ML19331B734

Response to Applicants' 800718 Memorandum Alleging That ASLB Has No Jurisdiction to Dismiss CP Application as Moot.Urges Reversal of ASLB 800529 Order in Order to Address Merits of Intervenors' 800430 Request.W/Certification of Svc

ML19331B734
Person / Time
Site:	05000376
Issue date:	08/04/1980
From:	Fernos G CITIZENS FOR THE CONSERVATION OF NATURAL RESOURCES, IN
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
NUDOCS 8008120706
Download: ML19331B734 (6)

Text

-

q .

4 August,1980 UNITED STATES OF AMERIC A NUCLEAR REG UL ATORY COMMISSION BEFORE THE ATOMIC S AFETY AND LICENSING APPEAL BO ARD in the Matter of PUERTO RICO POWER AUTHORITY DOCKET NO. 50- 376 Applicant Proposed Nort h Coos

• GONZALO FERNOS, PRO SE, ET AL.

• Nuclear Plant ( Un' Intervenors

• Islote Word, Arecibo, P Ricjocmgo g USNRC 2 A(Jg g  ;

INTERVENORS' RESPONSE TO APPLICANT'S *

% M m e, fee Secebuy nra senja

\

MEMORANDUM OF JULY 18,1980 g f,

TO THE HONORABLE APPEAL BOAPD :

e COMES NOW the undersigned Intervenor, Pro Se, and in representatica of Citizens for the Conservation of Natural Resources, Inc. ( CCNR ), hereinafter collectively referred to as the Intervenors, and respectfully states, alleges, cnd prays :

e INTRODUCTION : Intervenors' Motion of July 9,1980, crented on July 14, 1980, requested "that in the event that pursuant to ASLAB ORDER of June 30, 1980, Applicant files with the ASLAB on or before July 18,1980 a memorandum in response to the June 27,1980 Memo-randum of the NRC Staff, Intervenors be granted the option to file a responsive memorandum there-to..." Intervenors herein submit such response.

. Applicant does not address all the supported contentions raised by the NRC Staff. It infers, however, that the Commission, the Appeal Board and the Licensing Board lack jurisdiction to rule on the issues raised by Intervenors in their Petition ( Motion ) of April 30,1980. The Ap-plicant thus incorrectly alleges :

• Applicant should be instructed not to refer to itself as "the Authority", but plainly as the Ap-plicant, in any event, the Authority in these proceedings -is the Commission and its adjudicatory boards ( ASLAB, ASLB )~. In the some token, Applicant should also be instructed to stop belittling intervenors while upgrading itself.

' 08 no prg D305

,s 8//

0, , ,

Docket No. 50-376 -

2- 4 August,1980

"_ the Commission's regulations and decisions do not address the question of whether a beard has inherent authority to dismiss a construction permit application as moot over the objections of an applicant, * * *

• Consequently, the status of the low on this point is unsettled, and the question is

-res novo to the Appeal Board."

( See Applicant's Memo of July 18,1980, at page 2.) l e Intervenors concur with NRC Staff stand that purportto prove that the Commission and any of its adjudicatory instrumentalities ( ASLAB and ASLB ) indeed have jurisdiction over the issues raised by Intervenors opposed by Applicant. In other words, Intervenors submit that the Licensing Board , who at first instance believed it locked authority to decide on the issues raised by Inter-venors, as a matter of low and precedence, has the " inherent authority to dismiss on application as moot over the objection of an applicant." The cases cited by the NRC Staff

• ore *ndeed appli-cable to the question raised by the Appeal Board in the instant proceeding. That is, those decisions constitute primo facie evidence of the jurisdiction of the Commission and its instrumentalities to adjudicate Intervenors' Motion of April 30, 1980. Applicant otso incorrectly interprets 10 CFR i 2.107, i 2.108 and i 2.605. However, this Memoronom will discuss mainly whether the Licensing Board has inherent authority-as alleged by NRC Stoff--to entertain a request by intervenors for withdrawal of an application over the objections of the Applicant.

• Consuiners Power Co. ( Quanicassee Plant, Units 1 & 2), CLI-74-29, 8 AEC 10 (1974).

Detroit Edison Co. ( Greenwood Energy Center, Units 2 & 3), LBP-76-56, 2 NRC 565, 568 (1975) ;

Rochester Gas & Electric Co. ( Sterling Power Project, Unit 1), ASLAB-596 (June 17,1980).

l Konsos City Gas & Electric Co. ( Wolf Creek Nuclear Generating Station, Unit 1), CLI-77-1,

' 5 NRC 1, 5 (1977). -

Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-47, AEC 794(1972).

Cf. Offshore Power Systems (Floating N Plants), ALAB-489, 8 NRC 194, 204-205 (1978).

