ML19321A628

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

ML19321A628
Person / Time
Site:	05000376
Issue date:	07/18/1980
From:	Fernos G CITIZENS FOR THE CONSERVATION OF NATURAL RESOURCES, IN
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
NUDOCS 8007230791
Download: ML19321A628 (11)

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18 July,1980

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UNITED STATES OF AMERICA NUCLE AR REG ULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD ( ASLAB ')

• In the Matter of PUERTO RICO POWER

• DOC KET NO. 50- 376

• AUTHORITY (POWER COMPANY) ,

Applicant

• Proposed North Coast

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• Nuclear Plant ( Unit 1 )

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GONZALO FERNOS, PRO SE, ET AL. ~

• slote Word, Arecibo, Puerto Ric

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Interwnors

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INTERVENORS' MEMORANDUM IN RESPONSE -

' Jul.2 21980 > 7; TO APPEAL BOARD ORDER OF JUNE 4,1980 Officeof thah '

00 &segco TO THE HONORABLE APPEAL BOARD : g '

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. COMES NOW the undersigned Intervenor, Pro Se, and on behalf of Members'of Citizens for the Conservation of Natural Resources, Inc. ( CCNR ) hereinafter referred to os Intervenors

• and respectfully states, alleges and prays :

- 1NTRO DUCTIO N : On April 30,1980, Intervenors petitioned the ASLAB to hold evidentiary hearings in Puerto Rico " to Reouest Applicant to Show Cause Why Their Ap-plication Should Not Be Dismissed for Lock of Intention to Build." Applicant and NRC Staff opposed Intervenors' Petition. On May 29, 1980, ASLB issued order denying Intervenors' Peti-tion without reaching the merits alleging lack of authority to decide on the matter.

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• Applicant refers in their responses to only one Intervenor ( Gonzalo Fern 6s ), knowing that I he represents and is the spokesman for about 300 citizens of Arecibo, Members all of CCNR who I will be offected by decisions issued by the Licensing and Appeal Boards, and the U.S. Court of i l

Appeals, if deemed necessary. Intervenors do not pretend to represent the entire population of Arecibo ( over 40,000 inhab9 ants ), but no doubt, if a referendum has to be corried out over

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the issue of the Nuclear Plant, the vast majority would vote against the siting of it in that com-munity. There is no controversy about the existence of such strong oppo>ition. In fact, it was I

, evident during 1976 gubernetorial elections when both main contenders promised the electorate

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of Arecibo that if they were elected they would rule cut the proposed Ncrth Coast Nuclear Plant .I '

there or elsewhere. Governor Romero-Borcel6 hcs not changed a bit his stand expressed in 1976.

8007280 7$/ MS DOCUMENT CONTAWS POOR QUAUTY PAGES 4 .

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Dock:t Ns. 50-376

• j 18 July,1980 I

. On June 4,1980, the ASLAB, suo sponte, questioned the validity of the ASLB's

'oforementioned position and thus, issued ORDER requesting Applicant and NRC Staff to furnish )

k. the ASLAB by memorando with their views on the matter to be filed and served by June 27,1980.

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Applicant and NRC Staff's Responses were received by Intervenors on July 3 and 7,1980, respect-ively. The NRC Staff's Response of June 27, 1980 has been a turnabout from its previous p6sition.

Now it states that such hearings as requested by Intervenors should be held.

. On June 30, 1 980, the ASLAB issued ORDER granting Applicant until July 18, 1980, to file a response to NRC Staff Memorandum of fune 27, 1980, if Applicant so desired. Conse-

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quently, on July 9,1980 Intervenors requested the ASLAB to grant them until August 8,1980 to

- file o response to Applicant's Response, if they choose to respond.

