ML19340D959
| ML19340D959 | |
| Person / Time | |
|---|---|
| Site: | 05000376 |
| Issue date: | 12/31/1980 |
| From: | Gutierrez J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8101050632 | |
| Download: ML19340D959 (14) | |
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UNITED STATES OF A!1 ERICA December 31, 1980
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[f BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
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PUERTO RIC0 UATER RESOURCES
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Docket No. 50-376 AUTHORITY
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(*4 orth Coast Nuclear Plant, Unit 1)
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NRC STAFF MEM3RANDU!1 IN RESPONSE TO ATOMIC SAFETY
_AjlD LICENSING BOARD ORDER OF DECE:tBER 16, 1980 I.
INTRODUCTION A detailed procedural history of this case is set forth in a memorandum, dated October 8,1980, entitled,"NRC Staff Response to Intervenor's flotion for Directed Certification." S However, this elaborate procedural history need not be reviewed before deciding the Applicant's motion since the pro-cedural issue which the Licensing Board is currently asked to decide is a narrow one.
Pursuant to 10 C.F.R. 5 2.107(a), the Board must decide whether to permit the Puerto Rico Electric Power Authority (hereinafter referred to as the Applicant) to withdraw its application without prejudice.
~~~l/ This Memorandum was served upon all parties on October 8,1980. See, section entitled " Background" at p. 2.
2/ An application was filed for a construction permit for a pressurized water nuclear reactor, designated as the North Coast Nuclear Plant, Unit 1, to be located an the north central coast of Puerto Rico. This application was noticed in the Federal Register on February 14, 1975 (40 Fed. Reg. 6835).
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On September 11, 1980, the Applicant filed a document entitled " Motion for Termination of Proceeding" accompanied by a document entitled " Withdrawal of Application." In response to the Applicant's motion, Intervenors Gonzalos Fernos and Citizens for the Conservation of National Resources, Inc. (hereinafter referred to as the Intervenors) filed with the Commission on September 18, 1980, a document entitled " Motion for Direct Certification to Request Application be Dismissed with Prejudice" and on the same day filed with the Licensing Board a document entitled " Motion for a Stay of Proceedings." In their motion to the Commission, the Intervenors sought either a direct ruling from the Commission dismissing the application with prejudice, or, in the alternative, an evidentiary hearing to determine the Applicant's intent to construct the plant, "to enable the Licensing Board to know the full facts why the dismissal cannot belessthanwithprejudice."1/
l By an order dated October 17, 1980, the Commission declined to grant direct certification on the issues presented and transferred the Intervenors' motion L
to the Licensing Board to determine whether the application for a construction permit should be permitted to be withdrawn without prejudice. The Staff I
previously briefed both issues presented by the Intervenors' motion to the Commission and took the position that the Intervenors failed to demer, strate why the application should be dismissed with prejudice and further failla to set forth any factual issues warranting an evidentiary hearing concerning the i
_ / "Intervenors' Motion for Direct Certification to Request Application Be 3
Dismissed with Prejudice," p. 2 (September 18,1980) (emphasis in original).
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Applicant's intent to complete construction of the North Coast Nuclear Facility.
By an order dated December 16, 1980, the Licensing Board, after reviewing a reply brief filed by the Intervenors on December 3,1980, granted the Staff and the Applicant until December 31, 1980, to respond to a "new" argunent raised by the Intervenors.
In their reply brief, the Intervenors essentially alleged it would be in the public interest to dismiss the application with prejudice.I It is the position of the NRC Staff that the Applicant's Motion for Termination of Proceedings and Withdrawal of Application for a Construction Permit should be granted, withc,ut prejudice and that an evi-dentiary hearing on this issue is neither required nor desirable for the reasons set forth in the Staff's October 8,1980 memorandum and hereinbelow.
II.
DISCUSSION A.
