ML20003J382

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

ML20003J382
Person / Time
Site:	05000376
Issue date:	04/25/1981
From:	Fernos G CITIZENS FOR THE CONSERVATION OF NATURAL RESOURCES, IN
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
Shared Package
ML20003J381	List: ML20003J380 ML20003J382
References
NUDOCS 8105110336
Download: ML20003J382 (5)

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25 April,1981 e

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UNITED STATES OF AMERICA NUCLEAR REG ULATORY COMMISSION O

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I BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL

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PUERTO RICO ELECTRIC DOC KET NO. 50 - 376

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POWER AUTHORITY ( PREPA )

Applicant Proposed North Coast

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Nuclear Plant'( Unit 1 ) ~.

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GONZALO FERNOS, PRO SE, ET AL.

Islote Word, Are'cibo, Puerto Rico Intervenors g

INTERVENORS' RESPONSE TO APPLICANT'S MOTION OF APRIL 17,1981

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TO THE HONORABLE APPEAL BOARD :

e COMES NOW the undersigned Intervenor, Pro Se, and on behalf of Wmbers of Citizens for the Conservation of Natural Resources, Inc. (CCNR), hereinafter referred to collectively as intervenors, and respectfully states, alleges and prays :

. On April 17, 1981, Applicant filed a motion entitled : " Authority's Response To Intervence's Petition For A Temporary Stay And Extension of Time." The motion was obviously filed seven days offer the Appeal Board had granted the relief wught in Intervences' Petition of April 6,1981, referred to above. Since the Appeal Beard resolved Intervenors' Petition on April 10,1981, Applicant's belated Response of April 17, 1981, perforce needs to be treated as on ex post facto motion requesting the Appeal Board to retrospectively annul its ORDER of April 10,1981, granting intervenors on extension of time until Wy 15,1981, to file on oppeci of Licensing Bmrd's ORDER of February 18,1981, under 10 CFR I 2.762.

WHY APPLICANT'S MOTION OF april 17,1981 SHOULD BE DENIED OUTRIGHT ARGUMENTATION :

e As usual, Applicant's Wrion is devoid of valid supporting arguments. Applicent's cliegations are just empty rhetoric --sheer nonsense. Let us examine ria facts :

8105110336

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Firstly, the granting er denici cf a stay to the Lic:nsir.g Board's ORDER of Febnzrf 18,1981, is of no consequence whatsoever to either party. The Appeal Board must have been fully aware of the irrelevancy of staying on order granting the dismissal of the application without prejudice as it has ignored ruling on such request by Intervenors. A stay is inconsequential beccuse to grant or deny it would not change a bit the undisputobie fact that Applice.t has given up its plans to build a nuclear plant at Arecibo, Puerto Rico or elsewhere-on-the is!and, ord all it seeld- -

now is to keep its options open for o very remote and most improbabfe future consideration. *

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Further, by Applicent's own admission, "the decision [the grunting of Applicant's request for

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withdrawal of the opplicction } did not authorize the Authority to commit any cetion which it

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could riot have otherwise committed, and thus there is 'nothing for the Appeal Board to stay '. "

( See top of p.4 of Applicant's Motion of April 17, 1981.)

Therefore, the.only issue in discussion at this instance is whether the granting of ars extension of time to file on appect was appropriate or not. The Appeal Board believes it was since it granted

~ the extension of time requested intervenors, naturally, agree and further consider pplicant's untimely opposition, which is obviously moot, on attempt to undermine the Appeal Bocrd's con-fidence on its own rulings.

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e 2.- Secondly, Applicant's allegation that intervenors' period to file on appeal has expired

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is also devoid of merit. The filing of exceptions to the decision to be appealed within 10 days, es i4.

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any other cet which a party has a right to do, may for good cause be extended cs provided in 10 CFR I 2.711(c). Also, the Petition For Reconsideration expressly spells out in its prayer that the j

undersigned intervenor wishes "to preserve his right to appeal..." ( See p.5, Icst sentence of Petition for Reconsideration of March 3,1981 ). Further, Licensing Bocrd's ORDER of March 26, 1981, denying the reconsideration is devoid of any mention that the Appeal Board locks jurisdiction l

• Applicant's current plans for next electricity ger.e eting units comerise only buildino 3-300 megawatt cool-fired power plants for which it Ics cireocy owcrded the design contract.