Rocky Mountain Power Co. v. Federal Power Commission, 409 F.2d 1122,1127-1129

( D.C. Cir.1%9).

1 J

w-y-- y-.,---.,.,...-w-- - gyw, , . - - , - - . - ,,..-y.,,--,.,m---y,yv--m--w-- - < - ,.

Docket No. 50-376 4 August,1980

' e DISCUSSION : The NRC Staff purports the broad authority of a presiding officer

nder 10 CFR I 2.718 by quoting several of the Commission's Orders upheld by the U.S. Court of Appeals.* lt also quotes the Rules of Practice and various cases resolved by the Commission or the Appeal Board to sustain that "the Commission had determined that the 1.icensing Board had authority under 10 CFR I 2.107(a) to pass on the issue of whether on application may be ordered withd awn for lack of intent to construct the project."

'e Applicant incorrectly clieges that 10 CFR I 2.107(o) "only permits an applicant to withdraw its application [ond 3 findis 3 nothing therein which would authorize another party to request on adjudicatory board to compel on opplicant to withdraw its application." It is therefore deemed necessary to quote and analize in the realm of its true context 10 CFR I 2.107(o) :

" The Commission may permit an applicant to withdraw on opplication prior to the . issuance of a notice of hearing on such terms and conditions as it may prescribe, or may on re-ceiving a request for withdrawol of an apolication, deny the opplication or dismiss it with preivdice. Withdrawal of an application offer issuance of a notice of hearing shall be on such terms as the presiding officer may prescribe." ( Emphasis added )

From its own wording 10 CFR I 2.107(o) has a broader meaning and refers to more parties I than what Applicant purports to limit it to. Said Rule permits the Commission to entertain a with-drawal of an application coming from either the applicant itself, the NRC Staff, on intervenor or any other party. What the Rule, naturally, does not specifically acknowledge to the Commission is the authority to suo sponte summarily dismiss on application, but that is not the issue at this stage.

On the other hand, neither does the Rule restrict the Commission to consider requests for withdrawal of on application coming solely from an applicant, as Applicant erroneously alleges. In fact, as

• See NRC Stoff Memorandum of June 27,1980, pages 6 and 7, where it is stated : " These general powers to regulate the course of proceedings and bring them to fruition would provide authority for the [1.icensing] Board to entertain the subject motion [Intervenors' Petition of April 30, 1980 3 and to inquire into whether the applicant intends to use the construction permit."

l l

-~- ,- - , - --

-,n.-_ , , . _ _ _ - - - _ , _ _ _ _ , , , _ _ _ , , _, , _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

_ Docket No. 50-376 -

4- 4 August,1980 the Rule is worded the request con come from anyone-even from on inhabitant of another galaxy.

Thus, inconceivat le is Applicant's rctionale that 10 CFR I 2.107(a ) is to be interpreted as decling exclusively with a request by on applicant with the exclusion of NRC Staff, Intervenors or any other party.

• There is no doubt that the Rule grants permission to any party to request a withdrawal or dismissal with or without the objections of an opplicant'. That is the broader sense that the Commission and the Appeal Board have accorded to 10 CFR S 2.107(a) as evidenced by orders issued in various proceedirigs, to wit: Quanicassee, supra, etc.

e Applicant also twists ** the meaning of NRC Staff comments **

• by erroneously attrib-uting to the latter " that an inquiring into the matter raised by the petition would not necessarily re-quire a hearing..." The reverse is true. In fact, NRC Staff in the footnote omitted in Applicant's quotation further clarifies the propriety of a hearing by quoting a case in which "the Appeal Board noted that hearings might be conducted into the causes and [ustification for a delay." Applicant furtheron incorrectly generalized that " motionspre-usually decided upon the filing of the parties

/

without opportunity for a hearing, cross-examination, or oral argument..." That would be a sheer violation of due process wher. .'he nature of the questions raised to be adjudicated--es in the in-stant procedding--involves the need of supporting evidence to enable the Licensing Board to reach an equitable conclusion. It follows that there should not be any doubt in the minds of the Ho'norable Members of the Appeal Board that the questions raised by Intervenors need specific answers and supporting documental evidence either by instituting discovery on the issues raised by Intervenors or through an evidentiary hearing. The strength of the points raised by intervenors, however, would

• In the Quanicassee case, supra, the request for withdrawal come from a petitioner who had not at that time been accepted as an intervenor.

• • See Applicant's . Memorandum of July 18, 1980, at_page 8.

• *

• Sco NRC Staff Me[norandum of June 27, 1980, at page 11.

-g - - - ,--,-,-w--. y v. y-- ----3 = -w.+ --.

