ML20033B333
| ML20033B333 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 11/25/1981 |
| From: | Brandenburg B, Morgan C CONSOLIDATED EDISON CO. OF NEW YORK, INC., MORGAN ASSOCIATES, POWER AUTHORITY OF THE STATE OF NEW YORK (NEW YORK |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-SP, NUDOCS 8112010259 | |
| Download: ML20033B333 (61) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'IE5' ORE' THE ATOMIC SAFETY AND LICENSING A > ' 25 P4 :37 Louis J. Carter, Chairman
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CONSOLIDATED EDISON COMPANY OF NEW YORK, INC.
(Indian Point,' Unit No. 2)
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50-286 SP POWER AUTHORITY OF THE STATE OF NEW YORK
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(Indian Point, Unit No. 3)
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LICENSEES' MEMORANDUM OF LAW IN SUPPORT _OF MOTION FOR A STAY OF COMMISSION'S ORDERS OF JANUARY 8, 19 81 AND SEPTEMBER 18, 19 81 OR FOR DISMISSAL OF THIS PROCEEDING OR, IN THE ALTERNATIVE, FOR CERTIFICATION TO THE COMMISSION This memorandum of law is filed by the Consolidated Edison Company of New York, Inc. ( Consolidated Edison) and the Power Authority of the State of New York (Authority), licensees of Indian Point Units 2 and 3, respectively, in support of licensees' motion for a stay of the Nuclear Regulatory Commis-sion's (Commission's) Orders of.Tanuary 8, 19 81, and September 18, 19 81, pending the completion of presently scheduled and proposed generic proceedings, or for dismissal of this proceed-1 ing.
In the alternative, licensees seek certification of the issues raised in their motion and memorandum of law to the Commission for its determination, pursuant to 10 C.F.R.
S 2.718(i) (1981), if the Atomic Safety and Licensing Board
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m (Licensing Board or ASLB) considers that the Commission's prior orders preclude the Licensing Board from granting the relief requested.1 The grounds for this motion are:
(1) commencement of an adjudicatory proceeding prior to completion of ongoing proceedings to establish generic standards constitutes a denial to licensees of procedural due process (text at 8, infra);
1.
Licensing boards may certify questions to the Ccmnission without first havirg ruled on them.
"(I]t would be wholly irrational to read Section 2.718(i) in such a manner that its availability... would [depeM on] the wholly fortuitous circunstance that the licensing board had already expressed its own views.").
In re Public Service Cb. of New Hampshire (Seabrook Station, Units 1 and 2), 1 N.R.C. 478, 482-(1975); see In re Consumers Power Co. (Midland Plant, Lhits 1 and 2),. 6 A.E.C. ' 816, 818 n.6 (1973) (empnasis in original) ("Under the Rules of Practice, a certification involves the subnission of a legal issue to a higher tribunal for its consideration, without a ruling having been made on that issue by j
the certifying body"). The Canmission has the power at any time to undertake interlocutory review of any matter in any proceeding before any licensing board.
In re Lhited States Energy Research & Develognent-l Aininistration (Clinch River Breeder Reactor Plant), 4 N.R.C. 67, 74-76 l
(1976)T In re Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), 5 N.R.C. 503, 516-17 (1977), aff'd, New England Coalition on Nuclear Ibilution v. NRC, 582 F.2d 87 (1st Cir.1978).
Certification to the Comission pursuant to 10 C.F.R. S 2.718(i) is l
l compelled by the unique circumstances of this case. The licensees' motion is one which "must be reviewed now or not at all."
In re Kansas Gas and Electric Co. (21f Creek Nuclear Generatirq Station, Unit No.1), 3 N.R.C.
408, 413 (1976); In re muston Lighting & Power Co. (South Texas Project, Lhits 1 and 2),13 N.R.C. 469, 473 (1981).
Ite exceptional circumstances of this notion are such that failure to resolve the issues posed would jeopardize the public interest or cause l
unusual delay or expense. See In re ibledo Edison Co. (Davis-Besse Nuclear Power Station), 2 N.R.C. 752, 759 (1975).
In light of the fact that licensees' motion presents " major or novel questions of policy, law or procedure," 10 C.F.R. S 2.785(d), directed certification is mandate becaase of the " exceptional circumstances which warrant the extraordinary l
involvement of the Ccmnission."
Pennsylvania Power and Light Co.
(Susquehanna steam Electric Station, Units 1 arr: 2), 11 N.R.C. 678, 679 (1980).
(.
(2) principles of res judicata and collateral estoppel bar reconsideration of the physical end population characteristics of the Indian Point site (text at 22, inf ra_) ;
(3) the Commission's failure to adhere to its existing Siting Criteria constitutes action which is arbitrary, capricious, an abuse of discretion, and a deprivation of property without due process of law:
(a) the Siting Criteria are violated by the Commission's January order (text at 29, infra); (b) the application of existing Siting Criteria to existing plants has been ratified by Congress (text at 35, infra); and (c) the retroactive application'of new siting standards would violate the due process clause (text at 37, infra);
(4) the Constitution requires that the Commission establish compelling reasons to justify a shutdown of Indian Point ( text at 40, infra);
(5) an adverse ruling from a readjudication of the Indian Point site would result in an impairment of contract and a taking of property without just compensation guaranteed by the fifth amendment (text at 45, infra); and (6) the Commission lacks jurisdiction to conduct the hybrid investigatory-adjudicatory proceeding which constitutes an unconstitutional singling out of the Indian Point licensees (text at 53, infra).
s s
STATEMENT OF FACTS The Indian Point site was found safe by the NRC /in 19 66, 19 69, and 19 77.
See In re Consolidated Edison Co. (Indian Point, Unit 2), 3 A.E.C. 144, 151,-aff'd, 3 A.E.C. 162 (1966);
In re Consolidated Edison Co. (Indian Point, Unit 3), 4 A.E.C. 246, 262, af f'd_,
4 A.E.C. 39 2 (19 69 ); In re Consolidated Edison Co. (Indian Point, Units 1, 2, and 3), 6 N.R.C. 547, 624 l' ?
(1977), 10 N.R. C. 410 ( 19 79 ), review denied, 2 CCH N.R.R.
1 30,536 (1980).
In reliance thereon, the Authority authorized the issuance of bcnds to purchase Indian Point 3 from Consolidated Ediso ).1 On September 17, 19 79, the UCS filed a petition with the NRC requesting a proceeding to modify, suspend, or revoke the operating licenses for Indian Point Units 2 and 3.
Union of Concerned Scientists' Petition for Decommissioning of Indian Point Unit 1 and Suspension of Operation of Units 2, and 3, In re Consolidated Edison Co. (Indian Point, Units 1, 2 and 3),
No. 50-3 (filed Sept. 17, 19 79) (Petition).
The Petition requested that Indian Point Units 2 and 3 be shut down "unless and until the Commission determines that 1) the site is suit-1.
See B:ner Authority of the State of New York, Financial Statements 8,11 (Dec. 31,1980).
Ibcuments reflectirs the financial statements of Consolidated Edison and the Authority, *ich detail the financirs of the Indian Raint units, are on file with the NRC.
"It is... Well established that a regulatory agency has the right to take official notice of reports filed with it by a regulated conpany."
P. Saldutti & Son, Inc.
- v. United States, 210 F.Supp. 307, 313 (D.N.J.19 62); see Market St. Ry. v.
Bailroad Canm'n, 324 U.S. 548, 561-62 (1945); Wisconsin v. FPC, 201 F.2d 183,186 (D.C.Cir.19 52), cert. denied, 345 U.S. 934 (19 53). 2
n si able for nuclear power generation; 2) each applicable unre-
' solved safety problem is addressed; and 3) the requirements of
/
,each' Regulatory Guide are addressed."
Id. at 1 65(c).
/
Remarkably, the Petition did not contend that Indian Point Un,its 2 ob 3 differed in safety from other plants located throughout the country.
Instead, it acknowledged that "(s]ome of the safety issues raised by this petition are not unique to the Indian Point nuclear power plants."
Id_. at 1 10 (emphasis added).
The Petition did argue that the proximity of the plants to the New York City metropolitan area makes the Indian Point site " unique."
Id.
The Commission treated the Petition as a request for action pursuant to 10 C.F.R. S 2.206 (1981) and referred it to the Of fice of Nucle'ar Reactor Regulation (NRR).
Request for Action Under 10 C.F.R. S 2.206 ( filed Dec. 3, 19 79).
On February 11, 1980, the Director of NRR recommended denial of the Petition's request for a hearing and a shutdown, and he directed the licensees to undertake operational and training initiatives to further enhance plant safety.
In re Consolidated Edison Co. (Indian Point, Units 1, 2, and 3), 11 N.R.C. 351 (1980).1 1.
Se Director's decision summarized several extraordinary and safety enhancing design features of the tm operating reactors at the site which are found in few other plants, me decision also carefully evaluated each of the supposed safety deficiencies alleged in the Petition. @e decision ecmprised a tharough and ccmprehensive safety evaluation of Indian Point t. hits 2 and 3.
Se Director concluded that "fb]oth plants have been l
significantly modified to meet NRC safety an3 security requirenents."
Inn l
re Consolidated Edison Co.,11 N.R.C. at 369. L
i Despite the recommendation-of the NRR Director, the NRC solicited public comment as to the merits of the Director's decision and as to the form further Commission consideration of i
the matter should take.
Solicitation of Comment on Director's Decision Un' der 10 CFR 2.206, at 2 (filed Feb. 19, 1980).
i Thereaf ter, the NRC decided to conduct an " adjudicatory" pro-ceeding to determine what, if any, action should be taken.
The NRC also established a task force to analyze and report to the i
NRC on the reactor accident risk (both in terms of probability and consequences) at Indian Point compared to reactor accident risk at other sites.
Order at 3, 5-6 (filed May 30, 1980).
l This task force concluded that the "overall (i.e_., socie-tal) risk of the Indian Point reactor is about the same as a typical reactor on a typical site."
Task Force Report on Interim Operation of Indian Point 40 (NUREG-0715) (1980)
(Indian Point Task Force Report).
With respect to the level of safety to individuals, the task force concluded that the Indian Point units posed 30 to 50 times less risk to persons and property than the posculated typical (Surry) reactor.
Id. at 34.1 I
l 1.
'Ihe Indian Point Task Force Report is not the only study which arrived at this mnclusion. 'Ibe task force's safety analysis is generally consistent with an analysis prepared by Westinghouse Electric Corporation, which concitded that the risk of Indian Point is substantially less than the postulated typical reactor evaluated in the Reactor Safety Study, WASH-1400. Westirghouse/ Offshore Power System (OPS), Report on 'the Evaluation 4
of Residual Risk for the Indian Point Power Plant (filed May 23, 1980).
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e On January 8, 1981, the Commission ordered that hybrid hearings be conducted by an ASLB and permitted continued operation of the plants during the planned hearings.
In re Consolidated Edison Co. (Indian Point, Units 2 and 3), 13 N. R.C. 1 (1981).
Although the hearing is to use "the full procedural format of a trial-type adjudication, including discovery and cross-examination," the Commission exempted this hearing from the application of the important procedural requirements of 10 C.F.R. Part 2 (1981).
In re Consolidated Edison Co., 13 N.R.C. at 5& n.4.
Although the population characteristics of the Indian Point site had been fully examined prior to the issuance of a license, the Commission emphasized that its " primary concern is the extent to which the population around Indian Point affects the risk posed by Indian Point as compared to the spectrum of risks posed by other nuclear plants."
Id. at 6.
1 The Commission directed the ASLB to address an ambitious list of issues which includes:
the level of risk posed by serious accidents, including incredible accidents, at this site; the improvements in safety which will result from the measures taken pursuant to the Order of the Director of NRR; the status of emergency planning, including improvements that can be made; the level of safety at Indian Point compared to the level of safety at the site of other operating facilities; the economic, environmental, energy or other consequences of a- -
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shutdown; atid tne of ficial posicion of the Governor of.the 1
State of New York.
Id. at 7-8.
The Commission wrote,
" Although normal ex parte constraints will apply to communica-tions to the Licensing Board, the Commission will not be limited in its ability to obtain information with respect to Indian Point from any source."
Id. at 5 n.4.
On September.18, 1981, the Commission revised its January Order in an ef fort to limit the contentions that would be considered, to clarify the risk analysis requited, and to appoint an ASLB.
Memorandum and Order at 1-4 (NRC, filed Sept.
18, 1981) (September Order); 45 Fed. Reg. 47,330 (Sept. 25, 1981).
