|
|
Line 56: |
Line 56: |
| l decision is necessary to prevent detriment to the public interest or unusual delay or expense." Seabrook, supra, at 483. Directed certification "is to be resorted to only in l | | l decision is necessary to prevent detriment to the public interest or unusual delay or expense." Seabrook, supra, at 483. Directed certification "is to be resorted to only in l |
| exceptional circumstances." Consumers Power Co. (Midland Plants, Units 1 and 2) , ALAB-382, 5 NRC 603, 606 (1977). Directed certification will not be granted unless the Licensing Board has had a reasonable opportunity to decide the matter for which certification is requested. Toledo Edison Co. (Davis-Besse Nuclear Power Station), ALAB-297, 2 MRC 727, 729 (1975). | | exceptional circumstances." Consumers Power Co. (Midland Plants, Units 1 and 2) , ALAB-382, 5 NRC 603, 606 (1977). Directed certification will not be granted unless the Licensing Board has had a reasonable opportunity to decide the matter for which certification is requested. Toledo Edison Co. (Davis-Besse Nuclear Power Station), ALAB-297, 2 MRC 727, 729 (1975). |
| The Intervenors seek to have the Authority's applica-tion dismissed "with prejudice." ! By that, we understand them to seek to prevent termination of the proceeding by the Li-censing Board in a manner which would leava "the door . . . open | | The Intervenors seek to have the Authority's applica-tion dismissed "with prejudice." ! By that, we understand them to seek to prevent termination of the proceeding by the Li-censing Board in a manner which would leava "the door . . . open to Applicant to pursue the nuclear plant construction permit at a future date." (Addendum to Motion for Direct Certification, i |
| ;
| |
| to Applicant to pursue the nuclear plant construction permit at a future date." (Addendum to Motion for Direct Certification, i | |
| : p. 1) However, they f ail to explain why they cannot simply | | : p. 1) However, they f ail to explain why they cannot simply |
| -3/ To the extent that the Intervenors alternatively seek that l the Commission direct the Licensing Board to hold eviden- i i | | -3/ To the extent that the Intervenors alternatively seek that l the Commission direct the Licensing Board to hold eviden- i i |
Line 97: |
Line 95: |
| 3 course." | | 3 course." |
| 298 U.S. at 22 (emphasis added) . | | 298 U.S. at 22 (emphasis added) . |
| ;
| |
| For all of the foregoing reasons, the Motion for Directed i certification should be denied. | | For all of the foregoing reasons, the Motion for Directed i certification should be denied. |
| Respectfully submitted, l | | Respectfully submitted, l |
|
---|
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
y.
' a 4
/, O {n UNITED STATES OF AMERICA [)
p u
OCp~sN#C BEFORE THE NUCLEAR REGULATORY COMMISSION a
6 Q k-e
In the Matter of ) _
/,
)
PUERTO RICO ELECTRIC )
POWER AUTHORITY ) Docket No. 50-376
)
North Coast Nuclear Plant, )
(Unit 1) )
AUTHORITY'S RESPONSE TO MOTION FOR DIRECT CERTIFICATION On September 11, 1980, the Puerto Rico Electric Power Authority (the "Authortity") filed with the Atomic Safety and Licensing Board and all parties its " Withdrawal of Application" in this docket and a " Motion for Termination of Proceeding."
On September 18, 1980, the NRC Staff filed the "NRC Staff's Answer to Motion of Applicant to Withdraw Their Application," in which it stated that it did not oppose the Authority's motion.
The Authority has not received an answer to the Motion for Termination of the Proceeding from the intervenors in this proceeding, Mr. Gonzalo Fernos and the Members of Citi-zens for the Conservation of Natural Resources, Inc. (col-lectively the "Intervenors"). However, the Intervenors have filed with the Commission a " Motion for Oirect Certifica-tion to Request Application be Dismissed With Prejudice" and b
+% 1 8010 080 273 h
l
, l an " Addendum to Motion for Direct Certification" (collec-tively, the " Motion for Directed Certification").b!
\ l I
In the Motion for Directed Certification, the Inter-l venors request that the Commission order either that the )
Authority's application be dismissed with prejudice or that I 1
the proceeding not be terminated until after evidentiary I hearings are conducted "to enable the Licensing Board to know the full facts why the dismissal can .ot be less than with prejudice." (Emphasis in original.)
The Authority respectfully requests that the Motion for Directed Certification be denied in all respects because such motion is procedural.'.y defective and does not satisfy appli-cabis requirements for directed certification and because the relief requested is without merit.