. NRC Stoff Memorandum *of June 27, 1980, is thorough and well supported by statutes, regulations and case low that at first sight a response from Intervenors seems. etnecessary. Unless

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Applicant succeeds in destroying the substantive arguments presented by the NRC Staff- a very doubtful probability--it appears that the ASLAB will reverse the Licensing Board ORDER dated May 29,1980, and that eventually the ASLB will conduct evidentiary hearings on Intervenors'

p. pleading " treated as a motion to compel withdrawal of the opplication for Applicant's abandon-ment of intent to use the construction permit sought." To hold evidentiary hearings under present circumstances , however, presents a serious financial difficulty to Intervenors unless NRC or Appli-cant picks up the tab for legal fees during hearings including transportation and lodging of counsel for intervenors. Otherwise, due process may be impaired, unless on alternate relief is provided in lieu of evidentiary hearings. This is a situation of which intervenors were not fully owere when the show cause petition was filed. Of course, if the Appeal Board 'and the Licensing Board compel

'intervenors to litigate this case under the present circumstances we would not evade the challenge, even though it would be like o Dov:d vs. L,ohath onte21. Be it a:, it rev be, x, doubt that these

is a need for o viable r,olutionio ::uch di!cwr.c. la mrch of ih:t solution this memerandum is dirc:ted<

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Docket Na. 50-376 18 July,1980 i

• e CIRCUMSTANCES OF THIS CASE WHICH WERE NOT FORSEEN WHEN ENACTING NRC STATUTES, REGULATIONS AND RULES OF PRACTICE : 1 e I

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The Atomic Energy Act of 1954,42 USC 12239, et seq. and NRC Rules of Practice, I

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10 CFR 12.100, et seq., with regard to licensing the construction of nuclear plants, are con-strued bearing in mind that the Licensing Board generally deals with privately owned power companies. Thus, the " ever presence " of the state government in licensing proceedings, as

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the protector of the public interest vis-a vis the interests of the power company,hos generally

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been token for granted. In the case of Puerto Rico, however, the power company--Puerto Rico l

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Electric Power Authority ( hereinofter referred to os the Applicant )--is a government owned l

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public corporation. That is, the power company and the government, for all practical purposes, l

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merge here in one sole entity. Consequently, Intervenors, lacking the proper resources--tech-

, nological, financial and otherwise --are alone in the defense of public interest, save the fact that the intervenors' stand against the siting of any nuc%or plant in Puerto Rico is officially supported by the Office of Energy of Puerto Rico, as reflected by its publication in June,1979 :

" The Energy Policy of Puerto Rico" ( EXHIBIT "E" of the show cause petition ). In spite of this established governmental policy concerning nuclear plants, Applicant seems to be oblivious of

( Footnotes of preceding page.)

• NRC STAFF Memorandum of June 27, 1980, quotes Applicant's Response of May 19,1980 on page 6 without checking for acci.rocy of the quotation ( See EXHIBIT "C" of Interrenors' Peti-tion of April 30, 1980). In citing the alleged omitted sentence, Applicant deliberately omits the second part of the mntence which states: "but u for the next major addition to generating co-pacity, considerations of both scale and timing rule it [the nuclear option) out."(Emphasis added.)

• The Licensing Board should be empowered, as courts are, to treat Intervenors in forma pauperis.

Intervenors' current bank account has only $109.12. Because no one any longer believes that there is an imminent threat that a Nuclear Plant will ever bu ou!ir in Puerto Rico, there are no hopes of roising funds through public contributioris. Further.r. ore, as the ASL/ B :nny hue observed, it has been difficult to maintain the int.tnnt cee % of W.bc Oten cctnal fe. Applicoat and the undersigned Intervenor, c !cymen. It itsr.u, theN f o:c, bt the couse cf justic in a qvcsi-judiciel forum would be, as in c coast of Jes? ice, bettet terved if hcth porties werc :spresorted by lawyers .

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• Dock:t Na. 50-376 18 July,1980 this reality. Theoretically there should not be o given situation in which one arm of the Govern-

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ment ( Applicant ) disagrees totally with another arm ( Office of Energy of Puerto Rico ), but 1 that is just what we have on hand now before the Honorable Appeal Board.

