|
---|
Category:LEGAL TRANSCRIPTS & ORDERS & PLEADINGS
MONTHYEARML20039E9551982-01-0606 January 1982 Response Opposing G Fernos & Citizens for Conservation of Natural Resources,Inc 821222 Petition for Review.Request Untimely & Unsupported.Matters Should Have Been Raised Before Aslab.Certificate of Svc Encl ML20039D8371981-12-29029 December 1981 Response Opposing G Fernos & Citizens for Conservation of Natural Resources,Inc.811218 Petition for Stay of Aslab 811207 Decision.Intervenors Failed to Seek Stay of ALAB-622 from Aslab.Certificate of Svc Encl ML20039C6971981-12-22022 December 1981 Petition for Review.Commission Should Remand Case to ASLB for ASLB to Delineate & Impose Conditions Upon Applicant for Granting Dismissal of CP Application W/O Prejudice. Certificate of Svc ML20069A9931981-12-18018 December 1981 Petition for Stay of Aslab 811207 decision,ALAB-622, Dismissing Proceeding W/O Prejudice.Certificate of Svc Encl ML20010D1621981-08-0303 August 1981 Request for Consolidation W/Fulton Proceeding & for 15-day Extension to File Brief.Instant Case & Fulton Proceeding Present Common Question of Law & Fact.Certificate of Svc Encl ML20010B2831981-08-0303 August 1981 Motion to Consolidate Fulton Case & for Extension of 15 Days to File Brief.Cases Present Common Question of Law & Fact. Intervenor Illness Necessitates Extension of Time ML20009E4291981-07-21021 July 1981 Petition for Reconsideration & Request for Extension of Time to File Brief.Belated Mailing of Microfiche Collection & NRC Issuances Adversely Affects Intervenor Opportunity to Conduct Necessary Research ML19352B3371981-06-29029 June 1981 Response Opposing G Fernos & Citizens for Conservation of Natural Resources,Inc 810613 Motion to File Sworn Statements.Intervenors Failed to Justify Reopening of Record ML20005A9051981-06-29029 June 1981 Notice of Appearance Re Facility.Certificate of Svc Encl ML19351A1671981-06-16016 June 1981 Comments on Various Matters in Proceeding.Intervenors Concerned That Aslab 810611 Order Does Not Mention Compelling ASLB to Keep Record Open on Applicant Past Performance.Certificate of Svc Encl ML20004F7621981-06-13013 June 1981 Motion for Leave to File Encl Sworn Statements as Evidence of Damage to Public Interest Which Would Be Caused & Remain If Application Dismissal W/O Prejudice Were Sustained on Appeal.Certificate of Svc Encl ML20004E8961981-06-0606 June 1981 Petition to Reconsider Aslab 810601 Order Denying Intervenors' 810512 Request for Extension of Time to File Brief.Requests Aslab Investigation Into NRC Failure to Serve NRC Response to Intervenors' Request.W/Certificate of Svc ML20004B6321981-05-21021 May 1981 Response to G Fernos & Citizens for Conservation of Natural Resources Notice of Appeal & Request for Extension of Time to File Brief.Opposes Delay in Filing.Leave to File Appeal Granted Earlier.Certificate of Svc Encl ML19347F6291981-05-12012 May 1981 Notice of Appeal of ASLB 810218 Memorandum & Order. Intervenors Take Exception to Granting Applicant Motion to Terminate Proceeding & Granting Withdrawal of Application W/O Prejudice.Certificate of Svc Encl ML20003J3821981-04-25025 April 1981 Response Opposing Applicant 810417 Response to Intervenor Petition for Temporary Stay & Extension of Time.Applicant Motion Lacks Support & Time to File Appeal Has Not Expired. Certificate of Svc Encl ML17328B0611981-04-17017 April 1981 Response Opposing G Fernos & Citizens for Conservation of Natural Resources 810406 Request for Stay of ASLB 810218 & 0326 Decisions & Petition for Extension of Time to File Appeal.Certificate of Svc Encl ML19347D9201981-04-0606 April 1981 Request for Extension Until 810515 to File Appeal & for Stay of ASLB 810218 & 0326 Orders Granting Applicant Withdrawal of Application W/O Prejudice & Denying Intervenor Petition for Reconsideration,Respectively.Certificate of Svc Encl ML19350B5271981-03-12012 March 