THE PUBLIC INTEREST WILL BEST BE SERVED BY PERfilTTING THE APPLICANT TO WITHDRAW ITS APPLICATION WITHOUT PREJUDICE
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The Comission regulation governing withdrawal of an application is 10 C.F.R. 6 2.107(a), which provides:
The Comission may permit an applicant to withdraw an application prior to the issuance of a notice of hearing on such terms and conditions as it may prescribe, or may, on receiving a request for withdrawal of an application, deny the application or dismiss it with prejudice. Withdrawal of an application after the issuance of a notice of hearing shall be on such terms as the presiding officer may prescribe.
_4] See, NRC Staff Response to Intervenors' Motion for Directed Certification, ^
(October 8,1980).
_5/ Intervenors' Reply to Applicant's and HRC Staff's Contention that North Coast Nuclear Plant's Withdrawn Application Should Not be Dismissed with Prejudice (December 3,1980).
Admittedly,10 C.F.R.12.107(a) does not set forth the standard a Licensing Board should apply in determining what terms and conditions should accompany an application withdrawal; however, case law very clearly outlines the standard both courts and regulatory agencies should apply, absent statutory guidance, in deciding whether to grant dismissal without prejudice.
It is generally held that permitting withdrawal of an application without prejudice is the proper procedure unless it is demonstrated that an opposing party.
or the public in the context of regulated industry, would be unduly prejudiced by such a dismissal in some way other than the mere prospect of future litigation.S As previously discussed in the fiRC Staff's October 8,1980 memorandum, 7/
the Supreme Court case of Jones v. Security and Exchange Comission, 298 U.S.1, 19 (1936) traces the historical development of a party's right to a voluntary dismissal.
It was therein noted that at common law a party had a right to 1
dismiss a complaint without prejudice, upon payment of costs and on condition that the opposing party would not be prejudice in some way other than the mere prospect of future litigation.
_I d. The Jones Court then went on to state.
that Federal tribunals have adopted this unqualified right to a voluntary dismissal unless some plain legal prejudice would result, other than the mere i
6/ See Jones v. Securities and Exchange Comission 298 U.S. 1, 19 (1936);
Boston Edison Co. (Pilgrim fluclear Generating Station) LBP-74-62, 8 AEC 324,327T1974).
l/ flRC Staff Response To Intervenor's Motion For Directed Certification,
- p. 9-12 (October 8,1980).
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i prospect of a second litigation. M. I The Court in Jones then applied the general principles governing voluntary dismissal in the civil courts to a request to withdraw a license application within the context of a regulated industry. The Jones applicant was seeking to withdraw its registration of securities with the Securities and Exchange Commission, i
apparently to avoid an investigation into alleged misconduct. The applicable regulations empowered the Security and Exchange Comission to consent to a with-drawal after due regard to the public interest. M.at22.I The essence of the Jones test in granting dismissal without prejudice in the context of a regulated industry is the absence or presence of prejudice to the public. M.
- Thus, in the instant case, the central question this Board must address is whether it is in the public interest to pennit the application for a construction permit to be withdrawn without prejudice.
The Jones standard was adopted and applied in the context of nuclear ree"lation in Boston Edison Company (Pilgrim Nuclear Generating Station), LBP 76, 8 AEC 324, 327 (1974).b In Boston Edison, as in the instant case, an i
_ Bf This rule continues in the Federal courts and is embodied in Rule 41(a)(1) of the Federal Rules of Civil Procedure.
_9f In light of this standard it is interesting to. note the Jones Court stated at 23:
The conclusion seems inevitable that an abandonment of the application was of no concern to anyone except the r
registrant.
The possibility of any other interest in the l
matter is so shadowy, indefinite, and equivocal that it must be put out of consideration as altogether unreal.
Under these circumstances, the right of the registrant to withdraw his application would seem to be as absolute as the right of any person to withdraw an ungranted epplication for any other form of privilege in respect of which he is at the time alone concerned.
10/ See also Potoma_c Electric Co. (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-277,1 NRC 539, 551-552 (1975) wherein it was stated, ir f he context of discussing convenience to litigants in scheduling early hearings on site related matters that the paramount consideration is where the broader Dublic interest lies.
Id.
. Applicant filed a motion to withdraw its application, setting forth as grounds fc-that application load forecasts and financial conditions.
I_d. at 324.