On October 7, 1981, the ASLB ordered that requests to be admitted as parties and to intervene must be filed by November 6, 1981.
46 Fed. Reg. 49,688 (Oct. 7, 1981).
I.
COMMENCEMENT OF AN ADJUDICATORY PROCEEDING PRIOR TO COMPLETION OF ONGOING PROCEEDINGS TO ESTABLISH GENERIC STANDARDS CONSTITUTES A DENIAL TO LICENSEES OF PROCEDURAL DUE PROCESS The public interest requires the prompt resolution of j
generic issues prior to the commencement of any Indian Point site-specific proceeding.1 Congress has directed the NRC to 1.
Petitioner admits the issues it raises are not limited to the Indian Ibint plants. Petition 1 10. The promulgation of generic standards would not only apprise other licensees of their dutier., J.t would avoid the unnecessary litigation of issues..
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e develop, submit to the Congress, and imple-ment, as soon as practicable after notice and opportunity for public comment, a com-prehensive plan for the systematic safety evaluation of all currently operating utilization facilicios NRC Appropriations Act, Act of June 30, 1980, Pub.L.No.96-295, S 110(a), 94 Stat. 785 (1980) (emphasis added).
The NRC is specifically directed to ascertain each f acility's level of compliance with significant rules and regulations pertaining to the public health and safety.
The NRC also is to develop a schedule for incorporating technical solutions to unresolved 1
generic safety issues into its regulations.
Id. S 110 ( b ).
Congress, thus, has directed the NRC to proceed with the establishment of a comprehensive plan to set standards for an evaluation of the safety of all operating nuclear power plants.
The NRC Appropriations Act forbids inclusion of a requirement that the NRC address compliance with NRC rules and regulations absent a " comprehensive plan for.
. systematic safety evaluation" for all plants.
No plan exists and to mandate a unique proceeding for one site is to violate the congressional intent.
See City of Santa Clara v. Andrus, 572 F.2d 660, 677 (9th Cir.) (citations omitted) (" administrative actions taken in violation of statutory authorization or requirement are of no effect"), cert. denied, 439 U.S. 859 (1978); United Steelworkers v. NLRB, 390 F.2d 846, 851
( D.C.Cir. ) (" Administrative agencies will be required to follow l
l Congressional mandate, whether explicit or ascertainable as
-9_
inherent in underlying policy."), cert. denied, 391 U.S. 904 (1968); Summit Nursing Home, Inc. v. United States, 572 F.2d 737, 742 (Ct.C1. 1978) (citation omitted) ("It is well settled, that administrative agencies are required to follow a congressional mandate.").
Underlying the issues raised by the NRC's January Order (and the Petition) are broad policy questions which are currently the focus of major NRC generic proceedings and studies.
Without the articulation and publication of this revised safety philosophy, there can be neither a fair nor even an adequate analysis of the comparative safety of the Indian Point facilities.
Since the filing of the Petition, the Cc..' mission has:
(1) initiated establishment of an overall safety goal in March 1981, NRC, Toward a Safety Goal: Discussion of Pre-liminary Policy Considerations (NUREG-0764);
(2) noticed a rulemaking process on damaged cores on October 2, 1980, 45 Fed. Reg. 65,474; (3) begun preparation of a Procedures Guide for applica-tion of probabilistic analysis to all._ nuclear power plants on May 27, 1981, 4 6 Fed. Reg. 28,536 ;
(4) considered establishment of minimum engineered safety features, 45 Fed. Reg. 50,350, 50,351 (1980); and (5) initiated implementation of a TMI Action Plan in November 1980.
NRC, Clarification of TMI Action Plan Require-ments (NUREG-0 737) (1980); NRC, NRC Action Plan Developed as a Result of the TMI Accident (NUREG-0660) (1980).1 The litigation of issues prior to the enunciation of industry-wide standards 2
concerning them constitutes a denial of due process of law to the licensees.3 The Commission's own position regarding generic proceed-ings is consistent with the approach li,censees advocate here:
We agree with the Commission's position that it could properly consider the complax issue of nuclear waste disposal in a
" generic" proceeding such as rulemaki'ng, and then apply its determinations in'sub-sequent adjudicatory proceedings.
1.
In addition, many of the petitioner's concerns have been resolved as the plants have been.nodified to meet them. See In re Consolidated
' - ~ ' - -
Edison Co.,11 N.R.C. at 369-70.
2.
Although the licensees addressed this question following the May l
30, 980 & der, Licensees' Mation for aeconsideration of mat Portion of the Ccmmission's Order of May 30, 1980 Which Directs Mjudicatory Hearings at 10-12 (filed July 25, 1980), the Cmmission failed to a$ dress it in its January Order.
Instead, the Cmmission focused on the issue of ccraparative risk between Indian Point and other sites.
In re Consolidated Edison Co.,
13 N.R.C. at 6.
In its January Order, the Comnission implicitly acknowledged that standards do not exist for this proceeding by requesting its staff as a l
" highest priority" to formulate options on how to address the generic question of the operation of nuclear reactors in areas of high population density through a generic proceeding.
Id. at 2 & n.2.
3.
Due process of law governs standards for both rulemaking and adjudication. See, e.3,., Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 541-42 (1978); }brgan v. thited States, 304 U.S.1,18-21 (1938);
Hoff:nar>-La Pcche, Inc. v. Kleirdienst, 478 F.2d 1,12 (3d Cir.19 73).
In licensing matters, particularly, the fundamental requirenents of due process must be met. Bell v. Burson, 402 U.S. 535, 539 (19 71); Ibrnsby v.
Allen, 326 F.2d 605, 608 (5th Cir.1964). 1
. - ~. -.
Minnesota v. NRC, 602 F.2d 412, 416 (D.C.Cir. 1979).1 See Vermont. Yankee Nuclear Power Corp. v. NRDC, 435 U.S.
519, 535 n.13 (1978) (generic fuel cycle rulemaking); Nader v. Ray, 363 F.Supp. 946, 955 (D.D.C. 1973) (generic treatment of emergency core cooling system).
Agencies should use their rulemaking powers in lieu of adjudication.
SEC v. Chenery Corp., 332 U.S.
194, 202 (1947);
NLRB v. Majestic Weaving Co., 355 F.2d 854, 860 (2d Cir.
1966).
The Supreme Court in NLRB v. Wyman-Gordon Co., 394 U.S.
759, 764 (1969) (emphasis added) (citation omitted), stated:
The rule-making provisions of (the Administrative Procedure] Act
. were designed to assure fairness and mature consideration of rules of general applica-tion.
They may not be avoided by the process of making rules in the course of adjudicatory proceedings.
See Chrysler Corp. v.
Brown, 441 U.S. 281, 316 (1979)
(Congress, in enacting the Administrative Procedure Act (APA),
"made a judgment that notions of fairness and informed adminis-trative decisionmaking require that agency decisions be made i
only after affording interested persons notice and an oppor-1.
'Ihis position was recently affirmed by then-Chahman of the NRC Joseph M. Hendrie. Statement of Joseph M. iiendrie, Q1 airman, NE<C, Concerning the Cmmission's FY 1982 Budget Fequest before the Subcmm. on Energy, Conservation and Ebwer of the Cam. on Energy and Ccmnerce, 97th Corg.,1st Sess., at 38 (Mar. 30,1981) (emphasis added) ("'Ihe Cmmission has decided that during this (nuclear waste] proceedirg, the issues being considered in this rulemaking should not be addressed in individual licens-iry proceedings but all current licensing proceedings will be subject to whatever final determinations are reached in this proceedirg."). i
^
o tunity to comment") ; Mo rton v. Ruiz, 415 U.S.
199, 232 (1974)
(citation omitted) ( APA intended to provide "that administra-tive policies af fecting individual rights and obligations be promulgated pursuant to certain stated procedures so as to j
avoid the inherently arbitrary nature of unpublished ad hoc determinations").
Principles of fairness--due process--mandate that rule-makings presently underway be completed so that known standards exist prior to commencement of the Indian Point proceeding.
The NRC is charged with administering a statute couched in the broad terms of protecting the public health and safety, 42 U.S.C. 5 2201; "it is imperative to narrow, clarify and i
explain this general directive" through standards.
City of Lawrence v. CAB, 343 F.2d 583, 587 (1st Cir. 1965).
Such
"(s] tandards are necessary.
for reasons of f airness (and]
to maintain the independence of the agencies, (F] rom the failure to develop and abide by standards flow errors."-
Id. ; see Power Reactor Development Co. v. International Union I
of Electrical, Radio and Machine Workers (International Union),
367 U.S. 396, 404 (1961) (Atomic Energy Act " clearly contemplates that the Commission shall by regulation set forth what the public safety requires as a prerequisite to the issuance of any license"); 2 Davis, Administrative Law Treatise S 7.26, at 131 (2d ed. 1979) (" Lack of standards or rules to guide discretion.
. may encourage arbitrary and
discriminatory action.
").
Notice prior to promulgation of standards and public participation through rulemakings minimize the potential for unf air treatment of one regulatee.
, National Petroleum Refiners Association v.
FTC, 482 F.2d 672, 683 (D.C.Cir. 1973), cert. denied, 415 U.S. 951 (1974).1 The proposed discretionary adjudication will address the issue of "how do the risks posed by Indian Point Units 2 and 3 compare with the range of risks posed by other nuclear power plants licensed to operate by the Commission?", In re Consoli-dated Edison Co.,13 N.R.C. at 8.
Yet, the licensees have been given no notice of what new level of safety will be acceptable for Indian Point or acceptable for other nuclear power plants.
The NRC's decisions "must not only be lawful--(they]
must be lawfully made as well.
Indeed, that is what the due process clause is all about.
[0]ne element of a lawfully made decision is that it accords with previously stated and clearly articulated rules."
J. Skelly Wright, Beyond Discretionary Justice, 81 Yale L.J. 575, 591 (1972) (emphasis added) (footnote omitted); see Burlincton Truck Lines, Inc. v.
United States, 371 U.S. 156, 165-68 (1962); Secretary of 1.
" Regulatory systems which operate without rales are inherently irrational and arbitrary. The purpose of such a system is presunably to bring primary coMuct into conformance with agreed upon societal nocus.
Yet a system operating without rules cannot possibly achieve this goal, since the people beirg regulated are not inforned of what the societal norms are."
J. Skelly Wright, BeyoM Discretionary Justice, 81 Yale L.J.
575, 589 (1972).
~
Agriculture v. United States, 347 U.S.
645, 653-54 (1954), Ohio Bell Telephone Co. v. _ Public Utilities Commission, 301 U.S.
292, 303-05 (1937).
Because the proposed discretionary adjudication fails to give the licensees "' fair notice or warning'" of what is acceptable so they may act accordingly, Parker v.
Levy, 417 U.S. 733, 752 (1974), quoting Smith v. Goguen, 415 U.S. 566, 572 (19 74), it is unconstitutionally void for vagueness.
Coates v. City of Cincinnati, 40 2 U. S. 611, 614, ( 19 71) ("no standard of conduct is specified at all").
The rule that the requirements of a statute must be specified clearly and precisely has been defined as "a basic principle of due process."
Grayned v. City of Rockford, 408 U.S.104,108 (19 72).
A basic constitutional assumption has always been that one "is free to steer between lawf ul and unlawful conduct," and that the laws are to "give the person of ordinary intelligence a reasonable opportunity to know what is prohibited."
Id.
The contemplated proceeding illegally " trap (s] the innocent by not providing fair warning."
Id. (footnote omitted).
f Not only are "there [here] no standards governing the exercise of discretion," the proposed proceeding " permits and i
encourages _ an arbitrary and discriminatory enforcement of the.
1 law."
Papachristou v. City of Jacksonville, 405 U.S. 156, 170 (19 72).
Vague, inconsistent " goals" and " suggestions" as to what might satisfy agency requirements have been harshly dealt t
i O
with by the courts.
Paccar, Inc. v. NHTSA, 573 F.2d 632, 645-46 (9th Cir.), cert, denied, 439 U.S. 862 (1978), emphasized a specific reason for plain standards:
Statutes prescribing penalties, civil or criminal, must be draf ted without ambigu-ity.
Successive authorities of NHTSA might take an entirely different view than that announced by the incumbents, and subjecting
[ regulated parties] to such a risk does not comport with due process requirements.
Such "definitional uncertainty is open invitation, if indeed not inevitably an antecedent, to virtually unrestrained administration."
Ricks v. District of Columbia, 414 F.2d 1097, 1101 (D.C.Cir. 1968).
The standardless proceeding to be held "'does not provide for government by clearly defined laws, but rather for government by the moment-to-moment opinions.'"