1981 Answer Opposing G Fernos 810303 Request for Reconsideration of ASLB 810218 Order Granting Withdrawal W/O Prejudice of Util Application.Also Opposes Request to Stay Decision.No New Info Presented.Certificate of Svc Encl ML19347D2291981-03-0303 March 1981 Request for Reconsideration of ASLB 810218 Order Granting Application Withdrawal W/O Prejudice.Applicant Actions & Clear Lack of Necessity for Plant Demand That Dismissal Be W/Prejudice.Certificate of Svc Encl ML20002C0871980-12-31031 December 1980 Reply to Intervenor 801203 Submittal Stating Withdrawal Application Should Be Dismissed W/Prejudice.Accusation of Hidden,Deceitful Action Is Unsubstantiated.Proceeding Should Be Terminated W/O Prejudice.W/Certificate of Svc ML19351F1431980-12-0303 December 1980 Reply to Applicant & NRC Contention That Withdrawn Application Should Not Be Dismissed W/Prejudice.Urges That Application Be Dismissed W/Prejudice.Certificate of Svc Encl ML19351C8811980-10-0303 October 1980 Response in Opposition to Citizens for Conservation of Natural Resources Motion for Direct Certification Urging Dismissal of Application W/Prejudice.Future Applications May Not Be Barred Unless Public Harmed.Certificate of Svc Encl ML19332B4051980-09-18018 September 1980 Motion for Stay of Proceeding Until Commission Rules Upon Direct Certification Seeking Dismissal of Application W/ Prejudice.Certificate of Svc Encl ML19332B4041980-09-18018 September 1980 Addendum to 800917 Motion for Direct Certification Which Requested That CP Application Be Dismissed W/Prejudice. Applicant Withdrawal Evading Direct Confrontation W/Issues Raised & Litigated for 5 Yrs Is Unfair.W/Certificate of Svc ML19332B3971980-09-17017 September 1980 Motion for Direct Certification Requesting That CP Application Be Dismissed W/Prejudice Rather than Accepting Applicant Withdrawal Terminating Proceeding.Certificate of Svc Encl ML19332A9111980-09-13013 September 1980 Requests Commission Take No Action Re ALAB-605.Intervenor Must Present Case to ASLB Before Commission Acts to Review ALAB-605.Intervenor Counsel in Hosp Until After Commission Action Deadline of 800919.Certificate of Svc Encl ML19332A4911980-09-11011 September 1980 Motion for Termination of Proceeding Due to Encl Withdrawal of Application.Certificate of Svc Encl ML19332A4891980-09-11011 September 1980 Motion for Withdrawal of Application for CP ML19332A1801980-09-0303 September 1980 Motion Advising of Temporary Substitution of Author.Requests Incorporation of T Morales on Svc List in Absence. W/Certificate of Svc ML19332A1931980-09-0303 September 1980 Interrogatories & Request for Production of Documents Directed to Applicant.Questions Applicant Financial Statement Re Past & Future Total Investment in Project. Certificate of Svc Encl ML19331D9091980-08-27027 August 1980 Motion for Ruling on Intervenor 800718 Submission Seeking Legal Assistance During Hearings Plus Round Trip Travel & Lodging Expenses for Counsel.Certificate of Svc Encl ML19331D9071980-08-27027 August 1980 Motion for Clarification of Scope of Single Issue to Be Tried in ASLB 800819 Order Re Intervenor 800430 Petition on Lack of Intention to Build.Draws Attention to Util Inaction & Contradictory Actions.W/Certificate of Svc ML19331B7341980-08-0404 August 1980 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 ML19321A5071980-07-18018 July 1980 Response to NRC 800627 Memorandum,In Reply to Aslab 800630 Order.Interlocutory Review of ASLB Order Re Dismissal of CP Application W/O Hearing on Health,Safety & Environ Is Not Warranted.Certificate of Svc Encl ML19321A6281980-07-18018 July 1980 Memorandum in Response to Aslab 800604 Order Re Validity of ASLB 800529 Order Denying Petition to Intervene.Urges Reversal of ASLB Order & Institution of Hearings. Certificate of Svc Encl ML19320C2721980-07-0909 July 1980 Motion Seeking Option to Respond to Applicant by 800808,if