In that case, an intervenor, Massachusetts Wildlife Federation, asserted that the applicant's motion should be gra-
'd "with prejudice" with the condition applicant should not be permitted to 1
' ele for a license within a prescribed period of time.
I_d. at 326.
In granting the applicant's motion to withdraw, 1
the Licensing Boara unaquivocally rejected the intervenor's suggestion at 327:
Moreover, it seems to the Board that it would be infeasible for this Board even to attempt to impose a condition on a public utility that it be prohibited from filing an application for the construction of a power plant before a certain date, such as is apparently requested by the Wildlife Federation and now the Commonwealth of Massachusetts.
It must be presumed that it is the Rublic's need for Dower which is one of the underlying rialp_ns_ for construction of a power plant. This statutory princiDie- "Dublic Convenience and necessity"--
is the basis which underlies the authorization granted by other concerned federal and state regulatory agenices before any construction can be commenced by the utTlity.
and requires a finding of public need.
If such finding is made, based upon a proper showing by the utility, it would be unreasonable in the extreme to deprive the P
public of a needed utility service because of alleged
" inconvenience or burden" to potential intervenors.
(Emphasis Suoplied).
In accord with the authorities set forth hereinabove, it is the position of the NRC Staff that the Board should grant the Applicant's motions for termination of proceedings and withdrawal of its application without prejudice.
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7-4 The public interest will best be served by pemitting the Applicant to withdraw 1
from the licensing process without prejudice, thereby freeing him to refile if changed conditions warrant.
For example, if the Applicant's financial condition improves, or if the public's energy needs increase, or if the subject facility becomes technically more feasible to construct, the public would best be served by leaving open to the Applicant the nuclear option at a future tin'e.
4 B.
INTERVENORS HAVE NOT SET FORTH ANY MATTER WARRANTING A HEARING ON THE ISSUE OF WHETHER 1HE APPLICATION SHOULD BE DISMISSED WITH PREJUDICE In their reply brief, the Intervenors request as alternative relief to i
a direct dismissal with prejudice, "a fact finding proceeding [be] instituted in which applicant would be ordered to answer pertinent questions with regard to the acquisition and disposal of the nuclear plant site land..."E The hearing requested by Intervenors is irrelevant to the motion upon which the Licensing Board is presently asked to rule. The narrow issue before the Board is simply whether it is in the public's interest to allow the Applicant to withdraw its application for a construction permit without 1]f It is important to note at this time that the Intervenor's Motion is built upon the assumption that if the application is dismissed with prejudice this would prevent a refiling at a future time. The Staff does not grant this assumption and is of the position that prior administrative determinations are not controlling upon further appli-cations where facts or law'might have changed. See the cases cited in support of this position, Section B., infra.
12f Intervenors' Reply to Applicant's and NRC Staff's Contentions That North Coast Nuclear Plant's Withdrawn Application Should Not Be Dismissed With l
Prejudice, p. 9 (December 3, 1980).
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. prejudice.
In contrast, the Intervenors are attempting to broaden the current Board inquiry to encompass issues which may be relevant if the Applicant decides to refile an application for a ::nstruction permit at the North Coast site in the future. The issues the Intervenors request the Board to confront deal uth such diverse matters as alleged Aoplicant mis-representations to the Commission concerning its intent to build the North Coast facility,E the suitability of the site, and possible sabotage and labor unrest (see Intervenors' reply, pages 4-8). Although each of these issues may possibly be relevant in the future should the Aoplicant refile for a construction pemit, these same issues are not relevant to the instant determination of whether the Aoplicant may withdraw its application without prejudice.
Not one of the issues submitted by the Intervenors goes to how the public may be hurt by allowing withdrawal of the application without prejudice.
All of the Intervenors' issues address whether a permit should be granted.
Contrary to the Intervenors' supposition on page 6 (Intervenors' Reply, December 3,1980), no matter will be decided or foreclosed from future 1_3/ It should be stressed that, to date, the Intervenors have merely alleged deceitful cond;ct on the Applicant's part in regard to conveying land which previously had been condemned for the North Coast facility.