Id. (footnote omitted).
The ASLB may not constitutionally hold a herring "without any legally fixed standards," and decide "what is prohibited and what is not."
Giaccio v.
Pennsylvania, 382 U.S.
399, 403 (1966).
Such a procedure "impermissibly delegates basic policy matters (to the ASLB] on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discrimin-l atory application."
Grayned v. City of Rockford, 408 U.S. at 108-09 (footnote omitted).
Because " [vl ague [ application of the laws] in any area suffer (s) a constitutional infirmity," Ashton v. Kentucky, 384 U.S.
195, 200 (1966) (footnote omitted), the standardless
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proceeding contemplated by the Commission is void for vague-ness.
4 The petitioner admitted that the NRC must " decide crucial policy matters of first impression in this case."
Union of Concerned Scientists' Comment on Director's Decision Under 10 CFR 2.206, at 4 (filed Mar. 10, 1980).
Yet, a case-by-case adjudication of " crucial policy matters of first impression" necessarily " avoid [s] an overall policy statement of approach."
American Airlines,-Inc. v. CAB, 359 F.2d 624, 630 n.16 (D.C.Cir.), cert. denied, 385 U.S. 843 (1966).
The " breadth of the questions involved" requires that rulemakings should be completed first.
Minnesota v. NRC, 602 F.2d at 417 (generic consideration of waste disposal).
While the line of dividing them may not always be a br~ight one, [there is] a recog-nized distinction in administrative law between proceedings for the purpose of promulgating policy-type rules or stand-ards, on the one hand, and proceedings designed to adjudicate disputed facts in particular cases on the other.
United States v. Florida East Coast Ry.,
410 U.S. 224, 245 (1973), accord, Independent Bankers Association v.
Board of Governors of the Federal Reserve System, 516 F.2d 1206, 1215 (D.C.Cir. 1975) (agencies generally employ rulemaking to resolve broad policy questions).
Rulemaking is "particularly adapted to and needful for sound evolution of policy in guiding the future development of industries subject to intensive administrative regulation in the public interest."
American 4 ;
_,,,, _. _. _. ~. _
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Airlines, Inc. v. CAB, 3 59 F.2d at 629 (emphasis added);
accord _, WBEN, Inc. v. _ United S_tates, 39 6 F.2d 601, 618 (2d Cir.), cert. denied, 39 3 U.S. 914 (1968).
Generic proceedings, like the Indian Point hearings, address complex,. technical issues, and rulemaking is the "more I
suitable context," American Commercial Lines, Inc. v.
Louis-ville and Nashville R.R.,
39 2 U.S. 571, 592 (1968),1 especially when efforts to resolve generic issues are underway.2 See Ford Mo to r Co. v. FTC, 654 F.2d 599, 6 01-0 2 (9 th Cir,. 1981) (because a "pending rulemaking proceeding and this adjudication seek to remedy, more or less, the same credit practices" and "the rule of the case
. will have general-application," the agency
" exceeded its authority by proceeding to create new law by 1.
Rulemakirg " opens up the process of agency palicy innovation to a broad range of criticism, advice and data that is ordinarily less likely to be forthconing in adjudication." National Petroleum Refiners Association
- v. FIC, 482 F.2d at 683; see _ Minnesota v. NRC, 602 F.2d at 419 (rulemakirg would keep the NRC and the industry abreast of the " continuing evolution of the state of pertinent knowledge"); Ecology Action v. AEC, 492 F.2d 998, 1002 (2d Cir.1974) (citations omitted) ("the idea that a licensing agency should eMeavor to identify... issues catmon to many (facilities] and handle then in ' generic' proceedings would seen to benefit all parties");
National Tbur Brokers Asmciation v. United States, 591 F.2d 896, 902
( D.C.Cir. 19 78) (rulemakirg allows "the agency to benefit fran the expertise and input of the parties who file camnents with regard to the proposed rule"); Texaco, Inc. v. FPC, 412 F.2d 740, 744 (3d Cir.1969) l (agency needs "to educate itself before establishiry rules ad procedures l
which have a substantial 1:: pact on those regulated").
l 2.
The NRC's Statenent of Policy strongly supports the use of generic rulemakirg to resolve issues arising out of the Three !iile Island Chit 2 accident in March 1979. As " policy rather than factual or legal decisions" are rest often involved, a generic resolution would be the most resErnsible course. NRC, Further Commission Guidance for Power Reactor Operatirg Licenses:
Statement of Iblicy at 6-7 (June 16,1980). --
adjudication rather than by rulemaking"); Patel v.
INS, 638 F. 2d 1199, 1204 (9 th Cir.19 80) (agency " recognized the desirability of establishing a job-creation standard by rulemaking when it proposed the 19 73 regulation" although it did not include the standard in the rule, and court
" conclude [d] that if the INS wished to add the job-creation criterion, it should have done so in a rulemaking proce-dure").
A preliminary safety goal proposal has been issued by the NRC.
NRC, Toward a Safety Goal: Discussion of Preliminary Policy Considerations (NUREG-0764) (1981); see 45 Fed. Reg.
71,023 (1980) (notification of the NRC's plan to promulgate a safety goal); Plan for Developing a Safety Goal (NUREG-0735)
(1980); An Approach to Quantitative Safety Goals for Nuclear Power Plants (NUREG-0739) (1980).
Additionally, the petitioner and the nuclear industry have been allowed to participate in the establishment of this safety goal.
They have a forum in which their concerns and grievances are being addressed.1 1.
See T. Cochran, D. MacIman, R. Pollard, & E. Weiss, Cmments.on the NRC Office of Iblicy Evaluation's " Discussion Paper: Safety Goals for Nuclear Power Plants" (July 1981). 'Ihe UCS presented its views, sich include an alternative safety goal to~that presented by the NRC, at an NRC workshop in Harpers Ferry, West Virginia, on July 23, 1981.
See also Atomic Industrial Ebrum, A Proposed Approach to the Estab'IEErent aM Use of Quantitative Safety Goals in the Nuclear Pegulatory Process (May 1981).
'Ihe Atomic Industrial Ebrun (AIF) has recommeMed that the Cmanission issue a policy statenent that iMividual hearings will not preenpt generic proceedings.
Ietter fran D. Clark Gibbs to Secretary of the Cmmission at 2 (Dec. 31,1980); see generally _ Atomic Industrial Forun Cmmittee on Reactor Licensing and Safety, Conments on 10 CFR Bart'50, Cemestic Licensing of Production and Utilization Facilities [--]
Consideration of Degraded or Melted Cores in Safety Regulation, Pdvance -
____j
Most importantly, the Congress expressly adopted this positioihinthefollowingwords:
It is the Committee's intention that the NRC follow the standard rulemaking pro-cedure in dealing with the safety goal issues as it does with other proposed rule changes.
Energy and Water Development Appropriation Bill, 1982, H.R.
Rep.No. 177, 97th Cong., 1st Sess. 151-52 (1981) (emphasis added).
The NRC's decision to promulgate a safety goal is supplemented by 42 U.S.C.A. S 5845(f) (Supp. l980).1 The NRC has issued an Advance Notice of Rulemaking on damaged core issues.
45 Fed. Reg. 65,474 (1980). -The AIF has simultaneously taken steps to formulate its suggestions regard-ing core damage through the Industry Degraded Core Rulemaking
( IDCOR) Program which has, superseded the AIF Subcommittee on Degraded Core Rulemaking.
See Atomic Industrial Forum Commit-tee on Reactor Licensing and Safety Comments on 10 CFR Part 50, Domestic Licensing of Production and Utilization Facilities (--]
Notice of Proposed allemaking (45 Fed. Reg. 65,474), October 2,1980 (Dec.
1980). @e AIF supports "[aln integrated approach to rulemakings, with priority attention given to development of a safety goal ard methMol-ogy."
tatter from Byron Ime, Jr. to the Honorable John Ahearne at 1 (Dec.
31, 1980). LYon canpletion of the safety goal rulemaking, research and analysis should then be performed to determine whether to proceed with the damaged core rulenaking based upon technical considerations. Istter frau D. Clark Gibbs to Secretary of the Ccmmission at 2.
@e NRC staff's lorg-range research plan advocates a broad basis of technical information sufficient to support a rulemaking. Hemorardun fran William J. 'Dircks to 0:mmissioners at 2 (SECY-81-229) (Apr. 9, 1981).
1.
Section 5845(f) provides that the "Ca:tnission shall develop a long-term plan for projects for the developnent of new or improved safety systems for nuclear power plants."
42 U.S.C.A. S 5845(f). _
Consideration of Degraded or Melted Cores in Safety Regulation, Advance Notice of Proposed Rulemaking ( 4 5 Fed. Reg. 6 5,4 74 ),
October 2, 1980 (Dec. 31, 1980).
Additionally, the NRC has been exploring ways to system-atically apply probabilistic analysis to nuclear power plants.
The NRC, in its Interim Reliability Evaluation Program (IREP) which is now underway, is developing and giving trial use to a procedures guide which could be the basis for systematic analysis of all nuclear power plants, a National Reliability Evaluation Program (NREP).
46 Fed. Reg. 28,536 (1981) (emphasis added).
to further this program, the NRR has awarded grants to the Institute of Electrical and Electronics Engineers ($238,000) and the American Nuclear Society (S228,000).
Id.1 Thus, there has been significant progress in the establishment of quantitative safety goals for industry-wide application, the analysis of damaged core phenomena, and the preparation of a probabilistic analysis for systematic evaluation of all reactor units.
Prompt completion is a l
necessary precondition to a fair and meaningful adjudication and is in the public interest, for
[t]he comprehensive, rather than the indi-vidual, treatment may indeed be necessary l
for quick effective relief.
To require separate judicial proceedings would be to create delay where in the interest or public health there should be
[
1.
The IREP program provides for analyses of five nuclear power j
plants.
i 21 -
1
\\
prompt action.
A single administrative
. is constitutionally per-proceeding missible measured by the requirements of
't:rocedural"due process.
Weinberger v.
Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 625 (1973) (citation omitted) (emphasis added).
II.
PRINCIPLES OF RES JUDICATA AND COLLATERAL ESTOPPEL BAR RECONSIDERATION OF THE PHYSICAL AND POPULATION CHARACTERISTICS OF THE INDIAN POINT SITE A finding that the Indian Point site was safe was an essential pre-condition to the issuance of construction permits and operating licenses.1
"[T]he site and all its properties are among the most important ingredients of a finding of safety vel non."
Power Reactor Development Co. v.
International Union, 3 67 U.S. at 414.
In 19 74, regarding existing sites including Indian Point, the NRC wrote:
Population density always has been an important consideration in the process for determining the suitability of any proposed site and nuclear plant design.
All presently approved sites have been found, in terms of population density as well as other considerations, to be acceptable by the AEC.
1.
See Bbrthern Indiana Public Service Co._ _. Porter County Gapter v
of the Izaak Walton _ League, Inc., 423 U.S.12 (19 75), o_n, renand, Porter County Qapter of the Izaak Walton Ieague, Inc. v. AEC, 533 F.2d 1011 (7th Cir.), cert. denied, 43 U.S. 945 (1976); Power Ibactor Develognent Co. v.
International Union, 367 U.S. at 414; New Ehglard Coalition on Nuclear Ibllution v. NRC, 582 F.2d 87 (1st Cir.1978); Bbrth Anna Environmental Coalition v. NRC, 533 F.2d 655 (D.C.Cir.19 76)...
Press Release No. T-160, AEC Makes Public Staff Working Paper on Population Density Around Nuclear Power Plant Sites 1-2 (Apr. 9, 1974) (emphasis added) (Press Release).
Despite that, the principal purpose of.this proceeding is "a final decision on the long-term acceptability on the Indian Point site," In re Consolidated Edison Co.,
13 N.R.C. at 5, and the primary concern expressed "is the extent to which the population around Indian Point affects the risks posed by Indian Point."
Id. at 6.
In the absence of changes in the site or new facts relating to the site, elen entary principles of res judicata and collateral estoppel bar readjudication of its suitability.
Indian Point's physical characteristics were subjected to extensive study.
The NRC fully considered the site "in terms of population density as well as other considerations."
Press 1
Release at 1-2.
Indian Point met the unchanged requirements 1.
'Ihe exclusionary area and the low ppulation zone (LPZ) are established on the basis of the maximun radiation dose to which an individual can safely be exposed in the event of a major credible accident and arbody the idea of individual risk. 10 C.F.R. SS 100.3(a),.3(b),
.11(a)(1),.ll(a)(2). 'Ihe ppulation center distance requirenent, id.