Applicant Responds to NRC 800627 Memorandum by 800718,re Aslab 800630 Order.Certificate of Svc Encl ML19320A7771980-06-27027 June 1980 Memorandum in Response to Aslab 800604 Order.Interlocutory Review of ASLB Order Denying G Fernos Petition to Dismiss Application Not Warranted Unless Legal Boundaries Are Not Explored.W/Certificate of Svc ML19312E9181980-05-19019 May 1980 Response in Opposition to Intervenor G Fernos 800430 Request for Issuance of Order to Show Cause Why Application Should Not Be Dismissed.No Time Frame Requirememts Exist for License Processing.W/Certificate of Svc ML19318A2771980-04-30030 April 1980 Petition Urging ASLB to Hold Evidentiary Hearings to Request Applicant to Show Cause Why Application Should Not Be Dismissed Due to Lack of Intention to Build.Requests Costs & Damages.W/Certificate of Svc & Supporting Documents ML19209B8361979-08-31031 August 1979 Status Rept as of 790831.Natl Academy of Sciences Is Studying Overall Energy Situation in Pr.Portion of Study Is Being Prepared by Electric Power Sys Subcommittee. Certificate of Svc Encl ML20076B1551979-04-30030 April 1979 Status Rept by Puerto Rico Water Resources Authority Re Facility Application,As of 790430.Electric Power Sys Will Issue Rept by Late May.Certificate of Svc Encl ML19263B6711978-12-29029 December 1978 Status Rept as of 781229 Re Puerto Rico Water Resources Authority'S Application.Internal Review of Generation Expansion Not Yet Completed.Westinghouse Contract Re Nuclear Steam Supply Sys Cancelled.W/Certificate of Svc ML20148C4311978-10-16016 October 1978 Discovery Status Rept as of 781016.Internal Review Incomplete.Requests That NRC Issue Site Safety Review Re Seismicity & Geology.Applicant Does Not Expect to File Motions in Near Future.Certificate of Svc Encl 1982-01-06
[Table view] Category:PLEADINGS
MONTHYEARML20039E9551982-01-0606 January 1982 Response Opposing G Fernos & Citizens for Conservation of Natural Resources,Inc 821222 Petition for Review.Request Untimely & Unsupported.Matters Should Have Been Raised Before Aslab.Certificate of Svc Encl ML20039D8371981-12-29029 December 1981 Response Opposing G Fernos & Citizens for Conservation of Natural Resources,Inc.811218 Petition for Stay of Aslab 811207 Decision.Intervenors Failed to Seek Stay of ALAB-622 from Aslab.Certificate of Svc Encl ML20039C6971981-12-22022 December 1981 Petition for Review.Commission Should Remand Case to ASLB for ASLB to Delineate & Impose Conditions Upon Applicant for Granting Dismissal of CP Application W/O Prejudice. Certificate of Svc ML20069A9931981-12-18018 December 1981 Petition for Stay of Aslab 811207 decision,ALAB-622, Dismissing Proceeding W/O Prejudice.Certificate of Svc Encl ML20010D1621981-08-0303 August 1981 Request for Consolidation W/Fulton Proceeding & for 15-day Extension to File Brief.Instant Case & Fulton Proceeding Present Common Question of Law & Fact.Certificate of Svc Encl ML20010B2831981-08-0303 August 1981 Motion to Consolidate Fulton Case & for Extension of 15 Days to File Brief.Cases Present Common Question of Law & Fact. Intervenor Illness Necessitates Extension of Time ML20009E4291981-07-21021 July 1981 Petition for Reconsideration & Request for Extension of Time to File Brief.Belated Mailing of Microfiche Collection & NRC Issuances Adversely Affects Intervenor Opportunity to Conduct Necessary Research ML19352B3371981-06-29029 June 1981 Response Opposing G Fernos & Citizens for Conservation of Natural Resources,Inc 810613 Motion to File Sworn Statements.Intervenors Failed to Justify Reopening of Record ML19351A1671981-06-16016 June 1981 Comments on Various Matters in Proceeding.Intervenors Concerned That Aslab 810611 Order Does Not Mention Compelling ASLB to Keep Record Open on Applicant Past Performance.Certificate of Svc Encl ML20004F7621981-06-13013 June 1981 Motion for Leave to File Encl Sworn Statements as Evidence of