. Since Applicant through the Department of Justice of Puerto Rico exercised its pre-rogotive of expropriating the land necessary to site the proposed nuclear plant, it perforce follows that once o decision was taken to turn over the land to its original owners, there could not possibly be any serious intention to build the nuclear plant, unless on alternate suitable site was being contemplated. Applicant ought to clarify the inconsistency presented : On one hand it pursues the application for constructing a nuclear plant ond on the other it is getting rid of the land for siting the same. Without the land, obviously no nuclear plant con be built, unless by some secret formula or miraculous feat Applicant expects to condensate the project down to a pocket size that con be sited anywhere. Therefore, the thrust of the controversy before the ASLAB ond ASLB is no't "that the application should be dismissed because it is presently inactive" ( Page 8, 2nd paragraph of Applicant's Response of May 19,1980), but whether Applicant has or has not obtained from the Court of Expropriation of Puerto Rico o reversal of the expropriation already granted for the land in question. If it con be proven that Applicant has no site on hand or foreseen on which to build the nuclear plant at any future date, its action of returriing the land to its original owners without seeking on alternate site replacement, is tantamount to an implicit with-drawal of the opplication, thus, the case should be dismissed without any further odo.. It is highly doubtful that once the expropriated land has been reverted back to its original owners. Applicant con justify instituting contradictory tactics by means of reexpropriotion proceedings, that is, to take

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the land back for a second time. No one in his sone mind expects the Government of Puerto Rico

or its instrumentalities to engage in such back-or.d-forth-actions unless these is a sound reason to L do so. Assuming for the x la d argure.aa:a:ic.t .%: ad. c.,ction t.i re:ur.09 ;he land to its crifnd f

owners while pursuing ths licensi ng coplication before tr o ASLB could be justified, it would be k

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• Docict Ns. 50-376 18 July,1980

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totally unfeasible. By the time a second expropriation took place, if ever Applicant decided to n build the nuclear plant, the land value with its continuous development would have increased several folds its original expropriated value. Besides the fact that for obvious political reasons the Government of Puerto Rico would not consent to relocating the increasingly larger number of families then living there, the population density of the area may have increased considerably beyond the NRC permissible density established under guidelines of 10 CFR Part 100. No matter what the site guidelines requirements say, the only way that on early site review makes any sense is when the Applicant has the means to freeze the future development of the site until it is ready to build the nuclear plant. In Puerto Rico the only way that this could be accomplished is by holding title to the land. Since Applicant is in the process of reverting the expropriated land to its original owners, thus losing control of the future development of the area, the Site Safety

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Evaluation Report prepared by the NRC Staff on April 27, 1979, has become moot.

e it is deemed necessary to clarify that of the total 39 cases of expropriation instituted by the Government of Puerto Rico on behalf of the Applicant, only 5 cases (less than 13 percent )

are pending adjudication by the Court of Expropriation. Those 5 cases are : E 74-1019 ( hearing i set for September 16,1980 ) ; E 75-578 ; E 75-582 ; E 75-899 ; and E 75-905. It is to be noted that in case E75-578 the Court of Expropriation by voice of the Hon. Domingo Rofucci ruled as follows :

" The Court will not set this case for hearing again until there is a solution in public policy as to how to deal with the neighbors of Islote Ward of Arecibo that were object of an expropriation that now has no public use whatsoever

, for the a;.roprioting agency." ( Translated from the original

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in Spanish )

e in case E 75-899, there is a letter from Jos6 F. Irizarry, Esq., Legal Counsel for

Applicant addressed to Rafael A. Pons del Valie. Esc.., of +he Deperrment of Justice, Land Matter Division, dated Decen hu 4,1979, which stales that tim App !.: ant is wi; ling :o erant e 15 pe cer;

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discount as indemnification for having desisted from validotirq the expropriotions already granted l

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• Dockat No. 50-376 18 July,1980 by the Court to those original land owners who return the money to Applicant in exchange -