As Intervenors recognize this reconveyance of land was done through the Puerto Rican Courts. See Intervenors' Reply Brief, p. 5 (December 3, 1980). As early as 1975, by letters dated December 3 and December 5, 1975, the Applicant infomed all parties of its decision to postpone indefinitely the proposed project due to financial considerations.
It is important to note that even when there are allegations of improper conduct, the public's need for the service at the time it is needed must be weighed against the character of the Applicant in determining whether a license should be granted. See Cosmopolitan Broadcasting Co.
- v. Federal Communications Commission, 581 F.2d 917, 928 (D.C. Cir.1978);
Armored Carrier Corp. v. U.S., 260 F. Supp. 612, 615 (E.D.N.Y.1966),
affimed 386 U.S. 778 (1967); see also Schware v. Board of Bar Examiners, 353 U.S. 232 (1957).
All i
inquiry by allowing the dismissal of the application without prejudice.
issues material to the grant of a permit are open for consideration should another application be filed. The Supreme Court has held that where no findings have been made, a dismissal is not dispositive on any issue in a See Lawlor v. National Screen Service Corp., 349 U.S.
subsequent proceeding.
322, 326 (1955); Wi1 wording v. Swenson, 502 F.2d 844, 848 (8th Cir.1974);
see also Davis, Administrative Law Treatise, Section 18.06 (1958). Thus, since failed to
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no findings have been nade in the instant case the Intervenors havt demonstrate in what way the public will be injured by a dismissal without prej udice.
intervenors seek to make much in their reply of the fact that they want discovery or hearings on matters which they say forecloses the granting of a However, again, these license (Intervenors' Reply, December 3,1980, p. 8-9).
matters go to the issue of whether a license should be issued and not whether the Applicant should be permitted to withdraw its application without prejudice.
Moreover, even if each of these matters were decided in the Intervenors' favor--
this would not prevent the Applicant from reapplying should facts or law change.
j For as held by the Supreme Court, the dismissal of an administrative proceeding does not prevent relitigation of similar issues in the future should facts and See Federal Communications Commission _ v. Pottsville Broadcasting law change.
Federal Trade Commission _ v. Raladam Co., 316 U.S.
Co., 309 U.S.134,145 (1940);
See also_ Davis, Administrative Law Treatise, Section 18.04 149, 150-151 (1942).
Quite apart from changed factual or legal circumstances, it has been (1958).
recognized that res judicata and collateral estoppel principles would not neces-sarily be invoked where there are competing public policy factors which ou Alabama Power Co. (Joseph M. Farley Nuclear the application of those doctrines.
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Power Plant, Units 1 and 2), 7 AEC 210, 213-215 (1974).
In the instant case, the public's energy needs, technology or other factors r'ay so change as to allcw a new application to be granted, even if matters currently sought to be litigated were determined in Intervenors' favor.
In effect, as we have emphasized, the Intervenors have disregarded the Applicant's withdrawal of its application and request an inquisition for all time on the Applicant's suitability for a license. All issues raised by the Intervenors' request for an evidentiary hearing on the Appli-i cant's conduct and other issues will be relevant and more properly framed l
during a licensing hearing in the event of a future refiling. Presently, all issues Intervenors seek to raise, including the character of the Appli-cant, are moot issues by reason of the Applicant's motion to terminate the proceedings nd withdraw its application.
In addition, it would be an ineffective and wasteful use of administrative resources to grant the Intervenors an evidentiary hearing upon allegations of Applicant's misconduct, since in the event the Applicant exercises its option to apply for a construction permit in the future, all issues currently raised by the Intervenor would again be open to relitigation. Administrative economy thus mitigates against considering the issues the Intervenors wish to explore at this time.
In sum, Intervenors have failed to raise any issue involving the public interest which would foreclose the Applicant from withdrawing its applicatir i
without prejud;ce and there are no matters upon which a hearing should be conducted i's this proceeding at this time. Accordingly, the Staff submits
I the Intervenors' alternative request for an evidentiary hearing is without merit and the Licensing Board should rule on the Applicant's motion to teminate the proceedings and withdraw its application without any further hearings.