Damage to Public Interest Which Would Be Caused & Remain If Application Dismissal W/O Prejudice Were Sustained on Appeal.Certificate of Svc Encl ML20004E8961981-06-0606 June 1981 Petition to Reconsider Aslab 810601 Order Denying Intervenors' 810512 Request for Extension of Time to File Brief.Requests Aslab Investigation Into NRC Failure to Serve NRC Response to Intervenors' Request.W/Certificate of Svc ML20004B6321981-05-21021 May 1981 Response to G Fernos & Citizens for Conservation of Natural Resources Notice of Appeal & Request for Extension of Time to File Brief.Opposes Delay in Filing.Leave to File Appeal Granted Earlier.Certificate of Svc Encl ML20003J3821981-04-25025 April 1981 Response Opposing Applicant 810417 Response to Intervenor Petition for Temporary Stay & Extension of Time.Applicant Motion Lacks Support & Time to File Appeal Has Not Expired. Certificate of Svc Encl ML17328B0611981-04-17017 April 1981 Response Opposing G Fernos & Citizens for Conservation of Natural Resources 810406 Request for Stay of ASLB 810218 & 0326 Decisions & Petition for Extension of Time to File Appeal.Certificate of Svc Encl ML19347D9201981-04-0606 April 1981 Request for Extension Until 810515 to File Appeal & for Stay of ASLB 810218 & 0326 Orders Granting Applicant Withdrawal of Application W/O Prejudice & Denying Intervenor Petition for Reconsideration,Respectively.Certificate of Svc Encl ML19350B5271981-03-12012 March 1981 Answer Opposing G Fernos 810303 Request for Reconsideration of ASLB 810218 Order Granting Withdrawal W/O Prejudice of Util Application.Also Opposes Request to Stay Decision.No New Info Presented.Certificate of Svc Encl ML19347D2291981-03-0303 March 1981 Request for Reconsideration of ASLB 810218 Order Granting Application Withdrawal W/O Prejudice.Applicant Actions & Clear Lack of Necessity for Plant Demand That Dismissal Be W/Prejudice.Certificate of Svc Encl ML20002C0871980-12-31031 December 1980 Reply to Intervenor 801203 Submittal Stating Withdrawal Application Should Be Dismissed W/Prejudice.Accusation of Hidden,Deceitful Action Is Unsubstantiated.Proceeding Should Be Terminated W/O Prejudice.W/Certificate of Svc ML19351F1431980-12-0303 December 1980 Reply to Applicant & NRC Contention That Withdrawn Application Should Not Be Dismissed W/Prejudice.Urges That Application Be Dismissed W/Prejudice.Certificate of Svc Encl ML19351C8811980-10-0303 October 1980 Response in Opposition to Citizens for Conservation of Natural Resources Motion for Direct Certification Urging Dismissal of Application W/Prejudice.Future Applications May Not Be Barred Unless Public Harmed.Certificate of Svc Encl ML19332B4051980-09-18018 September 1980 Motion for Stay of Proceeding Until Commission Rules Upon Direct Certification Seeking Dismissal of Application W/ Prejudice.Certificate of Svc Encl ML19332B4041980-09-18018 September 1980 Addendum to 800917 Motion for Direct Certification Which Requested That CP Application Be Dismissed W/Prejudice. Applicant Withdrawal Evading Direct Confrontation W/Issues Raised & Litigated for 5 Yrs Is Unfair.W/Certificate of Svc ML19332B3971980-09-17017 September 1980 Motion for Direct Certification Requesting That CP Application Be Dismissed W/Prejudice Rather than Accepting Applicant Withdrawal Terminating Proceeding.Certificate of Svc Encl ML19332A9111980-09-13013 September 1980 Requests Commission Take No Action Re ALAB-605.Intervenor Must Present Case to ASLB Before Commission Acts to Review ALAB-605.Intervenor Counsel in Hosp Until After Commission Action Deadline of 800919.Certificate of Svc Encl ML19332A4911980-09-11011 September 1980 Motion for Termination of Proceeding Due to Encl Withdrawal of Application.Certificate of Svc Encl ML19332A4891980-09-11011 September 1980 Motion for Withdrawal of Application for CP ML19332A1801980-09-0303 September 1980 Motion Advising of Temporary Substitution of