ML20011B247

Motion for Leave to Intervene.Certificate of Svc Encl. Related Correspondence

ML20011B247
Person / Time
Site:	Indian Point
Issue date:	11/20/1981
From:	Brandenburg B, Fischman B CONSOLIDATED EDISON CO. OF NEW YORK, INC., POWER AUTHORITY OF THE STATE OF NEW YORK (NEW YORK, SHEA & GOULD
To:	U.S. COURT OF APPEALS, 2ND CIRCUIT
Shared Package
ML20011B246	List: ML20011B245 ML20011B247
References
81-4188, NUDOCS 8112080207
Download: ML20011B247 (8)

Text

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PROD.8. UTIL FAC.Nr - 1 i

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UNION OF CONCERNED SCIENTISTS, )

NEW YORK PUBLIC INTEREST RESEARCH GROUP, INC.)

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Petitioners, ) Docket No. 81-4188

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UNITED STATES NUCLEAR REGULATORY COMMISSION, )

and THE UNITED STATES OF AMERICA, )

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Respondents. )

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MOTION FOR LEAVE TO INTERVENE The Power Authority of the State of New York (" Power Authority") and Consolidated Edison Company of New York, Inc.

(" Con Edison"), pursuant to 28 U.S.C. S 2348, without admitting the propriety of the petition for review herein,* file this Motion for Leave to Intervene in the above-captioned proceeding, and as grounds for such intervention state:

The Intervenors

1. The Power Authority is a corporate municipal

. , . instrumentality of the State of New York, a political subdivi-sion of the state exercising governmental and public powers, existing to provide a continuous, adequate and low-cost supply l

l of dependable electric power and energy for the benefit of the Immediately upon the Court's grant of leave to intervene, the l Power Authority and Con Edison intend to serve and file a mo-tion to dismiss tl4e Petition for Review filed by Petitioners herein, on the grcunds that this Court lacks jurisdiction to conduct the review requested.

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l people of the State of New York. Power Authority Act, N.Y. Pub.

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! Auth. Law SS 1001, 1002, 1005 (McKinney Supp. 1980-81). The I

] Power Authority is expressly authorized to furnish power and I energy to the Metropolitan Transportation Authority, the New York City Transit Authority, the Port Authority of New York and New Jersey, the City of New York, the State of New York and other public corporations. Id. 55 1001, 1005. The Power Authority maintains its principal offices at 10 Columbus Circle, New York, New York, and carries on its principal activities in-1 the generation and transmission of electric power throughout the State of New York, all within the Second Circuit. The Power.

Authority owns and coerates the Indian Point 3 Nuclear Power Plant, located in the Village of Buchanan, Westchester County, New York, and holds Facility Operating License No. DPR-64. As licensee of an operating nuclear reactor, the Power Authority is subject to regulations of Respondent Nuclear Regulatory Commis-sion ("NRC") pertaining to offsite radiological emergency planning, set forth in 10 C.F.R. Part 50 (1981).

2. Con Edison is a corporation organized under the 4

laws of New York and is principally engaged in the generation and transmission of electric power in the southeastern region of the State of New York, within the Second Circuit. Con Edison is an investor-owned public utility, with principal of fices at 4 Irving Place, New York, New York. Con Edison owns and operates the Indian Point Station, Unit No. 2, located in

[ the Village of Buchanan, Westchester County, New York, and holds i

Facility Operating License No. DPR-26. As licensee of an operating nuclear reactor, Con Edison is subject to regulations h

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of Respondent Nuclear Regulatory Commission ("NRC") pertaining i

i to offsite radiological emergency planning, set forth in 10 C.F.R. Part 50 (1981).

The Proceeding

3. This proceeding is filed by Petitioners for the purpose of obtaining review of an alleged " final decision" of the NRC pertaining to the status of offsite radiological emer-gency response plans (" emergency plans") of New York State and of Westchester, Rockland, Orange, and Putnam Counties (the "four counties"). The State's and four counties' radiological emergency plans were prepared by the Radiological Emergency Preparedness Group, a unit of the Department of Health of the State of New York, the four counties, and private consultants retained for this purpose by the intervenors. Together with the intervenors' on-site emergency plans, the State and the four counties' plans constitute an integrated formula for response to a radiological emergency. The intervenors have fir.anced most of the costs of developing the entire integrated plan.

Statement of Interest ,

i l 4. Pursuant to 10 C.F.R. S 50.54(q), licensees of I

operating nuclear generating plants are required to follow and maintain emergency plans approved by the NRC. Thus, although the State and four counties' radiological emergency plans reflect governmental responsibilities, it is the intervenors --

as licensees -- who would suffer the consequences of the relief

( sought by Petitioners herein, including a possible shutdown of t

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the Indian Point plants or other modification of their licenses.

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i Thus, the intervenors fall squarely within the zone of interest I

of the Atomic Energy Act, 4 2 U.S.C. S S 2011 e.t, seq. , and the

, emergency planning and licensing regulationr. promulgated there-under.

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5. Petitioners request as relief, inter alia, that the Court (w]ith respect to all uncorrected deficimacies,

. . . order the NRC . . . - to present to the court within 20 days of the submission of its list of outstanding deficiencies its conclusion er -

to whether reactor shutdown should be ord.. red or other enforcement measures taken, together with a statement of the reasons.and evidence relied upon in arriving at th2 conclusion...  ;

Thus, Petitioners clearly seek relief which could result in a shutdown of the intervenors' nuclear power plants or other enforcement action.