The Authority does not question the Commission's plenary power to undertake interlocutory review, at its discretion, of matters under consideration in a proceeding pending before a Licensing Board. However, consideration by the Commission of the Motion for Directed Certification under the current cir-cumstances in this proceeding would be both without support in 1/ Intervenors also Jiled a motion with the Licensing Board requesting that the proceeding be stayed until 15 days after the Commission rules on the Motion for Directed Certification.
e ==
3-Commission regulations and precedent and contrary to or-derly administrative practice.
Although the Commission regulations do not explicitly provide for the filing of motions for directed certification, it is now well established that such a motion is a procedure available to a party to a Licensing Board proceeding under 10 CPR S 2. 718 (i) . Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-271, 1 NRC 478, 482-83 (1975). However, since 10 CFR S 2.785 (b) assigns to the Appeal Board the functions and authority of the Commis-sion under a number of regulations (including S 2.718 (i)) ,
any motion for directed certification should have been filed
- with the Appeal Board.-2/Accordingly, the Motion for Directed Certification should be denied as improperly filed.
In addition, even if the Motion for Directed Certification had been filed with the Appeal Board--or were referred by the Commission to the Appeal Board--it should be denied for failing to satisfy applicable requirements. A party seeking directed certification must establish, at a minimum, that referral of the matter by the Licensing Board to the Appeal Board under 10 CFR S 2.730 (f) would have been proper, i.e., a " prompt
~2/ It is possible that 10 CFR S 2. 785 (d) provides a basis for filing with the Commiss an a motion for directed certification as to a matter pending before an Appeal Board. However, such section does not pertain to matters pending before a Licensing Board.
e,-
l decision is necessary to prevent detriment to the public interest or unusual delay or expense." Seabrook, supra, at 483. Directed certification "is to be resorted to only in l
exceptional circumstances." Consumers Power Co. (Midland Plants, Units 1 and 2) , ALAB-382, 5 NRC 603, 606 (1977). Directed certification will not be granted unless the Licensing Board has had a reasonable opportunity to decide the matter for which certification is requested. Toledo Edison Co. (Davis-Besse Nuclear Power Station), ALAB-297, 2 MRC 727, 729 (1975).
The Intervenors seek to have the Authority's applica-tion dismissed "with prejudice." ! By that, we understand them to seek to prevent termination of the proceeding by the Li-censing Board in a manner which would leava "the door . . . open to Applicant to pursue the nuclear plant construction permit at a future date." (Addendum to Motion for Direct Certification, i
- p. 1) However, they f ail to explain why they cannot simply
-3/ To the extent that the Intervenors alternatively seek that l the Commission direct the Licensing Board to hold eviden- i i
tiary hearings, there is clearly no warrant for imposing such a burden on the parties and the Licensing Board. In-tervenors have raised no issue -- nor is there any issue reasonably associated with termination of the proceeding as requested by the Authority -- that cannot be resolved under the Commission's motion practice. l l
^
seek such objective before the Licensing Board and, if they later deem themselves aggrieved by the Licensing Board's ulti-mate actions, then pursue their normal administrative appeal.
In other words, they have provided no basis for any determination that a prompt decision is necessary, or that any exceptional cir-cumstances exist that would warrant directed certification, or that there are any circumstances that preclude them from pursuing their objectives with the Licensing Board for a ruling in due course.1/
Finally, even if the Motion for Directed Certification were to be considered by the Commission or the Appeal Board, it should be denied because the relief sought is without merit.
Intervenors apparently seek the Commission to direct that any order of the Licensing Board terminating this proceeding pur-suant to tne Authority's motion of September 11, 1980, include a condition foreclosing the Authority from filing a new applica-tion at a future diite. Whether or not a Iicensing Board may have the authority to impose such a condition,5/ there is no basis for 4/ Any relief sought by the Intervenors--regardless of merit--could, of course, have been requested in their answer to the Authority's Motion for Termination of Proceeding.
1/ It is questionable whether, in terminating a proceed-ing, the Commission could impose conditions unrelated to health and safety considerations or to environmen-tal aspects of any actions previously authorized. In instances such as the present proceeding, where no Limited Work Authorization or Construction Permit was issued, and thus no on-site work was performed, it is difficult to conceive of a basis for the imposition of any conditions upon termination.
l l
its imposition in this proceeding. Clearly, no future appli- l l
cation for a construction permit would be filed by the Authority l l
or any other utility unless it determined that the nuclear plant !
l was necessary to provide for the needs of the public that it l serves, and no construction permit would be granted unless all j applicable regulatory requirements were satisfied. Thus the i 1
public interest would be adversely affected if the Commission )
were to impede the filing of subsequent applications at the present time, when the future circumstances that might warrant suci applications cannot be known or considered.