Author.Requests Incorporation of T Morales on Svc List in Absence. W/Certificate of Svc ML19331D9071980-08-27027 August 1980 Motion for Clarification of Scope of Single Issue to Be Tried in ASLB 800819 Order Re Intervenor 800430 Petition on Lack of Intention to Build.Draws Attention to Util Inaction & Contradictory Actions.W/Certificate of Svc ML19331D9091980-08-27027 August 1980 Motion for Ruling on Intervenor 800718 Submission Seeking Legal Assistance During Hearings Plus Round Trip Travel & Lodging Expenses for Counsel.Certificate of Svc Encl ML19331B7341980-08-0404 August 1980 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 ML19321A5071980-07-18018 July 1980 Response to NRC 800627 Memorandum,In Reply to Aslab 800630 Order.Interlocutory Review of ASLB Order Re Dismissal of CP Application W/O Hearing on Health,Safety & Environ Is Not Warranted.Certificate of Svc Encl ML19321A6281980-07-18018 July 1980 Memorandum in Response to Aslab 800604 Order Re Validity of ASLB 800529 Order Denying Petition to Intervene.Urges Reversal of ASLB Order & Institution of Hearings. Certificate of Svc Encl ML19320C2721980-07-0909 July 1980 Motion Seeking Option to Respond to Applicant by 800808,if Applicant Responds to NRC 800627 Memorandum by 800718,re Aslab 800630 Order.Certificate of Svc Encl ML19320A7771980-06-27027 June 1980 Memorandum in Response to Aslab 800604 Order.Interlocutory Review of ASLB Order Denying G Fernos Petition to Dismiss Application Not Warranted Unless Legal Boundaries Are Not Explored.W/Certificate of Svc ML19312E9181980-05-19019 May 1980 Response in Opposition to Intervenor G Fernos 800430 Request for Issuance of Order to Show Cause Why Application Should Not Be Dismissed.No Time Frame Requirememts Exist for License Processing.W/Certificate of Svc ML19318A2771980-04-30030 April 1980 Petition Urging ASLB to Hold Evidentiary Hearings to Request Applicant to Show Cause Why Application Should Not Be Dismissed Due to Lack of Intention to Build.Requests Costs & Damages.W/Certificate of Svc & Supporting Documents 1982-01-06
[Table view] |
Text
1 l
r ,
I p.
UNITY,D STATES OF AMERICA
. ,_NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of ) Docket No. 50- 7 6
'D
) # g PUERTO RICO ELECTRIC POWER ) s \
AUTHORITY ) /3 C ~. . '
North Coast Nuclear Plant, June 29, 1981 y)M 3 0 M' ,
(Unit 1) ) ,o_4
. ) \ j
> p 1
Authority's Response in Opposition to Intervenors' '
f"M
" Motion to File Sworn Statemerits' On June 13, 1981, Gonzalo Fernos and Citizen:; for tha Conservation of Natural Resources, Inc. (Interveners) filed a
" Motion to File Sworn Statements from Owner-Residents of the Islote Nuclear Plant about Damages Inflicted upon Them by Ap-plicant" (Motion). The Puerto Rico Electric Power Authority (Authority) hereby files its response in opposition to the Motion, t
Intervenors see'., in effect, to reopen the record upon l
l which the decision by the Licensing Board permitting withdrawal l
without pr: judice of the subject application was reached. "As is well settled, the proponent of a motion to reopen the record has a heavy burden." (Kansas Gas and Electric Co. et al. (Wolf Creek Generating Station), AIIB-462, 7 NRC 320, 338 (1978),
citing Duke Power Co. (Catawba Nuclear Station), ALAB-359, 4 -
NRC 619, 620 (1976).) Intervenors fail to discharge that " heavy burden." o3 3 s -
oft 8107 02 0 27J C, _
The usual stiandard for evaluating such a request is well defined: the request must be timely and addressed to a signifi-cant safety or environmental issue. (Kansas Gas and Electric Co., supra; Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-138, 6 AEC 520, 523 (1973);
Georgia Power Co. (Alvin W. Vogtle Nuclear Plant) , ALAB-291, ,
" it must be established th ;
2 NRC 404, 409 (1975).) Finally,
'a different result would have been zeached initially had [the material submitted in support of the motion) been considered.'"