III. 00'iCLUSIO!15 l
l For the reasons set forth hereinabove, it is the position of the NRC Staff that the Applicant's motion for termination of proceedings and withdrawal of application for construction permit should be granted, with-out prejudice and that no further evidentiary hearings be held in this matter.
Respectfully submitted,
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' day M. Gutierrez Counsel for NRC Staff Dated at Bethesda, Maryland this 31st day of December,1980.
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l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION I
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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PUERTO RICO WATER RESOURCES
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Docket No. 50-376 AUTHORITY
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(North Coast Nuclear Plant, Unit 1)
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NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney herewith enters an appearance in the captioned matter.
In accordance with 52.713,10 C.F.R. Part 2, the following information is provided:
Name-
- Jay M. Gutierrez Address
- Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Telephone Number
- Area Code 301-492-7991 Admissions
- Supreme Court for the State of West Virginia District Court for the Northern and Southern Districts of West Virginia l
Name of Party
- NRC Staff U.S. Nuclear Regulatory Commission Washington, D.C.
20555-I n ~ l. { N ulm)
, Jay M. Gutierrez
" Counsel for NRC Staff i
Dated at Bethesda, Maryland this 31st day of December,1980.
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UNilED biAlES OF A"EFICA NUCLLAR REGULATORf C0;'O',155!P4 j
BEFORE THE AlWIC SAFETY A!!D LICENU.i 09.7D In the Matter of
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h PUFP.T0 RICO ELECTRIC PO:lER Dschet No. 50-376 4
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(Noi th Coast fluclear Plant, Unit 1)
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9 CERTIFICATE OF RERVICE F
I hereby certify that copies of "NRC STAFF MEMORANDUM IN RESPONSE TO ATOMIC SAFETY AND LICENSING BOARD ORDER OF DECEMBER 16, 1980" and " NOTICE OF APPEARANCE"
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of Jay M. Gutierrez, in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission internal mail system, this 31st day of December,1980:
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Sheldon J. Wolfe, Esq., Chairman
- Alberto Bruno Vega, Assistant Atomic Safety and Licensing Board Executive Director, Planning and U.S. Nuclear Regulatory Conrission Er.g ineering l
Washington, DC 20555 Puerto Rico Electric Power Authority G.P.O. Box 4267 Dr. Richard F. Cole
- San Juan, PR 00936 Ato:.ic Safety and Licensing Baard U.S. Nuclear Regulatory Commission Mr. Gonzalo Fernos, Chairman j
Washington, DC 20555 Citizcos for the Conservation of Natt.ral Ocsources, Inc.
Mr. Gustave A. Linenberger*
503 Barbe Street Atcmic Safety and Licensing Board Santurce, PR 00912 U.S. Nuclear Regulatory Comission Pashinoton, DC 20555 Esq. German A. Gon.zalez Attorney for Mision Industrial, Inc.
Maurice Axelrad, Esq.
Mision Industrial De Puerto Rico Leuenstein, Newman, Reis, G.P.O. Box 20434 1025 Connecticut Avenue, N.W.
Rio Piedras, PR C0925 Mashington, DC 20036 Mr. Mario P.oche Velazquez Esc.. Jcse F. Irizarry Gonzalez Executive Director, Ger.eral Counsel Mision Industrial, Inc.
arto Rit:0 Electric Power Mision Irhstrial Ca Puctto Rico Authority G.P.O. Box 20434 G.P.O. Ecx 4267 Rio Piedras, PR C0925 San Juan, P'l 00936 Jnn. Francisco Jirent:z
- 9 ti.w uid S cvice f.ction (7)*
..ox 1317 Cffice of the Secretary t'ayaguez, PR 00708 U.S. I:icicar ncgulatory Conaission Ueshingion, DC 20555 At'emic Safety and Licensing Ecard Pariel
- II.S. Nucicar Regulatory Co-cission
ashington, DC 20iS5 ltomic Safety and Licensing Appeal Panel (5)*
- 1.S. Nucic3r P.
- gulatory Corcission
- ashington, DC 20555 r/
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