In light of the importance of not prejudicing the future ability of a utility to provide needed services to the public, I another Licensing Board has held that foreclosure of future applications could not be imposed unless it is shown that denial of such relief would prejudice the public interest. )
i See Boston Edison Co. (Pilgrim Nuclear Generating Station, l l
Units 2 and 3) , LBP-74-62, 8 AEC 324, 327 (1974). There, j 1
the intervenors sought to have the dismissal of an applica-tion conditioned with a prohibition of the filing of a new application for a term of years. F.ecognizing the public interest in the construction of future plants for which there i l
is a public need, the Board refused to impose such a condition stating that, "it would be unreasonable in the extreme to deprive the public of a needed utility service because of ;
l alleged ' inconvenience or burden' to potential intervenors."
l 4
I l
l
)
. Its discussion referenced Jones v. Securities and Exchange Commission, 298 U.S.] (1936) where the Supreme Court stated, citing numerous cases:
"The general rule is settled for the federal tribunals tha*. a plaintiff posserses the unqualiried right to dismiss his complaint at law or his bill in equity unless some plain legal prejudice will result to the defendant other than the mere pros-pect of a second litigation upon the subject matter."
298 U.S. at lf (emphasis added) .
As in Pilgrim, Intervenors here have not shown any prej-udice to the public interest if the Authority's Motion for Termination of Proceeding is granted without the foreclosure of future applications. Impliedly, the only prejudice to In-tervenors is that they may be faced with the need to contest a new application for a construction permit, if one were filed in the fut'ure. The speculative possibility of such potential inconvenience to the Intervenors is scarcely sufficient to out-weigh the prejudice to the public interest if the Commission were now unwarrantedly to preclude subsequent applications.
Any such arguments by the Intervenors would be contrary to the judicial authority discussed in Jones, which led the Court to conclude that " plainly enough, under the decisions of this court, the doctrine that dismissal must be granted if no prej-udice is shown beyond the prospect of another suit, . . . is I
applicable, and the withdrawal shoulJ have been allowed as of
3 course."
298 U.S. at 22 (emphasis added) .
For all of the foregoing reasons, the Motion for Directed i certification should be denied.
Respectfully submitted, l
--J .
Lowenstein, Newman, Reis, Axelrad & Toll 1025 Connecticut Avenue, NW Washington, D.C. 20036 (202-862-8400)
October 3, 1980 l
l
)
1 i
i
\
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE NUCLEAR REGULATORY COMMISSION ;
In the Matter of )
)
PUERTO RICO ELECTRIC POWER )
AUTHORITY ) Docket No. 50-376
)
North Coast Nuclear Plant, )
(Unit 1) )
CERTIFICATE OF SERVICE I hereby certify that copies of the Authority's Response To Motion For Direct Certification dated October 3, 1980, were served on the following by deposit in the United States mail, first class and postage prepaid, this 3rd day of October, 1980.
John F. Ahearne, Chairman Mr. Gustave A. Linenberger U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D.C. 20555 Board U.S. Nuclear Regulatotf Victor Gilinsky, Commissioner Commission i U.S. Nuclear Regulatory Commission Washington, D.C. 20555 l Washington, D.C. 20555 3enry J. McGurren, Esq.
Joseph M. Hendrie, Commissioner Office of the Executive U.S. Nuclear Regulatory Commission Legal Director Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Peter A. Bradford, Commissioner Washington, D.C. 20555 U.S. hoclear Regulatory Commission Washington, D.C. 20555 Secretary of the Commission U.S. Nuclear Regulatory Sheldon J. Wolfe, Esq., Chairman Commission Atomic Safety and Licensing Board Washington, D.C. 20555 U.S. Nuclear Regulatory Commission (Original,and 2 copies)
Washington, D.C. 20555 Attention: Docketing and Service Section Dr. Richard F. Cole Atomic Safety and Licensing Board German A. Gonzalez U.S. Nuclear Regulatory Commission Mission Industrial Washington, D.C. 20555 GPO Box 20434 l
Rio Piedras, PR 00925