} (Kansas Gas and Electric Co., supra, quoting Northern Indiana i Public Service Co. (B' Llly Generating Station, Nuclear-1) ,
ALAB-227, 8 AEC 416, 418 (1974).)
Intervanors seek to present eight sworn statements by per-sons who own land and/or reside in the vicinity of the site which was proposed by the Authority for the North Coast Nuclear Plant. They are offered "as evidence of the sort of damage to public interest which would be caused and would remain latent if Applicant's application dismissal without prejudice were to be sustained in appeal." (Motion, p. 1.) -
i We assume for present purposes that the question of whether the application is dismissed with or without prejudice is "sig-nificant" and turn to the nature of the evidence sought to be introduced. We submit that the statements now offered clearly -
wotild not have prompted the Licensing Board to order dismissal with prejudice.
4 ww - - -m .-n m-gr ,--,n -~~,,,-,,.-.n---,.-,-e-,---mn, , - - - - , - . , . -,..-,,m-e em,_ ,, .,,.-we--- -e-w-
,.7..*... ,
4 3-The sworn statements / may be categorized as follows:
A. My' land was expropriated. I did not agree with the expropriation or the appraisal and I did not accept the money awarded by the court. I understand that the Authority may still build a nuclear plant at the site. (Daniel Reyes Olmo, Mariano Rojas Natal)
B. Incorporaces A above and adds: I have lived on the land for a long time. Another expropriation "would jeopardize me and would compel me to abandon the community . . . .
(Jesus Reyes Olmo, Luis Roman Rojas, Illuminado Rios Reyes, Jose Antonia Rios Rojas)
C. My sister died in 1974. Her death "was caused by the
- way in which the Water Resources Authority (WRA) acted when expropriating the property in which she lived."
(Mariano Rojas Natal)
D. As a result of actions of the Authority "I suffered substantial damages." I.e., I lost some cassava crop because equipment passed over the planted field; I had to stop building a house; I had to pay penalty and in-terest on property taxes I paid late because I had been i
told the land would be expropriated. (Almaranto Rojas Robles)
The Authority, of course, does not concede th., validity or '
accuracy of any of the allegations made in the statements.
(
__-..q__ mm, -m ,-.--a - _ _ _ , _ _m .__,a y c,__---,.,_.g-,.--4,g y*-+g.y,w_r.,..p- 3.%~,.y, , + ,,,wm-9.%p,+w,m ,_ _,.,-pa..ye
In substantial'part, the factual allegations in these statements are irrelevant to consideration of whether to dis-miss with or without prejudice. As the Licensing Board recog-nized in making its determination, there are two factors to be considered:
Will intervenors suffer some prejudice "other than T.te mere prospect of a second lawsuit" if the application is withdrawn without prejudice?
Will "the public interest" be preju-diced if the application is withdrawn without prejudice?
(Memorandum and Order, pp. 4-6 (February 18, 1981).) The sworn statements contain nothing which would lead one to answer either question affirmatively. Viewed most favorably to Intervenors, only the Category B statements are useful and they complain of the " mere prospect of a second lawsuit." This is not sufficient to warrant dismissal with prejudice. (Jones v. SEC, 298 U.S. 1, 19 (1936); see Boston Edison Co. (Pilgrim Nuclear Generating Station, Units 2 and 3), LBP-74-62, 8 AEC 324, 327 (1974), and cases cited by the Licensing Board in this proceeding, LeCompte i
- v. Mr. Chip, Inc., 528 F.2d 601 (5th Cir.19's 6) ; Holiday Queen
\
l Land Corp. v. Baker, 489 F. 2d 1031, 1032 (5th Cir. 1974), re-lying on Durham v. Florida East Coast Ry. Co., 385 F.2d 366 l
(Eth Cir. 1967).) The remainder of the allegations are insub-stantial and/or irrelevant. Nothing in any ctatement casts doubt on the Board's conclusion "that the public i.,terest would l
y -
w -
--y,, -- % , p -- -.
y%-.g.- - - - - - -- sy- ---y.,s-- yr, ,.mq- ,-- -.- -wy ,,------.i- -
best be served by le'aving open to the Applicant the nuclear J l
option should changed circumstances warrant." (Memorandum i and Order, p. 6 (February 18, 1981).) .