Docket No. 50-376 '

4 August,1980 inevitably lead Applicant to a voluntary withdrawal of the application when the facts are estab-lished without a shadow of a doubt. That seems to be the reason why Applicant is running the gauntlet to avoid on open confrontation with the issues raised by Intervenors in their Ferition of April 30, 1980. Thus, it seems that some pressure exerted by the Licensing Board to find out the truth would compel Applicant to expose its real situation. That is, if Intervenors are given the opportunity to prove they are right in their claim that Applicant has given up long ago any consid-erotion whatsoever to build a nuclear plant in Puerto Rico*, either Applicant motu proprio will withdraw the application or the Licensing Board will have no other choice but to issue on order of withdrawal or dismissal and such order would be sustained on the Commission's previous decisions and case low by the courts.

e Applicant is also incorrect when it purportsto give the wrong impression that it " has not violated any of the Commission's regulatory requirements." *

• However, Applicant failed to report to the Licensing Board, NRC Staff and Intervanors their action of desisting from the expro-priation of the land for siting the Nuclear Plant, concealing such action for the lost four years and even now does not want to admit to such on indisputable fact. Also, Applicant failed to submit to the parties its yearly Financial Statements which undoubtedly reveal the unreadiness of Applicant to pursue the Nuclear Plant project for lack of funds presently and in a foreseen future.

. Finally, Intervenors wish to emphasize the need for legal assistance by means of pro-viding Intervenors with funds which con be used "to retain counsel in this Docket and its subsequent legal followings and procedures, redresses and remedies." It is to be noted that although in

• Another sign of Applicant's lack of intent to build the Nuclear Plant project is that its Environ-mental, licensing and Nuclear Division has been dismontled eliminating 70% of its empidyees.

The remaining 30% is presently engaged in dealing with environmental issues related solely to oil and coal burning plants.

• See Applicant's Memorandum of July 18,1980, at page 6.

. . : ' .~ ~

~_ Dockst N2. 50-376 4 August,1980 Quanicassee, supra, the Commission did not reach the point of resolving on the merits the peti-tieners' request for attorney's fee, neither did the Commission rule out that the Rules of Practice and the Atomic Energy Act of 1954, as amended, preclude the Commission from granting legal funds to intervenors. Such preclusion was not raised, naturally, because there is no such prohibitory disposition in the statutes and regulations. Intervenors need not stress again the urgency for such legal assistance and thus rely on the Appeal Board's broad judgment to oversee that parties in on ongoing proceeding be properly represented.

e WHEREFORE, intervenors respectfully pray the Honorable Appeal Board to reverse the Licensing Board's Order of May 29,1980, so as to enable said Board to reach the merits of Inter-venors' request of April 30,1980," treated as a motion to compel withdrawal or dismissal of the application for Applicant's abandonment of intent to use the construction permit sought" because of its unreadiness to materialize the Nuclear Plant project for lack of funds and other considerations ;

to grant Intervenors the means to obtain fund ip ng legal assistance ; and/or to grant any D

other re'ief not inconsistent with preva' stgtyd I

USNRC Yi e in San Juan, Puerto Rico is 4th da of Augus -i 80. /

4 g

cc  % 9.

ott of theSe Occke M & S* *

• j) Gonzalo Fern 6s, rc, Se, and

\>

'- #vr@h, 8"#

gV \ '

W representing Members of CCNR.

' -'3 _,

503 Barbs Street Santurce, Puerto Rico 00912 CERTIFICATE OF SERVICE BY Mall e i HEREBY CERTIFY : That on this some date copy of the above memorandum has been served by first class or air mail upon the following: Miss C. Jean Bishop, Secretary to the ASLAB ;

Alan S. Rosenthal, Esq., Chairman, ASLAB ; Dr. John H. Buck, Member, ASLAB ; Michael C.

Ferrar, Esq., Member, ASLAB ; Secretary of the NRC , Att. Docketing and Service Section ;

Sheldon J. Wolfe, Esq., Chairman, ASLB ; Dr. Richard F. Cole, Member, ASLB ; Mr. Gustave A.

Linenberger, Member, ASLB ; Edwin J. Reis, Esq., Counsel for NRC Staff ( All the above bearing

! some address as follows : U.S. Nuclear Regulatory Commission, Washington, D.C. 20555); Maurice l Axelrod, Esq.,1025 Connecticut Avenue, N.W., Washington, D.C. 20036 ; Joss F. Irizarry, Esq.,

legal Counsel for Applicant, Puerto Rico Electric Power Authority, GPO Box 4267 San Juan, P.R.

00936 ; Eng. Alberto Bruno Vega, Executive Director, Puerto Rico Ele ric o Aut}ority, GPO Box 4267, San Juan, Puerto Rico 00936.

A@

Gonze o Fern 6

__e - -_- _ __ _

- _ - - . , - - - - . . , - - . , , - _ _ - - -