1 for reacquiring title of the expropriated land. Also, the Applicant is offering a convenient y- installment plan to the original land owners to pay the money back to the Applicant in order E to facilitate the recovery of the land back to them.

g . Intervenors wish to emphasize that Applicant is twisting the arguments raised by Intervenors in a futile attempt to give the impression that our objection is centered around the inoction by Applicant during the last four years and their having " decided to defer construction" indefinitely. No where in our Petition ( Motion of April 30,1980 ) does it appear that we allege

. " inaction" and " deferrol " os the basis of our request for a show cause hearing. Intervenors' re-quest is predicated on specific facts clearly spelled out , which are :

.1.- The reversal of expropriations of land to site the nuclear plant constitute facie evidence of lack of intention to build such plant.

. 2.- The write down of most of the money Applicant invested on the ill-fated Nuclear Plant as shown on their Financial Statement of October 18, 1979.

. 3.- The ruling out of nuclear power in the Interim Report of the Committee on Energy Alternatives for Puerto Rico by the National Academy of Science dated 1979.

. 4.- The raising of serious doubts about the use of nuclear energy in Puerto Rico because of the many unanswered questions related to such techonolgy, as re-ported by the Office of Energy of Puerto Rico in its document dated June,1979, ,

entitled : " Energy Policy of Puerto Rico." i

. 5.- The discording of nuclear energy amongst the various sources of energy contem-plated for the future, os indicated by the Governor of Puerto Rico on his Report i to the Legislature on January 31, 1980.

l Furthermore, our show cause petition clearly states : " Documents made available to the l

Intervenors prove conclusively that Applicant had dropped its intention to build North Coast i i

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Nuclear Plant ever since August 5,1976." ( Intervenors' Petition of April 30,1980, page 1.) l l

Yet, Applicant has failed to satisfactorily centest any of the aforementiond arguments raised '

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'e Now, if the Honorable Appeal Board lets us. Intervenors would like to oddress Note 3

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of the Appeal Boardi s ORDER of June 4,1980, which states :

! " We recognize that there is a dispute among the parties respecting

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whether the applicant has abandoned the project or, rather,'merely

} deferred it." ( Footnote 3, page 4 of ASLAB Order of June 4,1980.)

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lt is to be noted that neither responses by Applicant dated %y 19,1980 and June'27,

$ 1980, attempt to dispute Intervenors' ollegation that Applicant has completely abor.doned their s

intention to build the North Coast Nuclear Plant at Arecibo, Puerto Rico or elsewhere. Th, only c

g contention that Applicant raises which comes closer to being colled a " dispute " is its footnote on s

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page 4 of Applicant's Response of Wy 19,1980, which incorrectly states :

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" The Intervenor states that "most of land" ocquired for the site by the

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Authority has been returned to the original owners._ This assertion is in-correct. The Authority has made the land available for reacquisition by

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the original owners but the owners have not chosen to take advantage of this offer."

The rest of both responses by Applicant is reduced to simple legalistic rhetoric of no

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substance which has litle bearing on the issues raised by Intervenors. Being as it is, such quasi j dispute could be easilysettledby just a simple process of discovery. Intervenors would welcome l

I the Appeal Board ordering a discovery proceeding prior te any hearing. Who knows if by such j meom the ASLB would be spared conducting costly bilingual hearings in Puerto Rico just to decide whether Applicant intends to build the Nuclear Plant or not in spite of the fact well known every-where, except at the NRC, that the Nuclear Plant for Puerto Rico is os dead as a corpse.

j- e. In the_ event that evidentiary hearings are conducted in Puerto Rico in the very near

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f future to enable the Licensing Board to inquire whether or not Applicant has abandoned its intention

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to construct the North Coast Nuclear Plant facility, it would be in order for the Appeal Board to l

advise the Licensing Board to treatlntervenors in forms pouperis and thus authorize payments from )

l NRC or Applicant's funds of fees anci tinvel exoenses of e legal counse! fer lxervenors chosen by

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the latter. -No doubt that tiu Appe.al Bad is full, ccgnirent of flie icci thai ihe undersigned