Finally, the request for admission of the statements is not timely and Intervenors now seek to raise a matter which Faviously should have been presented to the Licensing Board. /
The question of whether the Authority's application for a con-i
! struction permit is to be withdrawn (or dismissed) with or with-out prejudice first became an issue more than one year ago when Intervenors requested an " order dismissing the . . . application with prejudice . . . ." (Petition Requesting Evidentiary Hear-ings to Request Applicant to Show Cause Why Their Application Should Not Be Dismiused for Lack of Intention to Build, p. 4 (April 30, 1980).) Their request was renewed promptly after the Authority, on September 11, 1980, sought to withdraw its appli-l cation and requested termination of this proceeding.
. . . Intervenors respectfully pray the Honorable Commission for a direct certi-fication . . . ordering either the dis-missal of the application with prejudice or else that the proceedings not be ter-minated until after evidentiary hearings are conducted to enable the Licensing Board to know the full facts why the dis-missal cannot be less than with prejudice.
- / The Appeal board " ordinarily will not entertain an issue
~
raised for the first time on appeal." (Tennessee Valley t
Authority (Hartsville Nuclear Plant), ALAS-463, 7 NRC 341, 348 (1978).)
. 1 (Motion fer Direct Certification to Request Application Be Dismissed with Prejudice, p. 2 (September 18, 1980).) /
Intervanors have thus long argued that the Licensing !
Board should dismiss the Authority's application "with preju- ;
dice." Their views were rejected by the Board. Only now do Intervenors seek to introduce evidence in the forn of statements
- / We note also that Intervenors have repeatedly endeavored to find a theory and facts upon which to base their pleas for dismissal with prejudice. They began by alleging that dismissal without prejudice would be " extremely unfair" to them. (Addendum to Motion for Direct Certification,
- p. 1 (September 13, 1980).) Later they alleged that dis-missal with prejudice is warranted because of " hidden, deceitful action committed by the Applicant" in failing to advise the Licensing Board and parties of its decision not to pursue expropriation proceedings. (Intervenors' Reply to Applicant's and NRC Staff's Contentions that North Coast Nuclear Plant's Withdrawn Applications Should Not Be Dismissed with Prejudice, p. 5 (December 3, 1980).)
This theory was rejected by the Licensing Board (Memorandum and Order of February 18, 1981) but pursued by Intervenors in a Petition for Reconsideration (March 3,1981) which was denied (Order of March 26, 1981.) Intervenors then turned to the Appeal Board and alleged for the first time chat residents and land owners of the site area might be concerned tbout dismissal without prejudice. Intervenors requested time to " investigate the situation among those landowners." (Application for a Temporary Stay, p. 3
. (April 6, 1981).) The reason next cited for dismissal with prejudice was an investigation into alleged corruption in l the Authority by the Department or Justice of Puerto Rico.
[
(Intervenors' Response to Applicant's Motion of April 17, 1981, p. 3 (April 25, 1981).) That argument has twice i been rejected by the Appeal Board (Order of June 1,1981, l and Memorandum and Order of June 11, 1981). Intervenors new seek to have sworn statements admitted.
l
4
- 7- l l
from owner / resident's. The request is therefore not timely and should be denied for that reason alone.
Intervenors have failed to justify reopening of the record.
Their Motion to File Sworn Statements should be denied.
Respectfully submitted, o t@JA Kathleen u. Shea LOWENSTEIN, NEWMAN, REIS
& AXELRAD 1025 Connecticut Avenue, N.W.
Washington, D.C. 20036 (202) 862-8400 I
i
, , , _ _ , , . . . . . . . - . , . , , , , , . _ , , . , , , , , , , . _ . , _ , , . ,