ML20038A415
| ML20038A415 | |
| Person / Time | |
|---|---|
| Issue date: | 09/05/1980 |
| From: | Fitzgerald NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20038A409 | List:
|
| References | |
| FOIA-92-436, TASK-CA, TASK-SE SECY-A-80-131, NUDOCS 8110290504 | |
| Download: ML20038A415 (7) | |
Text
-.
UfdlTED STATES NUCLEAR REGULATORY COMMISSION WAS HIN GTON, D. C. 20555 ADJUDICATORY SECY-A W September 5,1980 COMMISSIONER ACTION For:
The Commissioners From:
James A. Fitzgerald Assistant General Counsel REVIEW OF ALAB-605 (IN THE MATTER OF PUERTO RICO
Subject:
ELECTRIC POWER AUTHORITY)
Facility.
North Coast Muclear Plant, Unit 1
?etitions for Review:
Mcne received Review Time Expires:
September 19, 1980 (as extended)
To inform the Conmission of an Appeal Board de ci sion [whi c h, in our cpinion, gy.I Furpose:
_d
- r ALAS-6 f, the Appeal Ecard overruled a Discussien:
Licer. sing Ecard determination that a construc-tien permit application could not be dismissed wit hcut a health and safety hearing even where it appeared that the applicant had abandoned 1
the prc'ect.
(LEP-80-15, 11 NRC 765)
The Appeal Scard cited te its unpublished crder of June
, 1960, in which it held that neither Section 189 of the Atomic Energy Act nor the NRC Rules of Practice limit the " inherent authority of adjudicatory tribunals to dismist
/
those natters placed before them which have t J i t-I been moeted by supervening developments."
The l
natter was remanded to the Licensing Board, xhich eculd then proceed to determine whether I- (($MC[6 the applicant had in fact abandoned its inten-tion te build the North Coast facility, and whether an evidentiary hearing was necessary te nahe this determination.
l I
r l
CC:: TACT-7g l
Williar F.. Shields, CGC Information in th.is record tvas deleted
^t-322-n accxdance wit!. the freadom cf Information I
Act, excm;hy F01A -_SRd/A
Cf.(
l 1
l.
f Reccmmendation:
/
a9 R.
'ames A. F--~Eerald i
Assistant General Counsel j
Attachment:
ALAB-605 Interveners had requested the Appeal Board to " advise the 5/
Scard to treat Intervenors in forma pauperis and 1.icensin5 thus autherine payments frcm 11RC or Applicant's funds of fees and travel expenses of a legal counsel for Intervenors chcsen-by the latter."
In footnote 2 to its decision the Appea'_
Ecard left that matter for the Licensing Board to decide.
3 Comissioners' comments should be provided directly to the Office of the Secretary by c.o.b. Friday, September 19, 1980.
Comission Staff Office coments, if any, should be submitted to the Commissioners NLT September 12, 1980, with an information copy to the Office of the Secretary.
If the paper is of such a nature that it requires additional time for analytical review and com. Tent, the Commissioners and the Secretariat should be apprised of when comments may be expected.
DISTRIBUTION Comissioners Comission Staff Offices Secretariat
pf ! 2 ' ' '
G O
.i UNITED STATES OF AMERICA Oi NUCLEAR REGULATORY COMMISSION I
i y
D00him j
9.,
USHM
\\
E ATOMIC SAFETY AND LICENSING APPEAL BOARD AUGi i E
- h Alan' S. Rosenthal, Chairman
(
0:!% of the in,.et -
4 Dr. John H. Buck tm. g g.g tr,,a f,]
Michael C. Farrar 4
' 4G l \\
l 2
I D
AUG111Fs In the Matter of
)
)
PUERTO RICO ELECTRIC POWER AUTHORITY )
Docket No. 50-376
)
(North Coast Nuclear Plant, Unit 1)
)
)
Mr. Maurice Axelrad, Washington,. D. C., for the applicant, Puerto Rico Electric Power Authority.
Mr. Gonzalo Fern 6s, Santurce, Puerto Rico, pro se and on behalf of the intervenor Citize'ns for the Conservation of' Natural Resources, Inc.