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Dock:t Na. 50-376 18 July,1980 Intervenor is not a lawyer and that his post personal clashes with counsel for Applicant, if re-curred, may not contribute . .to maintaining the prospective hearings free of further personal D

clashes which could obstruct the conduct of the proceedings. In view of this undesirable situ-otion and in consideration of the constitutional provisions guaranteeing due process and equal protection of the low, intervenors pray the Honorable Appeal Board to recommend to the ASt.B that they institute the means to provide legal counsel for Intervenors during the hearings includ-ing travel expenses from Washington, D.C. or New York and lodging in Puerto Rico.

. Now we address Applicant's allegation that "Intervenoris3 hafve] misstated the amount of any potential " loss" ( P.5 of Applicant's Response of May 19,1980). The reverse is true. If anyone has misstated f:noncial data it is the Applicant itself. Counsel for Applicant does not seem to know that " written down " means " loss ". Applicant hos misread the Financial Statement, p.1-12 ( EXHIBIT "Ba" of 'ntervenors ). Aside from the fact that such Financial

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Statement is not occurate in many aspects ; e.g., the " write down" by year omits without on explanation the year 1977. Applicant's Response of May 19,1980 stating that " total costs in-curred to-date with respect to the North Coast Nuclear Plant are $ 88,041,000, which include both equipment and site and licensing costs " is not correct. To that sum must be added the sums which appear in note (9) Other properties ; 5 44,280,000 for year 1978 and $ 22,638,000 for year 1979. The inclusion of those two figures is for the following reasons :

e 1.- Nuclear plant equipment and generating units have become obsolete and Applicant has failed to sell the some , .;,s they have to be written down.

e 2.- Generator held "for possible future use " must be written down also because it presents technical difficulties to fit into other types of generating plants.

e 3.- Land and laboratory building have to be written down also because neither

• hos any use for the Applicant and the land has been disposed of.

Furthermore, whether the ! css is $ 89,041,C07 or $154,959,000, the indisputable fact is that Netc (8) write dcwn ye:rs 1975 to 1979 != en cdn is. ion t'mt Apci!cen! ..o loager inter d4 i.

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Docktt Ns. 50-376 -_9 - _ 18 July,1980 to build the Nuclear Plant. The Applicant is really trying to make o fool of NRC, Bond Holders and Intervenors by stating in its Financial Report : (Intervenors' EXHIBIT "B2", show cause pet.)

" Costs incurred in connection with the licensing requirements, which in the opinion of monogement are of continued benefit to the development of a nuclear or other plant, aggregate 5 21,004,000, and are included in construction work in progress."

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Since no construction is going on, where does it fit to state:" work in progress" ?

e Intervenors did not allege that Applicant has hidden " financial" information. What we alleged was that Applicant withheld various kinds of information, not only of financial nature, referring also to the disposition of the land where the N-Plant was planned to besited. We insist

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that it was a grievous offense that Applicant behind the back of the Licensing Board, NRC Stoff and iniervenors took a series of legal actions to revert the Nuclear Plant site to the original owners.

To make things worse, during four , ears Applicant omitted to inform all concerned parties of their actions behind closed doors.lt was only accidentally that lost April Intervenors discovered such

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concealled actions. Also, Applicant omitted serving copy to the Licensing Board, NRC Stoff and Intervenors of their Financial Statement referred to above.

e Finally, Intervenors wish to address Note 17 of NRC Staff Memorandum of June 27, 1980, which states that a dismissal of the application with prejudice would not be appropriate,

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alleging that "although the Applicant might not be entitled to a license now, it might be entitled to one at a future dete." Intervenors vehemently disagree. There is no point in keeping Applicant's options open indefinitely for the future. Applicant is at present highly indebted and its balance sheet, which hos been in the red for years, keeps plunging by estronomical proportions due to on

incredible history of poor monopement, ineptitude

• and shortsightedness. Had it not been for

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• lt is trogic for the electricity consumer of Puerto Rico thot Applic mt contracted and payed

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Westinghoure end others for s:yplying thm the vnr;o.5 ~m.:on..se d t'm ill 4ted Nuclear P'nr.i

.before obtaining a conttructinn !icense frem ASLB, speac'iag c!to.ytt'r er uimost S 155 raillion, ol; gone down the ' drain.

