ML19323G943
| ML19323G943 | |
| Person / Time | |
|---|---|
| Site: | 05000376 |
| Issue date: | 06/04/1980 |
| From: | Bishop C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD), PUERTO RICO ELECTRIC POWER AUTHORITY |
| References | |
| NUDOCS 8006090302 | |
| Download: ML19323G943 (4) | |
Text
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UNITED STATES OF AMERICA i
NUCLEAR REGULATORY COMMISSION
'3 ATOMIC SAFETY AND LICENSING APPEAL BOARD O
CCCKETED USNRG Alan S. Rosenthal, Chairman Dr. John H. Buck
- JUN 5 1980
- I 53 Michael C. Farrar c,
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'O In the Matter of
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PUERTO RICO ELECTRIC POWER AUTHORITY )
Docket No. 50-376 (CP)
)
(North Coast Nuclear Plant, Unit 1)
)
l ORDER June 4, 1980 On May 29, 1980, the Licensing Board entered an order in j
which it denied certain relief sought by the intervenors in this construction permit proceeding involving the proposed North Coast nuclear facility.
LBP-80-15, 11 NRC The order is interlocutory in nature and thus not appealable under j
the Commission's Rules of Practice.
Nonetheless, one of the holdings contained therein has such a questionable basis that, i
given its possible precedential importance, review of it on our
~l own initiative may be now warranted.
.l The Licensing Board treated the intervenors' papers be-fore it as requesting, inter alia, "that an order be issued dismissing the (North Coast construction permit] application gj 52 TD 9l O li
- 000.0.oo k %
. should the Board determine, after an evidentiary hearing, that Applicant no longer intends to construct the nuclear plant * * *".
It then ruled that it had no authority to grant that request.
Its reasoning was that:
"In light of Section 189 of the Atomic Energy Act of 1954, as amended, 42 U.S.C.
a 2239, and the com-mission's regulations, 10 C.F.R. 8 2.104, which mandate hearings on applications for construction of nuclear power plancs, there is no procedure (short of withdrawal by the Applicant) for a Board's disposition of such an applicati<n without a hearing on health, safety and environmental issues".
11 NRC at (order,
- 3). 1/
p.
It is true, of course, that neither the Atomic Energy Act nor the Rules of Practice specifically establish a procedure for dismissing (or denying) a construction permit application on the ground that the applicant has clearly abandoned its pur-pose to build the facility in question.
It scarcely perforce follows, however, that a licensing board is required to retain on its docket in perpetuity an application which has become 1/
Although it did not say so, the Board may have relied upon a similar statement made by another Licensing
~~
Board in a different context several years ago in Boston Edison Co. (Pilgrim Nuclear Generating Station, Unit 2), LBP-75-15, 1 NRC 419, 420 (1975).
The Pilgrim decision had been called to its attention by the appli-cant in its opposition to the 3 9tervenors' motion (at
- p. 2).
1,
entirely academic.
In this connection, we find nothing in 1
Section 189 of the Act or Section 2.104 of the Rules of Prac-tice which might support such a curious result.
To be sure, those Sections may preclude the crant of a construction
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permit application without some herring of the " health, safety and environmental issues" which either must be routinely considered as a matter of law or have been properly raised by a party to the proceeding.
But their terms are devoid of anything which immediately suggests to us an intended limita-tion upon the inherent authority of adjudicatory tribunals to dismiss those matters placed before them which have been mooted by supervening developments. 2/
In the circumstances, we believe there to be warrant for calling upon the applicant and the NRC staff to furnish us by memoranda with their views on the matter.
If the" inter-venors are right in their suspicion that the applicant in fact
_2/
At first impression, Section 2.749 (d) of the Rules of Practice, 10 CFR 2.749 (d), would not appear to bar the dismissal of a moot proceeding.
Rather, the only lim-itation on a 1 censing board's summary disposition au-thority is that it "may not be used to determine the ultimate issue as to whether the permit shall be issued".
A dismissal for mootness -- not involving a considera-tion of the merits of the application -- would not seem to be within the intended purview of that limitation.
_4_
no longer intends to construct the North Coast facility,-3/
it would appear that they have a legitimate interest in having the application dismissed or denied -- thus relieving them of the obligation to continue to monitor the proceeding.
This interest is cause enough for our intercession at least to the extent of requiring the applicant and staff to justify the questionable holding below.
The memoranda are to be filed and served by June 27, 1980.
If they so desire, the intervenors may file a responsive memo-randum by July 18, 1980.
It is so ORDERED.
FOR THE APPEAL BOARD b 1-X dAh)
C. J Q n Bishop T Secretary to the Appeal Board
~~3/
We recognize that there is a dispute among the parties respecting whether the applicant has abandoned the proj-ect or, rather, merely deferred it.
The Licensing Board did not, however, undertake to pass upon that dispute, for the reason that it thought that it was powe-less to grant the sought relief in any event.
Obviously, should we choose to reverse the ruling in question it would be necessary to remand the matter to the Licensing Board for further consideration of the intervenors' assertion that reason exists to explore at a hearing the abandon-ment issue.
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