SS 100.3(c),.11(a)(3), incorporates the concept of societal risk. 3ee In re Public Service Co. (Seabrook Station, Units 1 and 2), 6 N.R.C. 33, 49 (1977), aff'd, 7 N.R.C.1 (1978) (citation cmitted) (footnote anitted)
("[P]rotecem; irdividuals... is (accanplished] through the dose limita-tions and other protective requirements applicable up to the LPZ bound-ary....
[T]he ppulation center requirenent is imposed to insure that the canulative expsure doses to the population as a wtule is kept within bounds in the event of a pstulated major accident."). See also Statenent of Consideration, Peactor Site Criteria, 27 Fed. Reg. 3,509 (1962).
t of the NRC's legal standards--the Siting Criteria.1 See generally North Anna Environmental' Coalition v. NRC, 533 F.2d
~
655, 659 (D.C.Cir. 1976); Porter County Chapter of the Izaak Walton League, Inc. v. AEC, 533 F.2d 1011, 1016 (7th Cir.),
cert. denied, 429 U.S. 945 (1976).
The general population in the vicinity of Indian Point has not e::ceeded estimates.
The distance of Indian Point from New York City has not changed.
Evidence of the actual cumulative population at various distances from the site was presented and considered prior to the issuance of construction permits and operating licenses for both plants.
Substantial population increases were projected..
J The AEC's Safety Evaluation Report in the Indian Point 3 construction permit proceeding contained the following projected cumulative population for 1980:
1 mile--2,100; 2 miles--20,900; 3 miles--59,520; 4 miles--78,800, 5 miles--
1.
In re Consolidated Edison Co. (Indian Point, Unit 2), 3 A.E.C. at 151 (construction pennit hearing) ("takig into consideration the site criteria contained in Part 100, the proposed facility can be constructed and operated at the proposed location without undue risk to the health and safety of the public"); In re Consolidated Fdison Co. (Indian Point, Unit 3), 4 A.E.C. at 262 (construction permit hearug) ("takim into considera-tion the site criteria contained in 10 CFR Part 100, the proposed facility can be canstructed and operated at the proposed location without urdue risk l
to the health and safety of the ptblic"); see In re Consolidated Fdison Co.
(Indian mint, thit 2), 6 A.E.C. 751, 752 (1973) (authorization of full power license), aff'd, 7 A.E.C. 323, 328 (1974); In re Consolidated Edison Co. (Indian reint, Unit 2), 7 A.E.C. 971, 973 (1974) (denial of notion to reopen the record); In re Consolidated Edison Co. (Indian Raint,. Unit 3),1 -
N.R.C. 593, 599-601, aff'd and modified in part on other grounds, 2 N.R.C.
379, aff'd and vacated insofar as it modified the cooling tower stipulation, 2 N.R.C. 835 (1975) (authorization of full p3wer license)....-
108,060, and 10 miles--312,640.
Safety Evaluation by the Division of Reactor Licensing, AEC, at 4-5, In re Consolidated Edison (Indian Point, Un i t 3 ), No. 5 0-2 8 6 ( Feb. 20, 19 69).
Virtually the same projections were made in the Indian Point 2 proceedings.
For example, the 19 80 population projection at 10 miles was 325,000.
In re Consolidated Edison Co. (Indian Point Unit 2), 3 A.E.C. at 145; see In re Consolidated Edison Co.
(Indian Point Unit 2), 5 A.E.C. 43, 45 (1972) (authorization of limited operation) (projected 19 80 population a,,t 15 miles--
670,000).
The Safety Evaluation Report prepared prior to the authorization of the full power license for Indian Point 3 estimated that the population within a ten mile radius by 2010 would be more than 700,000.
Safety Evaluation cy the Directorate of Reactor Licensing, AEC, at 2.1-2.6, 2.8-2.9 (Sept. 21, 19 73).
According to updated population estimates, the population surrounding the Indian Point site has not exceeded the 1980 projections, let alone the projections for 2010.
Additionally, the Atomic Safety and Licensing Appeal Board l
found that the site was safe insofar as its physical characteristics were concerned.
See, ji.jl., In re Consolidated Edison Co. (Indian Point, Units 1, 2,
and 3), 6 N.R.C. at 624.
As far as the site is concerned, these proceedings were over five years ago..
3 The principle of res judicata applies to the Government as well as private parties. ~ Sunshine Anthracite Coal Co. v.
Adkins, 310 U.S. 381, 402-03 (1940).
See also Montana v.
United States, 440 U.S. 147, 157-58 (19 79) (collateral estoppel applies to the Government); Continental Can Co.,
U.S. A. v.
Marshall, 603 F.2d 59 0, 596 (7th Cir. 19 79).
Res judicata
" bars future litigation between the same parties not only as to all issues actually raised and decided but also as to those which could have been raised."
Angel v. Bullington, 330 U.S.
183,18 6 (19 4 7) (citations omitted) ; accord, Continental Can Co.,
U.S. A.
- v. Marshall, 603 F.2d at 59 3-9 4 n.4.
The NRC, as successor to the AEC's licensing and regulatory functions, 42 U.S.C. S 5814, is bound by the prior site determinations, see Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381,1 and there was notice and opportunity for any interested persons to f
1.
.See also Chited States v. Utah Construction & Minin:] Co., 384 U.S.
394, 422 (1966) (citations canitted) ("then an administrative agency is acting in a judicial capacity ard resolves disputed issues of fact properly.
before it which the parties have had an opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose."); In re Alabama Power Co. (Joseph M. Farley, Units 1 and 2), 7 A.E.C. 210, 211, remrded on other grounds, 7 A.E.C. 203 (19 74). - - -
intervene in these proceedings.1 Consolidated Edison, as. Licensee, was a party to the prior proceedings.
The Authority, as holder of the license for Indian Point 3 and purchaser of that plant from Consolidated Edison, is in privity with Consolidated Edison.
In Power Reactor Development Co. v.
International Union, 367 U.S. at 414 (citation omitted), the Supreme Court expressly rejected the argument that the Commission "may not authorize the construction of a reactor near a large population center without ' compelling reasons' for doing so."
The Court deter-mined that
[t]he statute and regulations say nothing about " compelling reasons" Of
. the problem of safety.
- course, is most acute when a reactor, potentially d angerous, is located near a large city.
But the Commission found reasonable
. that the reactor could be assurance operated at the proposed location, and that is enough to satisfy the requirements of law.
The Commission recognized that the site and all of its properties are among the most important ingredients of a finding of safety vel non.
It considered the site along with all other relevant data.
Id. (emphasis added).
1.
See Penn.-Central Merger & N&W Inclusion Cases, 389 U.S. 486, 505-l 506 (1968) ("[ Plaintiff] had an adequate opportunity to join in the litiga-tion.... [T]he d(: cision of the... court... precludes further
... adjudication of the issues upon which it passes."); Nader v. NRC, 513 l
F.2d 1045,1054 (D.C.Cir.1975); Easton Utilities Cmm'n v. AK, 424 F.2d l
847, 851-52 (D.C.Cir.1970); Ped River Broadcasting Co. v. FCC, 98 F.2d l
282, 286-87 (D.C.Cir.), cert. denied, 305 U.S. 625 (1938).
l l
27 -
The public interest requires that licensees not be forced to engage in " endurance contests modeled after relay races"1 to again and again justify the safety of. acreage.
The policy con-siderations of " finality to litigation, prevention of needless 1
litigation, avoidance of unnecessary burdens of time and
. are as relevant to the administrative process as expense to the judicial" process.
Painters' District Council No. 38 v.
Edgewood Contracting Co., 416 F.2d 1081, 1084 (5th Cir. 1969);
see Montana v. United States, 440 U.S. at 153-54 (footnote omitted) (doctrines of finality foster "the conclusive resolu-tion of disputes" by avoiding "the expense and vexation attend-ing multiple lawsuits, [byl conserv[ing] judicial resources, and (by] foster [ing! reliance on judicial action by minimizing i
the possibility of inconsistent decisions").
hten as here, there has been no change in the binding legal standards, "[nlo such policy considerations mitigate against the application of collateral estoppel to f acts pre-viously adjudicated Indeed, all the judicial policies behind collateral estoppel apply."
Mosher Steel Co. v. NLRB, 568 F.2d 436, 440 (5th Cir. 1978) (citation omitted); s e e_
Continental Can Co.,
U.S.A. v. Marshall, 603 F.2d at 596-97.
1.
Easton Utilities Canm'n v. AEC, 424 F.2d at 852 ("We do not find in statute or case law any grourd for accepting the premise that [adminis-trative proceedings] are... erdurance contests nodeled after relay races in which the baton of proceeding is passed... successively frcm one legally exhausted contestant to a newly arriving legal stranger.").
The " litigation of issues at some point must come to an end."
James Talcott, Inc. v. Allahabad Bank, Ltd., 444 F.2d 451, 463 (5th Cir.), cert, denied, 404 U.S. 940 (1971).1 III. THE COMMISSION'S FAILURE TO ADHERE TO ITS EXISTING SITING CRITERIA CONSTITUTES ACTION WHICH IS ARBITRARY, CAPRICIOUS, AN ABUSE OF DISCRETION, AND A DEPRIVATION OF PROPERTY WITHOUT DUE PROCESS OF LAW A.
The Siting Criteria are violated by the Commission's January Order.
There is nothing new about the Indian Point site.
It was found suitable years ago.
Bonds were issued, the plants were built.
The Commission's af firmative finding of the safety of the site was a pre-condition for granting the licenses.
1.
Tb proceed with this hearing in the absence of changed circum-stances also violates the guarantee of due process of law because it is inc3nsistent with the purposes of 10 C.F.R. S 2.206 (1981), governing petitions to institute proceedings to suspend, modify or revoke an operating license.
"The pur;cse of 10 CFR S 2.206 is fully consistent with the principle that agency decisions must be accarded finality, once all administrative and judicial appeals have been exhausted."
In re Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear 1), 7 N.R.C.
429, 431 (1978), aff'd, Poder County Chapter of the Izaak Walton League, Inc. v. NRC, 606 F.2d 1363 (D.C.Cir. 1979). Secrion 2.206 is not a
" vehicle for reconsideration of issues previously decided, or for avoiding an existing forum in which they more logically should be presented."
In re Cbns31idated Edison Co. (Indian Point Station, Units No.1, 2, and 3), 2 N.R.C.173,177 (1975). Yet, the Canmission has not indicated that "the standard [for petitions under 10 C.F.R. 5 2.206] is being changed and not ignored," thereby " assuring that it is faithful and not indifferent to the rule of law."
CBS, Inc. v. FCC, 454 F.2d 1018, 1026 (D.C.Cir. 1971) l (footnote cuitted).
If tne Canmission is in fact changing the standard for I
petitions brought under 10 C.F.R. S 2.206, and not fashioning an hnpermiss-ible special rule for one case, it has not adequately explained the reasons l
for the change. The Ca:rtission must "'do acre than enumerate factual differences... it must explain the relevance of those differences to the purposes of the'" Atcmic Energy Act. CBS, Inc. v. FCC, 454 F.2d at 1026, qu3 ting Melody Music, Inc. v. FCC, 345 F.2d 730, 733 (D.C.Cir.1965).
The application of a new standard would be an abrupt departure from the Commission's longstanding, and congression-ally ratified, siting practices.
Existing Siting Criteria--the generic or legislative rules promulgated by the Commission l
pursuant to congressional authority --have the " force of law."2 Paul v. United States, 371 U.S. 245, 255 (1963); Joseph
- v. CSC, 554 F.2d 1140, 1154 n.26 (D.C.Cir. 1977).
The Commission "is bound not only by the precepts of its governing statute but also by those incorporated into its own regula-tions."
Nader v. NRC, 513 F.2d 1045, 1051 (D.C.Cir. 1975); see Vitarelli v. Seaton, 359 U.S.
535, 539-40 (1959); Service v.
Dulles, 354 U.S. 363, 388 (1957); United States ex rel. Accardi
- v. Shaughnessy, 347 U.S.
260, 266-67 (1954).
The Siting Criteria are " regulations attempt [ing] to accomplish the statutory mandate.
' to prescribe such regulation or orders 1.
See e.g. tbrthern Indiana Public Service Co. v. Porter County Chapter oTEie Izaat Walton League, Inc., 423 U.S.12; New England G3alition on Nuclear Ebilution v. NRC, 582 F.2d 87; tbrth Anna Environ-mental Coalition v. NRC, 533 F.2d 655. Congress may, of course, mandate that an agency use a particular procedure, thereby renoving an agency's L
discretion. However, if an agency has the power i.o develop legal stand-ards, to fill "in the interstices of the Act" by rulenaking or by ad hoc adjudication, the choice of method rests in the first instance within the discretion of the agency.