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9 f' Dock t N3. 50-376 18 July,1980 Applicant's power as a Governmental agency to manipulate the electricity rates

• as they see it fit, Applicant would have been in bankrupt long ago.

Applicant has surrendered its prerrogative of management to its labor union ( UTIER )'s i

j blackmail tactics. The incidence of sabotage to its installations committed by its own employees e

g during strikes have gotten out of hands.On one occasion the Governor had to mobilize the' entire

! National Guard to put a stop to the heavy loses on installations and widespread blackouts re-

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sulting from sabotage which cost the Applicant million of dollars.

g In consideration of the fact that nuclear power plant construction and operation irevolve

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-f a highly sophisticated technology which cannot tolerate even on Act of God without disastrous 4

. consequences, there is no need for more words to anticipate the enormous risk of disaster that an Applicant's nuclear plant installation would be subjected to. Furthermore, Puerto Rico's geo-graphical conditions and on ever growing population density - presently over 900 inhabitants per

square mile --offers perhaps the worst place in the world to site a nuclear plant.

In view of the above, upon Intervenors proving without a shadow of c doubt that Ap-

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plicant has abandoned its intention to build the Nuclear Plant, Intervenors would expect no less than a dismissal of the application with prejudice.

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• Applicant's electricity rates cre cmong the nigt.est iri t ur United 5teter, arid possibly highest the world over.

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Docket No. 50-376 18 July,1980

. WHEREFORE, Intervenors respectfully pray the Honorable Appeal Board to reverse

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. the ASLB Order of May 29,1980 regarding to the instant case, so os to enable such Licensing Board to " inquire into the facts of Applicant's abandonment of intent to use the construction permit sought " by instituting hearings in Puerto Rico ond/or discovery proceedings at the earliest

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convenience, in which Intervenors are treated in forma pouperis, providing them with the legal counsel of their choice, including counsel's travel for and lodging expenses during hearings.

. In San Juan, Puerto Rico, this 18th day of July,1980.

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- , N44 Gonzalo Fern 6s, Pro Se, and representing Members of CCNR

. 503 Barb 6 Street Santurce, Puerto Rico 00912 Tels. (809) 727-0087 /727-2287 CERTIFICATE OF SERVICE BY Mall

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I HEREBY CERTIFY : That on this some date copy of the above memorandum entitled : INTERVENORS' MEMORANDUM IN RESPONSE TO APPEAL BOARD ORDER l JUNE 4,1980, has been served by first class or air mail upon the following : C. Jean Bishop, Secretary to the ASLAB ; Alan S. Rosenthal, Esq., Chairman, ASLAB ; Dr.' John H. Buck, Member, ASLAB ; Michael C. Farrar, Esq., Member, ASLAB ; Secretary of the NRC, Attention :

Docketing and Service Section ; Sheldon J. Wolfe, Esq., Chairman, ASLB ; Dr. Richard F. Cole, Member, ASLB ; Mr. Gustave A. Linenberger, Member, ASLB ; Edwin J. Reiss, Esq. Counsel for NRC Stoff ( All the above bearing some address os follows : United States Nuclear Regulatory Commission, Washington, D.C. 20555 ) ; Maurice Axelrod, Ese.,1025 Connecticut Avenue, N.W i Washington, D.C. 20036 ; Joss F. Irizarry, Esq., Legal Counsel for Applicant, Puerto Rico Elec-tric Power Authority, GPO Box 4267, Son Juan, Puerto Rico 00936 ; and Alberto Bruno Vega, Executive Director, Puerto Rico Electric Power Authority, GPO Box 4267, Son Juan, Puerto Rico 00936.

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