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6. Because nuclear generating plants operate at a substantially lower cost than other types of generating facili-ties, the intervenors collectively are able to provide electric, power to the public at a cost hundreds of stilliona of dollars yearly lower than the cost of alternatively produced power l

l through continued operaticn pf the plants. Such an increase in the cost of electricity would conflict with the intervenors' respective obligations to provide low-cost power to their customers. In addition, a permanent closing of the two units would lead to possible changes irt the construction plans of the intervenors. Thus, any shutdown or suspension of operations at t

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, Indian Point would have immediate and severe adverse economic t

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l impact on the intervenors.* Finally, the intervenors have i

e.spended over $7 million to date for on-site and off-site f

emergency planning related to Indian Point. They could be l

l compelled to incur yet additional costs if the relief sought by 1

Petitioners is granted. Clearly, the above-titled proceeding threatens the intervenors with grave and direct injury in -

fact.

7. In addition, the NRC has ordered an Atomic Safety ahd Licensing Board to conduct an investigatory hearing to exam-

_ ine, inter alia, "the current status and degree of conformance with NRC/ FEMA guidelines of state and local emergency planning within a 10-mile radius of the site and, of the extent that it is relevant to risks posed by the two plants, beyond a 10-mile

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radius." In re Consolidated Edison Co. (Indian Point, Units 2 and 3), 13 N.R.C. 1 (1981). That pending investigatory hearing C

was ordered in response to a petition addressed to the NRC by one of the Petitioners in this proceeding, the Union of Con-cerned Scientists. Union of Concerned Scientists' Petition for Decommissioning of Indian Point Unit 1 and Suspension of Opera-tion of L' nits 2 & 3, In re Consolidated Edison Co. (Indian Point, Units 1, 2, and 3) No. 50-3 (filed Sept. 17, 1979) (UCS Petition). Petitioner New York Public Interest Research Group, i Inc. has supported. the UCS Petition and has participated in the

-' related administrative proceedings conducted as of this date.

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See Statement of New York Public Interest Research Group, Inc.

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~% a Moreover, the Power Authority is bound by a statutory mandate

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to provide low-cost power to its customers, many of which are public agencies.

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in Support of Union of Concerned Scientists Petition and Requesti  ;

ing A Proceeding Pursuant to 10 CFR, Section 2.202, In re Consolidated Edison Co. (Indian Point, Units 1, 2 and 3) No.

50-3 (Jan. 3, 1980).

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The requested review by this Court of issues walch

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are precisely the subject of pending administrative proceedings will require the intervenors to appear in two separate proceed-ings, before two separate tribunals, in connection with a single issue.

The resulting. expense and practical prejudice constitute injury in fact to the intervonors.

9.

The interests of the intervenors herein are not adequately represented by Respondents. Indeed, the intervenors are licensed and regulated by Respondents, and the relief sought could compel Respondents to take adverse action against the inte rve norc.

Thus, this is the paradigm situation in which a regulated business is entitled to intervene as a matter of right in a review of an alleged action by the regulatory agency .

10.

The intervenars submit that they are entitled to intervene as a matter of right since, pursuant to 28 U.S .C.

5 2348, they are parties "in interest in the proceeding before the agency whose interests will be affected." Alternatively, if the Court should determine that the Power Authority and Con  !

Edison are not entitled to intervene as a matter of right, the.

intervenors request that this Notice be treated as a motion for leave to 2ntervene by permission, and that such leave be granted.

WHEREFORE, the Power Authority and Con Edison respect-fully raquest that this Court enter an order granting the Power 4rm mer r v=~.n~.=~z n.....

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Authority and Con Edison leave to intervene, and that because the intervenors are clearly the entities most seriously affected by the Petition, any delay in filing this Motion to Intervene be excused.

' Respectfully submitted, n+M

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Brent L. Branclenburg SHEA & GOULD Assistant General Counse By: Bernard D. Fischman Attorney for Attorneys for Power Authority CONSOLIDATED EDISON COM ANY OF of the State of New York NEW YORK, INC. 330 Madison Avenue Licensee of Indian P int Unit 2 New York, New York 4 Irving Place (212) C51-3200 New York, New York 10003 (202) 460-4600 THOMAS R. FREY General Counsel CHARLES M. PRATT Assistant General Counsel 10 Columbus Circle New York, New York 10019 (212) 397-6200 POWER AUTHORITY OF THE STATE OF NEW YORK Licensee of Indian Point Unit 3 10 Columbus Circle New York, New York 10019 Dated: November 20, 1981

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CERTIFICATE OF SERVICE I hereby certify that o 1981, I caused to be serv e d n the _ day of November postage prepaid, a by depositing in first cl ass -

mail, to Intervene upon copy of the foregoing Notic e of Intention Counsel for UnionEllyn R. Weiss, Esq Scientists of Concerned Harmon & Weiss Washington, (212) 833-9070 D.C. 200061725 06 I Street, N.W '

Melvin L. Goldberg, Esq .

• Counsel for NewGroup Interest Research York c Publi 5 Beekman Street , Inc.

New York, New York (212) 349-6460 Samuel

• United States Nuclear ReJ. Chilk, Secretary 1717 H Street, N.W.

Washington, D.C. gulatory Commission 20555 United Constitution AvenueStates Department ce of Justi Washington, D.C.

20530 Sworn to before me this DAVID H. PIKUS day of November,1981 Notary Public n  ; Il e[ u). ?I

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