SEC v. Clenery Corp., 332 U.S. at 202. Cnce an agency exercises this discretion and proceeds by rulenaking, another set of I
legal principles cones into play, and an agency is bound to follow its rules until changed or amended in a subsequent rulemaking.
2.
Canpliance with the Caumission's regulatory guides and working papers concerning site suitability is not required because they do not have '
the binding effect of regulations.
Ibrter County Chapter of the IzaaK l
Walton Iaague, Inc. v. AEC, 533 F.2d at 1016 & n.5; York Camn.ittee for a j
Safe Environnent v. NRC, 527 F.2d 812, 814 (D.C.Cir.1975). 1 l
including standards and restrictions necessary.
governing the design, location, and operation of facilities in order to protect health and to minimize danger to life or property.'"
New England Coalition on Nuclear Pollution v.
NRC, 582 F.2d 87, 91 (1st Cir. 1978) (citation omitted).
Despite the existence of its Siting Criteria, the Commission has stated that its decision as to the "long term i
~
I acceptability" of the Indian Point site will be based on "how extreme are the individual and societal risks
. compared to the spectrum of risks from other operating stations."
In re Consolidated Edison Co., 13 N.R.C. at 5-6.
The January Order requires that the ASLB address the risk that "may be posed by serious accidents at Indian Point 2 and 3, including. accidents not considered in the plants' design' basis, pending and after any improvements" in the levels of emergency planning and safety which result from the Director's Order.
Id. at 7 (emphasis added).
Thus, the adequacy of the site under the AEA having been i
(
determined, any reconsideration contravenes the Siting Criteria.
In clear conflict with the governing precepts of the I
i AEA and the Commission's own siting regulations, the Commission seeks to reopen the issue of the adequacy of the Indian Point site.
See Power Reactor Development Co. v.
International Union, 367 U.S. at 414.
l l
l !
l n--
Legis'.ative rules, such as the Siting Criteria, are
" determinative of the issues or rights to which [they] are addressed," Pacific Gas & Electric Co. v. FPC, 506 F.2d 33, 38 (D.C.Cir. 1974), and, "until amended, are controlling alike upon the [ agency 1 and all others whose rights may be affected by the ( ag ency's] execution of them."
CBS, Inc. v.
United States, 316 U.S.
407, 422 (1942).
The NRC cannot now say that its own Siting Criteria do not apply even if "in this case the Commission thinks that the 'public interest' requires a differ-ent interpretation The Commission's notion of the public interest cannot justify its failure to abide by its own rules and to act in a manner inconsistent with its own precedents."
Teleprompter Cable Communications Corp. v. FCC, 565 F.2d 736, 742'(D.C.Cir. 1977).1 By finding that the Indian Point plants were properly
^
situated, the NRC acted in accordance with the AEA and the regulatione enacted pursuant to that statute.
That finding was a condition precedent to the granting of the operating l
1.
Panhandle F2 stern Pice Line Co. v. FERC, 613 F.2d 1120,1135 (D.C.Cir. 1979), cert. denied, 449 U.S. 889 (1980) (footnote omitted) ("The fact that a regulation as written does not provide [an agency] a quick way to reach a desired result does not authorize it to ignore the regulation or label it 'inaw.giate.'") ; Boston Edison Co. v. FPC, 557 F.2d 845, 849 (D.C.Cir.), cert. denied, 434 U.S. 956 (1977) (agency " acted arbitrarily l
and abused its discretion in applyirg a standard contrary to existirs l
regulations"); In re Pub. Serv. Co. (Seabrook Stations, Units 1 and 2), 6 N.R.C. at 50 n.TJ (1977) ("Until amended by the Ormission... we are bound to ipply the [ Siting Criteria] according to its terms....").
' l l'
License.1 42 U.S.C. S 2235; Power Reactor Development Co. v.
International Union, 367 U.S. at 411.
Indeed, even the Petition did not--as it could not--allege a failure to comply with the Siting Criteria.
It clearly states:
'The NRC has never determined what the consequences would be of a so-called Class 9 accident-especially a core melt down with breach of containment-at the Indian Point site.
Conformance with NRC regulations does not guarantee that sucn an accident will not occur; it is an attempt only to reduce the probability of having one.
~
Petition 1 5 (emphasis added).
The Siting Criteria establish the Commission's previous yet still current, indeed, only, standards that establish acceptable levels of individual and societal risk.
i Essential to the Siting Criteria is protection from a major accident, 10 C.F.R.
S 100.11(a)--a major accident but not 1.
Undergirded by the reasonable assurance that the. public health and safety can ud will be protected, Power Iwactor Development Co. v.
Internatioral Union, 367 U.S. 396; Nader v. NRC, 513 F.2d at 1052, an l
"[a]bsolute[ly] risk-free siting is similar to other absolute r4sitions and arguments that have been rejected by the courts." W rth Anna Environnental Cbalition v. NRC, 533 F.2d at 665 (citaticns cmitted). As rne Court of
--Appeals for the District of Columbia has explained:
As a precondition to grant of a license for operation of a nuclear facility, the Atanic Energy Act explicitly requires a Commission finding that the licensed facility will afford " adequate protection to I
the health and safety of the otolic." The Ccmission has lorg interpreted this prevision as a demand for
" reasonable assurance" of that crotection, and the I
Suprene Court in its Power Beactor decision has squarely sustained that administrative construction.
l Nader v. NBC, 513 F.2d at 1052 (emphasis added) (footnotes cmitted).
1 t
I
~
an accident so unlikely to occur that it is beyond the' realm of reason.1 It is in that context that the Siting Criteria " strike a balance between site isolation and proximity to load (popula-tion] centers."
D.
Bunch, Metropolitan Siting--A Historical Perspective 2 (NUREG-0478) (19 78) (hereinafter Bunch).2 In another departure from its Sitin9 Criteria, the Commis-sion indicates that its ultimate determination will depend upon a comparison of the " risks posed by Indian Point Units 2 and 3 with the range of risks posed by the other nuclear power plants licensed to operate by the Commission."
In re Consolidated Edison, 13 N.R.C. at 8.
The AEA does not speak in terms of relative levels of safety among nuclear facilities.
The AEA does speak in terms of unconditional standards whic'. must be met by every licensee.
Thus, even though a study of the comparative safety of nuclear power plants may be useful for other regulatory purposes, the Commission seeks to do more.
1.
She Sitirg Criteria require that " reactors be m designe3 that no design basis accident will result in calculated offsite doses exceeding specified guideline values... (which] are wil below levels at ;hich serious injury or death would be expected to occur." SECY-7)-59 4, Class 9 Accident Considerations, Ehclosure 1, at 1 (19 79). The size ard distance frcm the site of the exclusion area, the LPZ, and the population center l
distance are based upon the calculation of the radiation dcse exposure resultirg fran a major credible accident.
2.
See_ Proposed Extension of AEC Indemnity Iagislation, Eearirgs before the Subccram. on Iagislation of the Joint Cara. on Atcmic Energy, 89th Cong.,1st Sess. (19 65) (Statenent of James T. Pamey, Canmissioner, AEC), reprinted in Bunch at 32 ("thder the site criteria... provision is made to calance ~~~.. ergineered safeguards in relation to the distance betwen reactor and population centers.").
Such a study can provide no legal basis for determining whether the Indian Point site complies with the requirements of the statute as construed _in the Siting Criteria.
B.
The application of e_xisting Siting Criteria to existing plants has been ratified by Congress.
The Siting Criteria were "a contemporanecos construction by those
. presumably intimately familiar with the legislative history and who [were] charged with enforcement of the" AEA.
Shell Oil Co. v. Kleppe, 4 26 F.Supp. 89 4, 9 01
( D. Colo. 19 7 7 ), aff'd sub nom., Shell Oil Co. v. And rus, 591 F.2d 59 7 (10th Cir. 19 79), aff'd, 446 U.S. 657 (1980)
(citations omitted).
The Joint Committee on Atomic Energy (JCAE) was established to keep Congress "in constant touch with what was happening in this unfolding area of industrial applications of atomic energy."
Siegel v. AEC, 400 F.2d at 783.
In Power Reactor Development Co. v.
International Union, 367 U.S.
at 409, the Supreme Court ' considered this fact l
significant when finding congressional ratification of the AEC regulations there at issue.
Until abolished by the Energy Reorganization Act of 19 74, the JCAE monitored the NRC's siting policy and its balancing of engineered safety features with the site.1 l.
See, e.g., Ietter fran W.H.. Lib
,1ctirg Chairman, AEC, to Senator Bourke Hickenlooper (March 14, 1936), reprinted _in Bunch at 25; Profesed Extension of AEC Indctnity Iagislation, HearingTBefore the Subcanm. on Iagislation of the Joint Canm. on Atomic Energy, 89th Cong.,
1st Sess. (1965) (Statenent of James T. Pamey, Canmissioner, AEC),
When Congress enacted the Energy Reorganization Act of 1974, it restructured nuclear regulation.
However, it did not alter the approach of the Siting Criteria.
Last year, Congress directed the NRC to promulgate siting regulations that "shall specify demographic criteria for facility siting, including maximum population density and population distribution for zones surrounding the facility without regard to any design, engineering, or other dif ferences among such facilities."
Act of June 30, 1980,, Pub.L.No.96-295, S 108, 94 Stat. 783.
Simultaneously, Congress, aware of then existing policy,1 ratified then-existing Siting Criteria insofar as then-existing facilities were concerned.
It specifically exempted from any new siting criteria, construc-tion permits applied for prior to October 1, 1979.
Id.
S 108(b).
By requiring the NRC to promulgate new siting rules and to apply them only prospectively, Congress removed any discretion to apply them retroactively, whether formulated in the NRC's first hybrid investigatory-adjudicatory proceeding, or not.
L reprinted n Bunca at 32.
l 1.
See H. Conf. Pep. Ib. 96-1070, 96th Cong., 2d Sess. 24-25, reprinted in 3 U.S. Code Cong. & Id. News 2267-G8 (1980); Peport of the l
Siting PolTcy Task Force (NUREG-0625) (1979)..
C.
The retroactive application of new siting standards would violate the due process clause.
The Commission cannot impose "new liability.
for past
~
actions taken in good faith reliance" on the NRC's determination that the Indian Point site was a safe location.
NLRB v. Bell-Aero, space Co., 416 U.S.
267, 295 (1974).
The licensees, in reliance upon _the Commission's prior decisions, have procured and expended substantial sums of money for the construction, and, in the case of the Authority, the purchase
- l
~
of Unit 3.1 As the Second Circuit has warned, a decision branding as "unf air" conduct stamped " fair" at the time a party acted, raises judicial. hackles And the hackles bristle still more when a financial' penalty is assessed for action that might well have been avoided if the agency's changed disposition had been earlier made known, or might even have been taken -in express reliance on the standard previously established.
[T]he problem of retroactive application has a somewhat different aspect in cases not of first but of second impression, where an agency alters an estaolished rule I
defin ng permissible conduct which has been generally recognized and relied on through-out the industry that it regulates.
i NLRB v. Majestic Weaving Co., 355-F.2d 854, 860 (2d Cir. 1966)
I 1.
See United States v. Caceres, 440 U.S. 741, 752-53 (1979) (due process cTarm triggered when a person has relied upon an agency rule and a
suffers substantial detriment because of its violation).
(citations omitted) (emphasis added).1 The extent of reliance by the licensees and their inves-tors on the Commission's prior determination is substantial, self-evident, known to the public and to the Commission, and a subject of judicial knowledge.2 As the court in Shell Oil Co.
v.
Kleppe, 426 F.Supp. at 908, stated:
[T]he Government cannot assert that the very oil shale claims it had encouraged are not valid.
The reversal of the original intention of the Interior Department and of Congress requires application of estoppel
- Moreover, against the Government.
where an established rule has long been relied upon by investors, an administrative agency should not reverse its position on a retroactive basis.
Id. at 908 (citations omitted).3 1.
See Patail, molesale & Department Store Union v. ! ERB, 466 F.2d 380, 390 (D.C.Cir.1972) (retroactive application ceteminei oy "whether the... case is one of first impression"; "whether the new rule repre-sents an abrupt departure from well established practice or merely attempts to fill a void in an unsettled area of the law"; "the extent to which the party... relied on the former rule"; "the degree of the burden which a retroactive order imposes"; and "the statutory interest in applying the new rule").
2.