Messrs. Edwin J. Reis and Roy P. Lessy for tne Nuclear Regulatory Commission staff.
MEMORANDUM AND ORDER August 11, 1980 (ALAB-605)
In an order entered 'on May 29, 1980, the Licensing. Board ruled, inter a_lia, th at it : lacked ' the authority tio' ' dismiss ' or" deny'a_ construction permit application pending-before it even if it should clearly appear that the applicant had -abandoned any intention to build the facility in question LBP.80-15,-
,,...4
-l
'y
- t ea
,-w'---+et-e w-w w
- =,
- umm.
e
.*-f i,-w w
w
\\
. a 11 NRC 765.
Its reasoning was that:
In light of Section 189 of the Atomic Energy Act of 1954, as amended, 42 U.S.C.
2239, and the Commission's regulations, 10 C.F.R. 2.104, which mandate hearings on applications for con-struction of nuclear power plants, there is no procedure (short of withdrawal by the Applicant) for a Board's disposition of such an application without a hearing on health, safety and environ-mental issues.
767. b!
Id. at On our own initiative, we direct certification of that rul-ing under 10 CFR 2.718(i) and reverse it.
Having heard from the parties on the matter, we adhere to the conclusions tentatively reached in an unpublished order entered on June 4, 1980:
It is true, of course, that neither the Atomic Energy Act nor the Rules of Practice specifi-cally establish a procedure for~ dismissing (or denying) a construction permit application on the ground that the applicant has clearly abandoned its purpose to build the f acility in question.
It scarcely perforce follows, however, that a licensing board is required to retain on its docket in perpetuity an applica-tion which has become entirely academic.
In this connection, we find nothing in Section 189 of the Act or Section 2.104 of the Rules of 1/
A similar statement'had appeared, albeit in a different context, in Boston Edison Co. (Pilgrim Nuclear Generating Station, Unit 2), LBP-75-15, 1 NRC 419, 420 (1975).
Al-though the Board below did not cite Pilgrim, its attention l
had been directed to it by both the applicant and the NRC staff.
Both of those parties have now either explicitly or tacitly withdrawn their reliance on Pilgrim in this proceeding.
3-Practice which might support such a curious re-sult.
To be sure, those Sections may preclude the grant of a construction permit application without some hearing of the " health, safety and environmental issues" which either must be rou-tinely considered as a matter of law or have j
been properly raised by a party to the proceed-ing.
But their terms are devoid of anything which immediately suggests to us an intended limitation upon the inherent authority of adju-dicatory tribunals to dismiss those matters placed before them which have been mooted by supervening developments.
We there added by way of footnote:
At first impression, Section 2.749 (d) of the Rules of Practice, 10 CFR 2.749 (d), would not appear to bar the dismissal of a moot proceed-ing.
Rather, the only limitation on a licens-ing board's summary disposition authority is that it "may not be used to determine the ul-timate issue as to whether the permit shall be issued".
A dismissal for mootness -- not in-volving a consideration of the merits of the application -- would not seem to be within the i'ntended purview of that limitation.
The cause is remanded to the Licensing Board for further proceedings in conformity with this opinion.
In this connection, we intimate no views regarding whether, as the intervenors main-tained below, the applicant has in fact abandoned any intention to build the tiorth Coast facility.
Nor do we now concern our-selves with whether it will be necessary to conduct an eviden-tiary hearing in order to reach an informed judgment on the
i
. :g aribil5L E=K;=i?i=:.=ii-55.jg -LL%s- :QRj.)M=~=& ;..:.~_':":g" ::: 3.; \\\\".;l:., =: \\ .~ \\ l a l 4-1 I abandonment question. Both of those matters are for the Licens-ing Board to decide in the first instance.-2_/ s It is so ORDERED. FOR THE APPEAL BOARD bOM d m) \\ C. Je q Bishop Secretary to the Appeal Board 2/ In their July 18, 1980 submission to us (at pp. 7-8), the intervenors ask that we give certain procedural instruc-tions to the Licensing Board. We decline to do so. Wheth-er they are entitled to the relief which is sought on that score also is more appropriately left to the Board below.}}