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3-to consider le.tervenors' appeal because, as Applicant alleges, the 10 day period to file it has expired. If the Licensing Board had believed that the period to file on oppeal had expired, it was obliged under 10 CFR I 2.718(o) to state so in its order. The fact that the Licensing Board rerreined silent on this issue is in and of itself proof that intervenors right to appeal had not expired. None-thsless, even the Supreme Court of the United States and the U.S. Courtpf Appeals are very linient In g ording extensions of time for good cause. The undersigned Intervenor has been grcinted two

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extensions of time (almost 2 months each) by the Supreme Couit of the United States in case No.'S

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79-444, Petition For Reheoring. The U.~. Court of Appeals for the First Circuit which tends to be "

conservative, granted the undersigned Intervenor over 6 extensions of time totaling more than 14

. months in cose No. 77-1331. Yet in Applicant's shortsighted view, an administrative [udge or panel like the Appeal Board has no discretionary power to grant extensions of time to o party to do a statutorily permissible act. I.et the Appeal Board take notice that in the instant cose there may be forthcoming more recluests for extension of time to file the appeal. That is so, because Applicant is currently undergoing on investigation by the Department of Justice of Puerto Rico for, alleged corruption at all levels within the Agency. The results of such on investigation would be requested by Intervenors, through Court if deemed necessary. The Department of Justice's Findings are obviously crucial for the Appeal Board's determination whether the granting of Appli-(

cont's disraisscl of its application should be with prejudice. In the event of adverse findings'which corrobcrate corruption in App 1! cont's operations from top to bottom, such Icck of moral integrity i

j would be in and of itself sufficient cause to warrant a dismissal of the application with preivdice.

t The reverse would be tantamount to leaving the door open for future sales of plutonium for warfare activities to on unfriendly nation such cs Cubo. Even though there might be o house cleaning after the investigation, who con guarantee that corruption will not recur at any level of Appli-cont's operations ?

3.- Finally, Intervenors address Applicant's contention thct Intervenors' o!!egotion " that e

this cose entails a dismissal of a second application which compels dismissal with prejudice" is raised for the first time on appeal. Applicant is dead wrong. The ill-fated Aguirre Nuclear Plant under docket No. 50-376, has been brought into discussion throughout the 6 year inter-vention period at one time or another. It is granted that the legal implication of a second dis-missal was not ruised before ; however, this case has not yet reached the U.S. Court of Appeals where new orguments will be precluded. It still is in the some administrative forum where pro-cedures are not as rigid as supposedly are to be in a court of justIc'e.lven rnore, no'vfhere in

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Title 10 of the Code of Federal Regulations is it stated or inferred tint new legal issues about already raised facts cannot be raised in appeal before the same administrative forum. Further, 10 C FR I 2.786(a) explicitly confers the Commission's power to sua sponte review a decision below. That means that when the Appeal Board performs "the review functions which otherwise have been exercised and performed by the Commission" under 10 CFR I 2.785(c), like with the instant case, the Appeal Board has the power to raise or accept legal issues on known facts raised belew, but which were not previously raised from a legal standpoint.

e WHEREFORE, Intervenors respectfully pray the Appeal Beard to dismiss Applicant's Motion of April 17 1981, for lack of merit.

e in San Juan, Puerto Rico, this 25th day of April,1981.

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Q,y Gonzalo Fern 6s, Pro Se, and i

gfyj representing Members of CCNR.

A1 503 Barb 4 Street 8

Santurce, Puerto Rico 00912 to Tels. (809) 727-0087 / 727-2287 ea b

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k CERTIFICATE OF SERVICE BY Mall i HEREBY CERTIFY : That on this some date copy of the above motion entitled : "Intervenors' e

Response To Aeolicant's Motion of Aoril 17, 1981 " has been served by First Class or Air Mail upon the following : Samuel J. Chilk, Esq., Secretary of the Commission ; 'lon S. Rosenthal, Esq., Chairman, ASLAB ; Dr. John H. Buck, Member, ASLAB ; Sheldon_J..Wolfe, Esq., Chcir.-

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man, ASLB ; Dr. Richard F. Cole, Member, ASLB ; Mr. Gustave A. Linenberger, Wmber,'ASLB ;-

Henry J. McGurren, Esq., Counsel for NRC Stoff ; two cople's'to' Docketing and Service Section'r

( All the above bearing some address as follows : U.S. Nuclear Regulatory Commission, Washingtk D.C. 205SS ) ; Maurice Axelrod, Esq., Lowenstein, Newman, Reis, Axelrod & Toll,1025 Connecticut Avenue, N.W., Washington, D.C. 20036 ; Joss F. Irizarry, Esq., General Counsel, PR. EPA, GPO Box 4267, San Juon, Puerto Rico 00936 ; Eng. Alberto Bruno Vego, Executive Director, PREPA, GPO Box 4267, Son Juan, Puerto Rico 00936 ; and Dr. Tom 6s Morales-Cordono, School of Medicine, University of Puerto Rico, GPO Bax 5067, San Juon, Puerto Rico 00936.

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s FOR INTERVENORS :

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