Ibcuments reflecting the financial statements of Consolidated Edison and the Authority, which detail the financing of the Indian Point units, are on file with the NRC.
"It is... well established that a regulatory agency has the right to take official notice of reports filed with it by a regulated canpany."
P. Saldutti & Son, Inc. v. United States, 210 F.Supo. at 313; see Market Street Ry. v. Pa11 road Caan'n, 324 U.S. at 561-62; Wisconsin v. FPC, 201 F.2d at 186.
3.
In Shell Oil Co. v. Kleoce, 426 F.Supp. at 903, the court held that the Department of Interior could not retroactively apply a new stand-
~
ard to determine the validity of oil shale claims because that agency through ptblic statements of its officials and through its rulings "ac-tively encouraged Wsterners to invest in Coloraio's oil shale deposits,"
an investnent "which had been scorned by prudent persons at the turn of the J
When Congress enacted the AEA, the United States entered into a partnership _with the states and private industry to promote and to develop nuclear power for commercial use.1 See Duke Power Co. v. Carolina Environmental Study Group, 438 U.S.
59, 63-65 (1978).
The AEA embodies this' deliberate policy choice.
The Price Anderson Act, 42 U.S.C. S 2210, is a clear cut congressional acknowledgement that, even though nuclear power is not risk free, the public interest requires its development as an energy source This Act incorporates the
" dual purpose of ' protect [ing] the public and
. encouraging the development of the atomic energy industry.'"
Duke Power Co. v. Carolina h:nvironmental Study Group, 438 U.S. at 64 (citation omitted).
The AEA and the Siting Criteria embody this policy _
decision.
Until irrational fears escaped from Three Mile Island, this proceeding would have been unthinkable.
To apply new rules or, as is true in this case, no rules at all, to
~
plants previously licensed at an unchanged site previously l
ruled safe is unconstitutional.
t Century."
r 1.
te history of,the siting policy indicates that "[t]o accccmplish the policy towards peaceful uses of nuclear energy, broad participation on the part of the utility industry was necessary." ainch at 1.
Se shift in
(
policy to balancing site isolation with containment was deemed necessary in order for nuclear power to be feasible for private utilities.
Id.
l l l l
I L
IV.
THE CONSTITUTION REQUIRES THAT THE COMMISSION ESTABLISH COMPELLING REASONS TO JUSTIFY A SFUTDOWN OF INDIAN POINT Consolidated Edison, a privately owned public utility, is a constitutionally protected person.
Its rights arise under the fifth amendment.
See Kaiser Aetna v. United States, 444 U.S. 164 (1979).
Its duty is to protect the rights of its security holders.
hegarding its security holders, the Authority has the same obligation.
Additionally, the Authority as a state governmental agency has a statutory duty to furnish inexpensive electricity 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."
Power Authority Act, 'N.Y.
Pub. Auth. Law SS 1001, 1005 (McKinney Supp. 1980-81).1 Operation of Indian 1.
- raong the ptblic bodies served by Indian Point 3 are 39 cities, tuwns, and villages, 20 school districts, 8 Musing authorities, and 2 water districts.
Bower Authority of tne State of New York, Meeting New York's Energy Needs... Past, Prasent and Future 30 (1980). A state's deteraination of what is in the pelic's interest is a legitimate exercise of governmental power. Canpare the wards of Justice Behnquist writing for the majority in National League of Cities v. Usery, 426 U.S. 833, 855 (1976), " Congress may not exercise that power so as to force directly upon the States its choices as to how essential decisions regarding the conduct of integral governmental functions are to be made," with the words of Justice William O. Douglac:
A State's project is as much a legitimate govern-mental activity whether it is traditional, or a'dn to l
private enterprise, or conducted for profit.
A I
State may deem it as essential t; its own econcay that it own and operate a railroad, a mill, or an irrigation system as it does to own and operate bridges, street lights, or a sewage disp 3 sal plant.
40 -
i l
e Point 3 is crucial to the Authority's capacity to meet its peakload demand and its reserve margin required by the New York Power Pool, and to produce low cost electricity.
The State of New York, pursuant to its powers to protect the public health, safety, and welfare of its people, has declared that "the public interest requires that (the Authority] participate in the generation of supplemental electric power and energy by.
. nuclear means."
Power Authority Act, N.Y. Pub. Auth. Law S 1001 (McKinney Supp.1980-81).1 In our federal syotem, states share power with the federal government, and a state's interest is a fundamental interest protected from commerce clause infringement or impairment by Riat mignt have been viewed in an earlier day as an improvident or even daugerous extension of state activities may today be deened indispensable....
[Alny activity in which a State engages within the limits of its police power is a legitimate governmental activity.
New York v. United States, 326 U.S. 572, 591 (1946) (Dotglas, J.,
dissenting) (citation cmitted). See also New State Ice Co. v. Liebnann, 285 U.S. 262, 311 (1932) (BraMeis, J., dissenting) ("Ib stay experimenta-tion in things social and economic is a grave responsibility....
It is one of the happy incidents of the federal systen that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and econm.ic experiments without risk to the rest of the country.").
1.
See also Power Authority Act, N.Y. Pub. Auth. Law S 1001-a (McKinney supp. 1980-81) (" extraordinary circumstances, including excessive costs, shortages of supply, and the inflated price of fuel threaten the capacity to provide utility service essential to the continued safety, health, prosperity and well-being of the people of the metrop311 tan a ea of the city of New York").
o-the tenth amendment.
arce v. Wichita County, Wichita Falls, Hospital Board, 59 0 F.2d 128, 132 (5th Cir. 19 79 ); _Usery v.
Allegheny County Institution District, 544 F.2d 148, 155 (3d Cir. 19 7 6 ), cert. denied, 430 U.S. 9 46 (1977); Marshall v.
Delaware River & Bay Authority, 4 71 F.Supp. 8 8 6, 892 (D. Del.
19 79).1 Federal legislation that infringes upon state sovereignty is subjected to strict scrutiny.
See National League of Cities.v. Use ry, 4 2 6 U.S. 8 3 3, 8 49 (1976).
The tenth amendment is an affirmative limitation on the exercise of (congressional] power akin to other commerce power af firmative limitations contained in the Constitution.
Congres-sional enactments which may be f ully within the grant of legislative authority con-tained in the Commerce Clause may nonethe-less be invalid because found to offend against the right to trial by jury contained in the Sixth Amendment, or the Due Process Clause'of the Fifth Amendment.
1.
Cf., Buckley v. Valeo, 424 U.S.1, 25 (19 76) (citation onitted)
(first am Te dment) ("In view of the fundamental nature of the right to associate, goverrrnental ' action Milch may have the effect of curtaility tM freedan to associate is subject to the closest scrutiny. '"); Shapiro v.
'Itompson, 394 U.S. 618, 634 (1969) (citations anitted) (emphasis in original) (right to travel) ("any classification which serves to penalize the exercise of (a constitutional] right, unless shown to be necessary to promote a campe11irg gowrnnental interest, is unconstitutional"); Lbited_
States v. Jackson, 390 U.S. 570, 582 (19 68) (citations anitted) ("W1atever might be said of Congress' objectives (in the Federal Kidnapping Act), they canrot be pursued by means that needlessly chill the exercise of basic constitutional rights (including right to jury trial]...; the question is whether that effect is tnnecessary ard therefore excessive.").
Id. at 841 (citations omitted).1 As the Supreme Court has consistently recognized, " [ t] he Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States."
National League of Cities v. Usery, 426 U.S. at 844, quoting Texas v. White, 74 U.S.
(7 Wall.) 700, 725 (1869).
"[N]either government may destroy the other nor curtail in any substantial manner the exercise of its powers."
Metcalf & Eddy v. Mitchell, 269 U.S.
514, 523 (1926).
The Authority acts with the state's power.
In some respects its powers exceed those of the federal government, in others its powers are subordinate, in others they are co-equal.
In its sovereign capacity, the Authority delivers services necessary to the health, safety, and welf are of the citizens of the State of New York.
In addition, the Authority 1.
Mr. Justice Rehnquist, who wrote for the majority in National Iaaque of Cities v. Usery, 426 U.S. 833, had elaborated upon this concept more fully in his dissenting opinion in Fry v. United States, 421 U.S. 542, 552-53 (1975) (citations omitted):
[T]he Tenth Amendment 'is not without significance'
[Ilt is useful to explore further the situation of ar. individual confronted with Canmerce l
Clause regulation.... (Aln individual who attacks an Act of Congress, justified under the Cannerce Clause, on the ground that it infringes his rights under, say, the First or Fifth Amendment, is l
asserting an affirmative constitutional defense of I
his own, one which can limit the exercise of power which is otherwise expressly delegated to Congress.
That the... claim... may succeed... is well established.
I l f
l
(and Consolidated Edison) enters into contractual relations, through issuance of bonds, upon which individuals and businesses--constitutionally protected persons--throughout the nation rely.1 Despite the NRC's previous rulings regarding the site, this proceeding threatens to impair those contracts by depriv-ing them of security and a revenue. source..Thus, while "(i]t is one thing to recognize the authority of Congress to enact laws regulating individual businesses necessarily subject to i
the dual sovereignty of the government of the Nation and of the State in which they reside [,] [il t is quite another to uphold a similar exercise of congressional authority directed, not to a
private citizens, but to the States as States."
Id. at 845; cf. Kaiser Aetna v. United States, 444 U.S. at 174 (if con-gressional regulation of private property constitutes a i
"taking", just compensation.is due).
Because of this difference, the Court in National League of Cities refused to apply the Fair Labor Standards Act to municipalities despite finding a "sufficiently rational relationship to commerce to i
1.
"It is of the essence of sovereignty to be able to make contracts and give consents bearirx3 upon the exertion of governmental puer....
Die reservation to the States by the 'Denth Pmendment protected, and did not destroy, their right to make contracts and give consents where the action m uld not contravene the provisions of the Federal Constitution.... The i
State is free to make contracts with individuals and give consents upon which the other contracting party may rely with respect to a particular use of governmental authority." United States v. Bekins, 304 U.S. 27, 51-52.
(1938).
_ 44 _
validate the application of the overtime provisions to private employers.".Id. at 849 (emphasis added).1 V.
AN ADVERSE RULING FROM A READJUDICATION OF THE INDIAN POINT SITE WOULD RESULT IN AN IMPAIRMENT OF CONTRACT AND A '
TAKING OF PROPERTY WITHOUT JUST COMPENSATION GUARANTEED BY THE FIFTH AMENDMENT The State of New York declared that "the public interest requires that (the Authority] participate in the generation of 1
supplemental electric power and energy by.
. nuclear means."
Power Authority Act, N.Y. Pub. Auth. Law S 1001 (McKinney Supp. 1980-81).
The 'NRC granted a construction i
permit.
The Authority and Consolidated Edison relied upon that permit.2 The NRC granted an operating license.
The Authority and Consolidated Edison relied upon that license.
The Authority issued S1,460,000,000 worth of bonds'in part to raise funds for the purchase of the plant from Consolidated Edison i
1.
Fry v. Chited States, 421 U.S. 542 (1975), is not contrary. As interpreted in National Imague of Cities v. Usery:
'ihe enactnent at issue (in 1~was occasioned by an extremely serious problem icn endangered the well-being of all the consenent parts of our federal l
system and which only collective action by the National Goverment might forestall. 'Ihe means selected were carefully crafted so as not to interfere with the States' freedon beyond a very limited, specific period of time.
National Imague of Cities v. Usery, 426 U.S. at 853 (emphasis added).
2.
Interference with reliance interests may constitute a taking.
See Agins v. City of Tiburon, 447 U.S. 255, 262-63 (1980); Kaiser ; etna v.
United States, 444 U.S. 164, 174-75 (1979).
1 i.
and for its continued operation.
Power Authority of the State of New York, Financial Statements 11 (Dec. 31, 1980).
The Authority pledged its revenues as cecurity and undertook the generation of low cost nuclear energy for the people of the City and State of New York.
Id. at 8.
Now, the Authority furnishes electricity 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."
Power Authority Act, N.Y. Pub. Auth. Law SS 1001, 1005; see id.
S 1001-a.
Consolidated Edison produces, purchases, and distributes power to citizen consumers.
Lighting the lamps of New York requires capital, massive expenditures of money from private persons who purchase the stocks and bonds of Consolidated Edison and the bonds of the Authority.
Yet, as an afterthought, without any change of facts, the Commission has decided that a site which it has adjudicated to be " safe" may be " unsafe.
This is the very kind of governmental conduct that the impairment of contract, due process, and taking without just compensation clauses were designed to prevent.1 Constitutional guarantees safeguard 1.
