is not the pro-priety of the Applicant's past acts, but rapier, whether the public interest would best be served if the application would be allowed to be dismissed, without prejudice. As pointed out in Pilgrim, supra, at p. 327, it wouH be unreasonable in the extreme to deprive the public of a needea utility service because of an alleged inconvenience or burden to potential intervenors. See also, Jones v. Securities and Exchange Commission, 298 U.S. 1 (1936).
$ While the Staff recognizes that this issue need not be addressed at this tine, it wishes to note that even had there been a decision on the merits adverse to the Applicant, following a hearing, this would not necessarily be a bar to reapplication should there be a change in the conditions which led to the denial of the initial license.
Thus, it has been held that the dismissal of an administrative pro-ceeding does not prevent the relitigation of similar issues where the facts or the law have changed. See, Federal Trade Connission Raladam Company, 316 U.S. 149, ITU 51 (1942); Connecticut Light v.and Power Company v. Federal Power Connission, 557 F.2d 349, 353 (2nd Cir. 1977). Furthenaore, even where there are no such changed circumstances, it has been recognized that res judicata and collateral estoppel principles will not necessarily be invoked where there are competing policy factors which outweigh the application of those doctrines. See, Alabama Power Company (Joseph M. Farley Nuclear Plant, Units 1 and 2), ALAB-182, 7 AEC 210, 213-15 (1974), aff'd and remanded on other grounds, CLI-74-12, 7 AEC 203 (1974).
i
1 L.
determination has been made on the merits of an application.
See, Rocky Mountain Power Co. v. Federal Power Com'n, 409 F.2d.1122, 1129 (D.C. Cir.1969).SS/
Perhaps of equal importance in considering the question of holding a hearing at this time is the consideration of valuable administrative resources. The Licensing Board did not forever deny the Intervenors the opportunity to litigate the managerial character and technical competence
~
of the Applicant. The construction permit application ifas dismissed without prejudice to refile.
By giving the Applicant the opportunity to file anew, if changed conditions warrant, the Licensing Board also left open to the Intervenors the right to frame contentions and litigate their.
4!/ Section 189 of the Atomic Energy Act, as amended, 42 U.S.C. 62239, regtdres hearings on construction permit applications for nuclear power plants. Pursuant to 10 C.F.R. 99 2.104(b) and 50.35 certain findings must be made by a licensing board before a construction permit can issue.
It is required that the board determine all matters enumerated in those regulations. See Gulf States Utilities Company (River Bend Station, Units 1 and 2), ALAB-444, 6 NRC 760, 774-75 (1977); Consolidated Edison Co. of N.Y. (Indian Point, Units 1, 2, 3), ALAB-319, 3 NRC 188, 189-190 (1976). Thus, no determination to issue a license could be made even if all contentions in dispute between the parties were settled, as a licensing board must not only resolve contested issues but must also assure itself that all applicable regulations and requirements have been satisfied. This is recognized in 10 C.F.R. 2.749(d) which provides that a summary judgment motion "may not be used to determine the ultimate issue as to whether the permit shall be issued." A dismissal for mootness or ordering a withdrawal of an application for failure of intent to construct the facility is by its terms not an action on the merits of an application and not within the terms of either section 189a of the Atomic Energy Act or 10 C.F.R. 9 2.749(d) and no hearing need be held.
Cf Federal Power Commission v. Texaco, 377 U.S. 33, 39-45 (1969,'; United States
- v. Storer Broadcasting Co., 351 U.S. 192, 205 (1956).
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concerns should a new application be filed.
Even when there are allegations of improper conduct, the public's need for the service at the time such service is applied for must be weighed against the character of the Applicant in determining whether a license should be granted. See Pilgrim, supra; Cosmopolitan BroadcastJpq Co. v. Federal Communications Commission, 581 F.2d 917, 928 (D.C. Cir.1978); Armored Carrier Corp. v. U.S., 260 F. Supp. 612, 615 (E.D.N.Y.1966), affirmed 386 U.S. 778 (1967).
In light of the fact the Applicant's corporate character and competence may be an issue in any future filing for a permit with this agency, to litigate these issues now is premature and an inefficient use of limited administrative resources.
See, Rocky Mountain Power, supra, at p. 1129.
C.
RJLE 41(a)(1) 90ES :PT GOVERN THIS PROCEEDING Finally, the Intervenors claim that the ASLB erred as a matter of fact and law in granting without prejudice Applicant's motion, while disregarding the fact that this was the second time Applicant withdrew its application.