The underlying protection of prcperty and of investors' expectations contained in the contract clause applies to the federal l
government through the due process clause of the fifth amend.~ent. Thorpe-
- v. Heucing Authority of Durhan, 393 U.S. 268, 277 n. 31 (1969) quoting Lynch v. United States, 292 U.S. 571, 579 (1934) ("Although the conceitutional prohicition of the impairment of contracts... applies.
--.,._m-., _.,__,,
contract-based rights against government impairment because I
national economic development totally depends upon adequate, reliable, and dependable credit markets in which money can be raised for investment purposes.1 See Home Building & Loan Association v. Blaisdell, 290 U.S.
398, 427 (1934).
The Authority issued its bonds for the purchase and operation of Indian Point Unit 3.
Power Authority of the State of New York, Fiinncial Statements 8, 11, (Dec. 31, 1980) (General Purchase l
bonds, Series C, E,
F, G, and H).
Private citizens and their r
institutions purchased the bonds and the Authority is obligated 4
to protect them.
Power Authority Act, N.Y. Pub. Auth. Law i
SS 1010(6)-(8) (McKinney, 1970).
All of this was done in only to tne states, '[vlalid contracts are property, whether the obligor be a private individual, a municipality, a State or the 'thited States. Rights against the United States arising out of a contract with it are protected by the Fifth knendment.'"); John McShain, Inc. v. District of Coltrnbia, 205 F.2d 882, 884 (D.C.Cir.) ("a measure of protection against contract impair:nent by the federal gover:inent is given by the Fifth Anendment"),
cert. denied, 346 U.S. 900 (1953); see Larionoff v. thited States,- 533 F.2d.
IT67, 1179 (D.C.Cir. 1976) (citations emitted) ("[slince contractual rights against the goverrinent are property interests protected by the Fifth Amendment, Congressional power to abrogate existing governnent contracts is narrowly ciretznscribed"), aff'd, 431 U.S. 864 (1977); Hepburn v. Griswold, 75 U.S. (8 Wall.) 603, 623 (1869), overruled on other grounds, Iagal 'Ihnder i
Cases, 79 U.S. (12 Wall.)' 457, 553 (1870) (wnile express pronibition that no state shall pass any law impairing obligation of contracts is mt applicable to the federal governnent "we cannot doubt that a (feueral] law i
not made in pursuance of an express power, which necessarily and in its direct operation impairs the obligation of contracts, is inconsistent with the spirit of the Constitution").
I 1.
Cf. Bnshwiller, Sorne Investors Shun Nuclear-Powered Utilities, JeopardizTng Funds to Build New Atomic Plants, Wall St.J., Nov. 20, 1980, at 56, col.1 ("the erosion (of the bond market for utilities involved in nuclear pwer] is eating at the foundations of the nuclear industry.
If it spreads, it could do more to foreclose a future for atcm-powered electric-ity in this country than all the efforts of nuclear opsonents canbined."). ;
l 1
, - _ ~ ~.
reliance upon the Commission's affirmative finding of the i
appropriateness of che Indian Point site.
The' protections underlying the Contract Clause " impose some limits upon the power of
[ government) to abridge existing contractual relationships, even in the exercise of its otherwise legitimate police power."
Allied Structural Steel Co. v. Spannaus, 438 U.S.
234, 242 (1978) (emphasis in orig-inal).
Here, as in United States Trust Co. v. New Jersey, 431 U.S. 1, 19 (1977) (emphasis added), an unconstitutional impair-ment of contract would occur if NRC action " totally eliminated an important security provision."
See Power Authority of the State of New York, General Purpose Bonds, Series E, Official-Statement at 12 (Sept. 21, 1976) ("The General Purpose Bonds will be secured by a pledge of.
. the net revenues of.
Indian Point 3.
.").
There the Supreme Court found it unnecessary to resolve the extent of " financial loss the bondholders suffered
. because the State.
. made no effort to compensate the bondholders for any loss sustained by the repeal."
Id. (footnote omitted).
Without changed circumstances (new phy' ical or population characteristics at the site), a shutdown of these plants based upon the previously considered attributes of the site would operate as a " substantial Lmpairment of [the licensees']
contractual relationship [s)."
Allied Structural Steel Co. v.
Spannaus, 438 U.S. at 244 (footnote omitted) (state law 48 -
impaired contractual obligations because it retroactively modified company's payment obligations under pension plan and company's reliance on the absence of any'previously imposed state obligations was vital).
While the Commission cannot relinquish its-duty to protect the public health and safety, there are limits on the exercise of this power.1 In United States Trust Co. v. New Jersey, 431 U.S. at 28-30, the Court concluded that the harm incurred by the bondholders could not.
be justified by the state's claim of public benefit in advanc-ing the goals of "[mlass transportation, energy conservation, and environmental protection" because the state had not _ shown that the repeal was " essential" to further these public interests.
If'the NRC were to determine that the plant location should cause a shutdown at Indian Point,2 there would be a 1.
See Atlantic Cocst Line R.R. v. City of Goldsboro, 232 U.S. 548, 559 (1914); Stone v. Mississippi,101 U.S. 814, 817 (1880) (" [ll egislature cannot bargain away the palice power").
2.
See PIC v. Poyal Millina Co., 288 U.S. 212, 217 (1933) L'TC erred in suppressing use of trade names for canpany's violation of the relevant statute because the trade names were " valuable business assets... the destruction of 411ch probably sculd be highly injurious and should not be ordered if less drastic means will accanplish the same result"); New Orleans Gas Co. v. Iouisiana Light Co.,115 U.S. 650, 673 (1885) (tne plice pwer does not justify ethnination of exclusive franchise by a state constitutional amendment; "[t]he rights and franchises... can be taken by the public, upan just conpensation to the canpany"); C1urchill Tabernacle v. FCC,160 F.2d 244, 247-48 -(D.C.Cir.1947) (citations cmitted)
("(V)aluable rights and investments made in reliance on a license...
should not be destroyed except for the most canpelling reasons.... [I]n ordinary fairness [an agency) owes the duty to exhaust all possible avenues of conpliance with the Congressional purpose before requiring canplete 4
compensable "taking" under the fifth amendment.1
"[P]roperty may be regulated to a certain extent, [but] if regulation goes too far it will be recognized as a taking."
Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922).2 When this seemingly absolute -[fifth amend-ment] protection is found to be qualified by the police power, the natural tendency of human nature is to extend the qualifica-tion more and more until at last private property disappears.
But that cannot be accomplished in this way under the Consti-tution of the United States.
Id.
The consitutional bar against regulatory taking has been reiterated by the Supreme Court in its discussions of the legal principles underlying the just compensation clatse.3 destruction or the71vate interest.").
1.
United States v. Carmack, 329 U.S. 230, 242 (1946) ("when the Federal Goverment thus takes for a federal public use the independently held and controlled property of a state or of a local subdivision, the Federal Gover:nent recognizes its obligation to pay just coupensation");
California v. Chited States,195 F.2d 261, 263 (9th Cir.1968) (footnote omitted) ("tne Fifth leenchrant protects the property of the State frcm appropriation by the Chited States without 'just canpensation'").
2.
In Pennsylvania Coal, the Court held that when the claimant had sold property whicn reserved underground nineral rights and a subsequently enacted Pennsylvania law which prohibited the mining of coal that caused the subsidence of a residence' had the effect of destroying the clairrant's expectation of use of these reserved rights, the law constitutes a canpensable regulatory "taking." Pennsylvania Coal Co. v. Mahon, 260 U.S.
at 414-15.
3.
See, e.g., United States v. Central Eureka Mining 03., 357 U.S.
155,168 TIT 58T (citations cmitted) (" action in tne foon of regulation can so diminish the value of property as to constitute a taking"); Punpelly v.
Green Bay & Mississippi Canal Co., 80 U.S. (13 Wall.) 166, 177-78 (1872)
(enphasis added) (goverment cannot destroy property "value entirely,...
inflict irreparable and permanent injury to any extent..., in effect, subject it to total destruction wit! rut making any conpensation, because, I
A shutdown of the Indian Point units would ef feet a taking because of the economic impact upon the licensees and the
" interference with reasonable investment-backed expectations."
PruneYard Shopping Center v. Robins, 447 U.S. 74, 83 (1980);.
see Penn Central Transportation Co. v. New York City, 438 U.S.
104, 124 (1978).
Kaiser Aetna v. United States, 444 U.S. at 179, involved mere statements rather than the orders of a commission.
Even so, the Supreme Court wrote that while mere statements of government officials "cannot ' estop' the United States (from altering its regulatory policies, they] can lead to the fruition of a number of expectancies embodied in the concept of ' property' - expectancies that
. the Government must
. pay for [the] property."
A sh.tdown in any way based upon the unchanged character-istics of Indian Point would deprive the licensees of the only reasonable use of the property;l it would not merely extinguish in ene narrowent sense of that word, it is not taken for the public use").
1.
In Penn Central, a different result would have been reached if the site was rendered econcmically unviable by the landmark designation. 'Ihe -
Court stated:
We enphasize that our holdirg today is on the present record, which in turn is based on Penn Central's present ability to use the Terminal for its intended purposes and in a gainful fashion. The city conceded at oral agrument that if appellants can denonstrate at sane point in the future that circumstances have so charged that the Tecninal ceases to be "econcmi-cally viable," appellants may obtain relief.
Penn Central Transcortation Co. v. New York City, 438 U:5. at 138 n.36; see, _, _..
f one of several alternative uses.
Id. a t 137.1 See Pennsyl-vania Coal Co. v. Mahon, 260 U.S.
393 (a state law retro-l actively destroying the claimants' expectation of the use of the reserved underground mineral rights constituted a com-pensable regulatory taking).2 Fundamental principles require that any such loss be borne i
j by the government on behalf s' the public.
"The Fifth Amendment's guarantee
[is] designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a Benenson v. Lhited States, 548 F.2d 939, 948 (Ct.C1.1977) (goverment "so restricted and interferec with plaintiffs' use of their property as to constitute a couplete taking of plaintiffs' fee interest").
1.
Much state regulation of land-use deprives owners.of the most beneficial use of their land. tbtwithstanding the individualized hara suffered, the property so regulated can be put to another econcmically viable use.
See Goldblatt v. Henpstead, 369 U.S. 590 (1962) (safety regulation prohibiting excavation below a certain level); Corieb v. Fox, 274 U.S. 603 (1927) (requirement that buildings be set back frcm street line); Village of Euclid v. Smbler Realty Co., 272 U.S. 365 (1926)
(prohibition of industrial use); Weldt v. Swasey, 214 U.S. 91 (1909)
(height restriction on buildings). However, even in the zoning context, i
"[t]he application of a general zoning law to a particular property effects a taking if the ordinance does not substantially advance legitimate state interests... or (if it] denies an owner econcmically viable use of his land." Pains v. City of Tiburon, 447 U.S. 255, 260 (1980) (citation omitted).
See also Nectow v. Cambridge, 277 U.S.183 (1928) (zoning law as applied to individual's property was violative of fourteenth amentaent).
2.
Cther cases have recognized " takings" when the goverment action resulted in the destruction of use aM enjoyment of private property for a greater ptblic benefit. Lhited States v. Dickinson, 331 U.S. 745, 750-51 (1947) (property flooded because of goverment dam project); United States
- v. Causby, 328 U.S. 256, 261-62 (1946) (frequent low altittde flignes of l
Acny aM Navy aircraft over property); R3rtsmouth Farbor Iand & Hotel Co.
- v. United States, 260 U.S. 327, 329-30 (1922) (military installations' repeated firing of guns over claimant's land).
3 whole.
Armstrong v. United States, 364 U.S.
40, 49 (1960).
As the Supreme Court has cautioned, even "a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the consti-tutional way of paying for the change."
Pennsylvania Coal Co.
v.
Mahon, 260 U.S. at 416.
VI, rHE COMMISSION LACKS JURISDICTION TO CONDUCT THE HYBRID, INVESTIGATORY-ADJUDICATORY PROCEEDING WHICH CONSTITUTEL AN UNCONSTITUTIONAL SINGL1NG OUT OF THE INDIAN' POINT LICENSEES Althougn the Commission has the power to investigate, 42 U.S.C.
S 2201(c), and adjudicate, id. S 2239, the Commission lacks jurisdiction to hold a hybrid adjudicatory-investigatory hearing.
In its January Order, the Commission directed the ASLB to conduct a proceeding "using the full procedural format of a trial-type adj udication, includi.ig discovery and cross-examination."
In re' Consolidated Edison Co.,13 N.R.C. at 5 (footnote omitted).