Apparently, the Intervenors have interpreted Rule 41(a)(1), of tha Feder;l Rules of Civil Procedure, to require the second dismissal of any construction permit application in NRC proceedings to always be with prejudice. CCNR further reasons since the Applicant moved the site of its nuclear facility once from the Aguirre site to Islote, Puerto Rico, this latest dismissal must be with prejudice.
It should be first mentioned that in so far as the Staff is able to determine this argument is raised for the first time on appeal and should therefore be disregarded. Assuming, arguende, this Board chooses to address the merits of this argument, this Staff feels the third assignment of error is both irrelevant and not ingically consistent.
Rule 41 of the
Fed. R. of Civ. P. states in pertinent part:
Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state en action based on or including the same claim.
The fact that this rule has no application to the current proceeding is self evident.
First, there was not a prior dismissal in this case.
The amendment Of the application changing the facility's location from Aguirre to Islote, Puerto Rice, before notice of nearing was published, did not constitute the dismissing of one clain and the filing of a second.
Next, the application was never filed in a United States District Court or State Court. Thirdly, the application is not a claim arising out of a particular set of facts governed by the Federal Rules of Civil Procedure, but rather an application for a permit to build a nuclear power plant governed by the Commission's Rules of Practice. Accordingly, the Staff submits CLNR's third exception does not form any legal basis to set aside the Licensing 30ard's earlier ruling.
V.
CONCLUSION o
For the reasons set forth above, the NRC Staff submits that tne Licensing Board correctly applied the proper legal star: card in dismissing the application, without prejudice and properly exercised its discretion in denying Intervenors a hearing on the issue. Accordingly,
24,,
the Staff submits that the Meiaorandum and Order of the Atomic Safety and Licensing Board, dated February 18, 1981, should be upheld and that no further hearings in this matter should be conducted.
Respectfully submitted, Jay M. Gut rez Counsel for NRC Staff Dated at Bethesda, Maryland this 8th day of October,1981.
i t
I
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETi AND 1iCENSING APPEAL BOARD In the Matter of i
}
PUERTO RIC0 ELECTRIC POWER
)
Docket No. 50-376 AUTHORITY (NorthCoastNuclearPlant, Unit 1))
_ CERTIFICATE OF SERVICE I he eby cerd fy that copies of "NRC STAFF RESPONSE IN OPPOSITION TO THE INTERVEN0RS' EXCEPTIONS TO THE ASLB ORDEP OF FEBRUARY 18, 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 Comis ri's internal mail system, this 8th day of October, 1981:
Mr. Gustave A. Linenberger*
Alan S. Rosenthal, Esq., Chairman
- Administrative Judge Atomic Safety and Licensing Atomic Safety and Licensing Board U.S. Nuclear Regulatory Comission Appeal Board U.S. Nuclear Regulatory Cor.nission Washington, DC 20555 Washingtor., DC 205E5 Dr. Richard F. Cole
- Administrative Judge Dr. John H. Buck, Member
- Atomic Safety and Licensing Board Atomic Safety and Licensing U.S. Nuclear Regulatory Comission Appeal Board Washington, DC 20555 U.S. Nuclear Regulatory Comission Washington, DC 20555 Haurice Axelrad, Esq.
l Lowenstein, Newman, Reis.
Axelrad & Toll Stephen F. Eilperin*
Atomic Safety and Licensing 1025 Connecticut Avenue, N.W.
Appeal Board Washington, DC 20036 U.S. Nclear Regulatory Cornission Wasi: '
>n, DC 20555 Esq. Jose F., Irizarry Gonzalez Sheldon J. Wolfe, Esq., Chairman
- General Counsel Puerto Rico Electric Power Administrative Judge Atomic Safety and Licensing Board Authority U.S. Nuclear Regulatory Comission G.P.O. Box 4267 Washington, DC 20555 San Juan, PR 00936 i
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n,.
-.sark".
Alberto Bruno Vega, Assistant Eng. Francisco Jimenez Executive Director, Planning Box 1317 and Engineering Hayaguez, PR 00708 Puerto Rico Electric Power Authority Mr. Gonzalo Fernos, Chairman 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. German A. Gonzalez Mision Industrial De Puerto Rico Attorney for Mision C.P.O. Box 20434 Industrial, Inc.
$; Piedras, PR 00925 Mision Industrial De Puerto Rico G.P.O. Box 20434 Atomic Safety and Licensing Rio Piedras, PR 00925 Board Panel
- U.S. Nuclear Regulatory Commission Docketing and Service Sectior,*
Nesnington, DC 20555 Office of the Secretary U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, DC 20555 Appeal Bcard*
U.S. Nuclear Regulatory Commission Washington, DC 20555 i
/M.Gu/Tfrrez R'
Counsel M NRC Staff O
I
-. _