In further explanation of the procedural format, however, the Commission indicated that it was to be
" investigative" in nature.
September Order at 1.
l.
According to that footnote, the proceeding is not "'on the record'" because it is not mandated by the AEA.
Id.
Because it is not mandated by the AEA, the Commission has substantially relaxed the procedural protections of 10 C.F.R.
Fart 2.
On the basis of this tautology, even restraints on ex parte contacts ;
t
will apply only to the ASLB but not to the Commission.1
- Thus, inevitably, the proceeding will begin in procedural quick--
sand.
There will be no burden of persuasion and the ASLB "will not be bound by the provisions of 10 C.F.R. Part 2 with regard to the admission and formulation of { contentions not based on allegations in the petition]" and to " establish whatever order of presentation it deems best' suited to_the proceeding's investigative purposes," without being bound by the provisions of Part 2.
Id. at 2.
Adding a Kafkaesque quality, the ASLB may request even further relaxation of the NRC's rules if it deems such action necessary.
Id.
Thereafter, there will be no decision.
Instead, the ASLB will make recommendations and forward the record to the Commission, "for the final agency action on the merits of the proceeding."
In re Consolidated Edison Co., 13 N.R.C. at 6.
Congress authorized the Commission, in furtherance of its investigatory powers, "to administer oaths and af firmations, and by subgena [ sic] to require any person to appear and testify, or to appear and produce documents."
42 U.S.C.
S 2201(c).
Congress authorized the Commission to conduct adjudicatory hearings for the " granting, suspending, revoking, or amending of any license," M. S 2239, pursuant to the APA.
1.
Compare SEC v. '@.eelirr] Pittsburgh Steel Corp., 648 F.2d 118,130 (3d Cir. 1981) (agency " order must be supported cy an independent agency determination not one dictated or pressured by external forces").
m Id. S 2231.
The Commission promulgated 10 C.F.R. Part 2 which
" governs the conduct of all proceedings" for "(g] ranting, suspending, revoking, amending, or taking other action with respect to any license."
10'C.F.R. S 2.1 (1981) (emphasis added).
Yet, no where in the statute or the regulations is the unique, specially-fashioned hybrid hearing contemplated by the January Order authorized.
The proceeding is not a statutory investigation.
The January Order states that the Commission will take final agency action at the close of this proceeding.
In re Consolidated Ed ison Co., 13 N.R.C. at 6.
The proceeding is not a prelimin-ary fact-finding inquiry.
Third parties are permitted an opportunity to intervene and to engage in cross-examination and discovery.
Furthermore, the. Commission intends to test the weight and sufficiency of the evidence, and that too is a function of an adjudication.1 Simply stated, the proceeding cannot provide a lawful
~
adjudication under the NRC's regulations, the APA, or the l
l AEA.
The AEA does authorize the Commission to conduct ad-ludications.
It does authorize it to conduct investigations.
1.
2e January Crder states that the Indian.bint Task Force Report "will be tested in an adjudicatory settirg where parties may present additional or rebuttal evidence," In re Consolidated Fdison Co.,13 N.R.C.
l at 5, and that " specific allegations (concerning specific safety defects]
l raise issues which are best resolved in the fortheczning adjudicatory proceedings."
Id. at 3 (emphesis added).
- 5; -
i I
E
r
- 1 9
It does not, however, authorize a hybrid proceeding which partakes of some of the characteristics of each, but omits important statutory procedural requirements of each.1 Because the substance of agency action rather than the label which an agency places on its exercise of power is con-trolling, Lewis-Mota v. Secretary of Labor, 469 F.2d 478, 481-8 2 (2d Cir.19 72); see CBS, Inc. v. United States, 316 U.S.
407, 422 (1942), this proceeding is obviously an adjudication in fact.
Under the January Order, the proposed hearing, functioning as an agency process for the formulation of a final agency disposition, is an adjudication.2 As such, the proceed-I 1.
me. legislative history of the AEA contains no supprt for the proposition that Congress intended to grant the Ccmmission special investigative powers cf an aljudicatory nature. See AEC, Iagislative History of tb: Atcznic Energy Act of 1954 (Public Law 703, 83rd Cong.)
(19 55). Cee also Atchison, T.&S.F. Ry. v. ICC, 607 F.2d 1199,1203 (7th Cir.1979 ) ("an administrative agency cannot exceed the specific statutory autharity granted it by Congress"): Ebraiswamy v. Secretary of _ Labor, 555 F.2d 832, 843 (D.C.Cir.1976); Nawr v. NRC, 513 E.2d at 1051 ("an administrative agency is bound... by the precepts of its governing statute").
"In the absence of a conflict between reasonably plain neaning and i
legislative history, the words of a statute nust prevail."
Aaron v. SEC, 446 U.S. 680, 700 (1980) (footnote onitted); see CPSC v. GrE Sylvania, l
_Inc., 447 U.S.102,108 (1980); Ctramissioner v. Brown, 380 U.S. 563, 571 (19 65).
2.
'Ihe APA defines " adjudication"_ as an " agency process for the formulation of an order."
5 U.S.C. S 551(7).
" Order" is defined as "the whole or a part of a final dis:csition, whether affirmative, negative.,
injunctive, or declaratory in form, of an agency in a matter other than rule making but including liceraing." 5 U.S.C. S 551(6) (emphasis added).
'Ihe Supreme Court has noted that "when Congress defined ' order' in terms of -
a ' final dispsition,' it required that [the] ' final disposition'...
have scrae determinate consequences for the party to the proceeding."
IT&T
- v. Incal 134, IBEW, 419 U.S. 423, 443 (19 75) (emphasis added).
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ing lacks the requisite notice and other procedural safeguards guaranteed by statute, regulation, and the due process clause of the fifth amendment.1 The January Order expressly states that the Commission intends to take final agency action at the conclusion of this proceed ing.
Even assuming that this proceeding is intended as the forerunner of a later adjudication conducted in accordance with all of the lawful requirements, the scope of this proceeding will control and infect the outcome of any second hearing.
In fact, this adjudicatory proceeding with final action by the Commission may, for all practical purposes, circumscribe to an impermissible extent a second proceeding based upon the same issues with the same partier.
Therefore, this is the determinative proceeding.
In addition, this hybrid hearing is an attempt to make b inding, substantive rules during the course of a proceeding in violation of both the applicable rulemaking and adjudicatory 1.
'Ihe AEA prcvides trat "[i]n any I:roceeding under this chapter, for the granting, suspending, revoking, or amending of any license... the Ccr. mission shall grant a hearirg upon the regmst of arrf person dose interest reay be affected by the proceeding." 42 U.S.C. S 2239(a).
T.he Comnission's regulations prcvide that a proceeding to modify, susperd, or revoke a license may be instituted by serving on the licensee an order to show cause Wich will, in part, "[i]nforn the licensee of his right.
to demand a hearing." 10 C.F.R. S 2.202(a) (3).
If the licensee demandr., a hearirg, the "Ccrmission will issue an order designatirg the time and place i
of [ thel hearing."
_Id. S 2.202(c). ~_
~
procedures.1 Thus,'it constitutes a further imp +.rmissible infringement of the licensees' constitutional rights.
It is axiomatic that-an agency is bound to follow its governing statute and rules.2 When the NRC has " laid down
- [its] own procedures and regulations, [they] cannot be ignored by the [NRC] even where discretionary decisions are involved."
Smith v. Resor, 406 F.2d 141, 145 (2d Cir. 1969).
The licensees are also deprived of notice because the Nar is permitting the formulation-of new contentiens and new l
1.
See NIRB v. Wyman-Gordon Co., 394 U.S. at 764-65 (citations omitted) (e pnasts added):
2e rule-makig provisions of [the Mainistrative Procedure Act], which the Board would avoid, were designed to assure fairness and mature consideration
~
of rules of general application.... tey may not be avoided by the process of making rules in the 4
course of adjudicatory proceedings. There is no-warrant in law for the Board to replace the statutory scheme with a rule-making procedure of its own invention. Apart fran the fact that the device j
Ta'nioned by' tne Board does'not couply with statutory cannaM, it obviously falls short of the substance of
... the Administrative Procedure Act.... (U]nder i
l the Administrative Procedure Act, the terms or substance of the rule would have to be stated in the notice cf hearing, ard all interested parties would j
have an opportunity to participate in the rule
[
makig.
I 2.
Vitarelli v. Seaton, 359 U.S. at 540; Service v. Dulles, 354 U.S.
at 373; United States ex rel. Acesrdi v. Shaughnessy, L47 U.S. at 268; I
Naticnal Conservative Political Action Comnittee v. FEC, 626 F.2d 953, 959 (D.C.Cir.1980); Way of Life Television Network, Inc. v. FCC, 593 F.2d i
L 1356,1359 (D.C.Cir.1979); VanderMolen v. Stetson, 571 F.2d 617, 624 (D.C.Cir. 1977) (citations omitted) (" Actions by an agency..... in vio.-
i lation of its own regulations are illegal and void."); see milin v. United States, 374 U.S. 109, 114-16 (1963).
58 -
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r subissues during the proceeding.
The APA provides that
"!plersons entitled to notice of an agency hearing shall be timely informed of the matters of fact and law asserted."
5 U.S.C. S 554(b)(3).
The due process clause also requires that rules governing conduct be stated in advance so that notice is given of what conduct is required.
Holmes v. New York City Housing Authority, 398 F.2d 262, 265 (2d Cir. 1968); Hornsby v.
- Allen, 326 F.2d 605, 608 (5th Cir. 1964); cf. United States v. Atkins, 323 F.2d 733, 742 (5th Cir. 1963).
As the Supreme Court has repeatedly written:
For more than a century the central meaning of procedural due process has been clear:
" Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified."
It is equally fundamental that the right to notice and an opportunity to be heard "must be granted at a meaningful time and in a meaningful manner."
Fuentes v.
Shevin, 407 U.S.
67, 80 (1972) (citations omitted)
(emphasis added).
Where, as here, statutes or regulations impinge upon constitutionally protected rights, they must set forth in advance what is and what is not lawful.
See Cantwell
- v. Connecticut, 310 U.S.
296, 306-08 (1940); Schneider v. New Jersey, 308 U.S.
147, 163-64 (1939); Hague v. CIO, 307 U.S.
496, 516 (1939).
The proper time for giving such notice is.
~
r
~
r-prior to the hearing.
NLRB v. Ma j e s tic We aving Co._, 3 5 5 F. 2d at 8 61.
As the Supreme Court stated nearly 100 years ago, law "must be not a special rule for a particular person or a particular case, but
. the general law' so 'that every citizen shall hold his life, liberty, property, and immunities under the protection of the general rules which govern society,' and thus excluding, as not due process of law s pe cia ', partial, and arbitrary exertions of power."
Hur ado v.
California, 110 U.S. 516, 535-36 (1884) (citation o'.ni tted ).
Adherence to the requirements of the APA, the AEA, and the NRC's regulations " avoids the problem of singling out
[the Indian Point facilities) for initial imposition of a new and inevitably costly legal obligation."
National Petroleum Refiners Association v.
FTC, 482 F.2d at 683 (citations omitted).
The Commission cannot ignore its governing statutes and regulations and act in a manner inconsistent with its precedents merely "because in this case the Commission thinks that that the (public health and safety] require [] a different interpretation."
Teleprompter Cable Communications Corp. v.
FCC, 565 F.2d at 742.
(
o
,e' Conclusion For the foregoing reasons, the licensees' motion for a stay of this hearing pending completion of presently scheduled and proposed generic proceedings, or fo: dismissal of this proceeding or, in the alternative, for certification of the issues raised in this motion to the Commission for its determination, pursuant to 10 C.F.R. S 2.718(i), should be g ranted.
Respectfully submitted, e
n, Brent L.
Brandenburg CEarles Morgan, Jr.
Paul Colarulli 1899 L Street, N.W.
CONSOLIDATED EDIS N COMPANY Washington, D.C.
20036 OF NEW YORK, I' C.
(202) 466-7000 Licensee of I ian Point Unit 2 Thomas R.
Frey 4 Irving Place General Counsel New York, New York 10003 Charles M. Pratt (212) 460-4600 Assistant General Counsel 10 Columbus Circle New York, New York 10019 (212) 397-6200 MORGAN ASSOCIATES, CHARTERED 1899 L Street, N.W.
Washington, D.C.
20036 l
SHEA & GOULD 330 Madison Avenue New York, New York 10017 POWER AUTHORITY OF THE STATE OF NEW YORK Licensee of Indian Point Unit 3 10 Columbus Circle Dated: