ML20033B424
| ML20033B424 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 11/24/1981 |
| From: | Brandenburg B CONSOLIDATED EDISON CO. OF NEW YORK, INC. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-SP, NUDOCS 8112010394 | |
| Download: ML20033B424 (26) | |
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UNITED STATES OF AMERICA COLKETED NUCLEAR REGULATORY COMMISSION MNRC ATOMIC SAFETY AND LICENSING BOARD
'81 NOV 27 P358 Before Administrative Judges:
Louis J. Carter, Chairman
.. SECBETARY U
Frederick J.
Shon
..eE.L & SERVICE Dr. Oscar H.
Paris 5HANCH In the Matter of
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CONSOLIDATED EDISON COMPANY OF
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NEW YORK, INC. (Indian Point, Unit )
Docket Nos. 50-247 SP No. 2)
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I /s POWER AUTHORITY OF THE STATE OF NEW
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YORK, (Indian Point, Unit No. 3)
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- y%1981rm i
I CON EDISON'S ANSWER TO
.PE_T_ITI_O_N_S FOR_ LEAVE _TO_ I_NTERVENE 4
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w Pursuant to 10 CFR S 2.714(c) and the Atomic Safety and Licensing Board's Memorandum and Order dated November 13, 1981, Consolidated Edison Company of New York, Inc.
(" Con Edison"), licensee of Indian Point Unit No.
2, submits its answer to the petitions for leave to intervene herein.*
Con
^~* Con Edison has been served with petitions for leave to inter-Vene from Ruth Messinger, et al., The Metropolitan Transporta-tion Authority, Rockland Citizens for Safe Energy, County of Rockland, New York City Audubon Society, The Greater New York Council on Energy, Parents Concerned About Indian Point, Union of Concerned Scientists and tiew York Public Interest Research Group, Alfred B. Del Bello, The New York State Energy Office, Friends of the Earth, Inc., Power Authority of the State of New York, The New York State Assembly and the Special Committee on Nuc1 car Power Safety, the Westchester People's Action Coalition, Inc., West Branch Conservation Association, Robert Abrams, The Port Authority of New York and New Jersey, and the Village of Buchanan.
Con Edison has not to date been served with any other petitions to intervene and, accordingly, reserves its rights to answer any remaining petitions pursuant to 10 CPR S 2.714(c).
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Edison opposes various of the petitions for leave to inter-vene for:the reasons set forth below.
I.
THE PETITIONS FOR LEAVE TO INTERVENE AS "IN-TERESTED STATES" PURSUANT TO 10_CFR S 2.715(c)
_ FILED BY RUTH MESSINGER, et al., ALFRED B.-
DEL BELLO, ROBERT ABRAMS, AND THE NEW YORK STATE ASSEMBLY AND SPECIAL COMMITTEE ON NUCLEAR POWER SAFETY SHOULD BE DENIED.
Under the NRC's Rules of Practice, 10 CFR S 2.715(cf,
" interested states" receive special rights and privileges which are not available to other participants in Licens-ing Board proceedings.
Before a state, county. cur municipal-ity may be afforded these special rights and privileges, it must first establish its " interested state" status.-
The petitions for leave.to intervene filed by Ruth Messinger and nine other individuals, Alfred B.
Del Bello, Robert Abrams, and the New York State Assembly and Special Committee on Nuclear Power Safety do not establish that they have been authorized to represent any State, county or municipality, or that any such governmental entities have granted them permission to appear on their behalf.
Accordingly, these petitioners should, upon a proper showing of an interest which may be affected by this proceeding, be granted only
" person" status under 10 CFR S 2.714, on an equal footing with other participants in the proceeding.
The petition for leave to intervene of Ruth Messinger and nine others reveals that each of them are members of the c
Council'of the City of-New York.
None of these individuals has shown any cognizable interest in this proceeding beyond the representation that they are Council members.
- However, nowhere in the petition does it appear that these persons-appear on behalf.of the interested municipality, the City of New York, or that the City of New York has authorized these individuals to appear on its behalf or to represent its
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interests in the proceeding.
It is well established that prospective intervenors may not obtain participant status based upon the interests of others uhom they do not. represent, see e.g.,
Long__I_sland Lighti_ng Co. (Shoreh'am Nuclear Power Station Unit 1),
These individuals are not the City of New York and have made no showing that they have been empowered to represent the City's interests.
The same issue arose in Gen _e_r_a_1_iEle_ctri_c _C_ompany (General Electric Test Reactor -- Vallecitos Nuclear Center),
LPB-79-28, 10 NRC 578 (1979), where an it. iividual member of Congress sought intervention in a licensing proceeding.
Noting that the United States itself did not seek to be ad-mitted in the proceeding, the Licensing Board ruled that:
" [ A] petitioner has a right to intervene only when it appears from the petition that he will be,.or might be, injured in fact by one or more of the possible outcomes of the proceeding.
The only exception to the rule that intervention is granted as a matter of right only to a person who can show an injury in fact is found in 10 CFR S 2.715(c), which requires that reprasentatives of the state or municipality be afforded a reasonable opportunity to participate in a proceeding.
That rule does not extend to congressmen."
(10 NRC at 581-82; citation omitted; emphasis supplied)
Because the instant petitioners are not themselves interested states or municipalities, the petition of Ruth Messinger, et al.,
to participate as an interested party
.should be. denied.
A similar deficiency exists with the-pstition to
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intervene "as an interested state" filed by Alfred B. Del Bello.
Del Bello represents that he is the Westchester County Exec-utive.
However, he purports to intervene only on his own be-half, and not on behalf of the County of Westchester.
The County of Westchester is governed by a County Board of Legislators.
The Charter of.the County provides that the Board of Legislators shall, unless otherwise provided, have "all.the powers and duties of the county."
(Section 107.01, Westchester County Charter and Administrative Code).
The Del Bello petition for leave to intervene does not indicate that the Board of Legiclators of the County of Westchester has authorized Del Bello to represent its interests in this proceeding, nor does the petition state a bar, for Del Bello's own " interest" in this proceeding under requisite' Commission standards.
Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610 (1976); Nuclear g qineerinq_Co_._
(Sheffield Low-Level Radio-active Waste Disposal Site), ALAB-473, 7 NRC 737 (1978).
The Del Bello petition to intervene should accordingly be denied. 2
Petitions for leave to intervene have also been filed by Robert Abrams and the New York State Assembly and Special Committee on Nuclear Power.
Abrams is the Attor-ney General of the State of New York, and the New York State Assembly and Special Committee are instrumentalities of the State of New York.
However, neither petition purports to intervene on behalf of the interested state, the State of New York, and neither petition represents that the State of New York has authorized the petitioner to represent its interests.
Indeed, the petition for leave to intervene filed by the New York State Energy Office represents that it is authorized to appear on behalf of New York State.
Unlike the Abrams and Assembly /Special Committee petitions, the Energy Office petition expressly avers that it represents the interests of the State of New York in this proceeding:
" [T]he New York State Energy Of fice hereby petitions on behalf of the State of New York and its interested a_ gen _cies to participate in the noticed proceeding as an interested state."
(Petition for Leave to Participate as an Interested State by the New York State Energy Office, dated November 6, 1981 at p.
- ' emphasis supplied).
The Energy Office petition cites statutory author-ity conveying to it the duties and responsibilites of repre-senting the State of New York in proceedings such as this:
"Under Section 7-101 of the Energy Law and Section 104 of the Commerce Law of the State of New York, the State Energy Office is given the responsibility for coordinat-ing regulatory programs of State agencies and instrumen-talities which affect atomic energy activities in New
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i York,-for developing a coordinated position among State agencies with respect to Federal. regulatory matters and-for coordinating the participation of the agencies and instrumentalities for the State in the regulatory process of.the Federal Government where such Federal process af-fects atomic energy activities infthe State."
(Id.. at '
pp. 2-3.)
The " interested state" for purposes of 10 CFR S 2.715(c) is The State of New York, and it. appears that its interests are represented by the New York State Energy Office.
Since the Abrams and Assembly /Special Committee petitioners do not even claim that they are the State of New York, and since those petitions do not state any basis for individual or organizational interest, respectively, under NRC standards, they should be denied.
The dismissal of the Messinger, Del Bello, Abrams and Assembly /3pecial Committee -petitions are mandated not only.by Commission precedent, as in Gene _ral_ _El_e_c_tric Company, supra, but by judicial precedent as well.
The Commission B
recognizes that questions of standing to intervene in Com-mission proceedings are to be resolved by reference to ju-dicial decisions on standing.
In Portland General Electric Co.,
s up_ra, 4 NRC 610, the Commission stated that:
"We have found the standards announced by the federal courts to be useful guides in deter-nining the kind of interests a petitioner must establish to sustain a claim for partici-pation in a proceeding as a matter of right."
(4 NRC'at 613)
Consistent with the General Electric case, the courts have often recognized that the status of an indi- - _ - -., ~,,, -. -, -., _,.. -,
vidual as a public official does not in itself give such a person standing to sde.
In Reuss v. Balles, 584 F.2d 461 (D.C. Cir.), cert. denied, 439 U.S.
997 (1978), the Court of Appeals for the District of Columbia denied standing to a public official who could not establish personal injury in fact, holding that "a legislator receives no special considera-tion in the standing inquiry."
(584 F.2d at 4661 In H_arrington v.__ Bush, 553 F.2d 190 (D.C. Cir 1977),
the same fact situation was presented as here, where a public official argued that he had standing because of his status as a public official, but did not purport to act 5ith the authori-zation of t'
governmental body which he served.
The Court denied standing, observing that:
"If there is one concept to be gained from the Supreme Court decisions on standing, it is that a litigant, to have standing, must have a stake in the controversy at issue, i.e.,
he himself must perceptibly win or lose depending on the outcome."
(553 F.2d at 209, footnote omitted; emphasis in original)
Specifically addressing public official status as it pertained to standing, the _H_arrington court held that:
" [W] hen a legislator has not been authorized to sue on behalf of the institution to which he belongs, the crucial inquiry relates to his p_ersonal injury and stake in the contro-versy, regardless of its source." (553 F.2d at 200, n.
42; emphasis in original)
For the foregoing reasons, the Messinger, Del Bello, Abrams, and Assembly /Special Committee petitions for leave to intervene should be denied.
II.
THE PETITION FOR LEAVE TO INTERVENE FILED BY THE COUNTY ATTORNEY FOR ROCKLAND COUNTY SHOULD NOT BE GRANTED'PENDING AUTHORIZATION FOR ITS FILING FROM THE_ COUNTY OF ROCKLAND_._
Unlike the-petitions for leave to intervene referred to in Point I, above, the petition. filed by Marc L..Parris,
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County Attorney, ostensibly on behalf of-the-County of Rockland, does not seek participation as an interested state.
Only 10 CFR S 2.714 " person" status has been sought, see petition at-paragraph 2.
Nonetheless, the petition states, at paragraph 3, p.
2, that its filing has been authorized only by the Chairman of the Rockland County Legislature,'t'he County Commissioarr of Health, and an individual identified as a fire coordinator.
There is no represantation that the filing of the petition on behalf of the County of Rockland has been authorized by the ruling governmental body, the Rockland County Legislature.
It is important to Con Edison and the other participants in this proceeding that participation by the County of Rockland be duly authorized, in order to insure that the County will be bound by the outcome.
The Licensing Board should not grant the petition until it has been averred that participation in this proceeding has been duly authorized by a resolution of the Rockland County Legislature.
III.
TiiE PETITIONS FOR LEAVE TO INTERVENE FILED-BY ROCKLAND-CITIZENS FOR SAFE ENERGY,
""N YORK
-CITY AUDUBON-SOCIETY, TIIE GREATER NEW YORK COUNCIL ON ENERGY, PARENTS CONCERNED ABOUT INDIAN-POINT, THE UNION.OF CONC"RNED SCIENTISTS AND TiiE' NEW YORK PUBLIC INTEREST RESEARCH GROUP, INC.,
FRIENDS OF THE EARTH, INC., WESTCliESTER PEOPLE'S ACTION COALITION,,INC., AND WEST BRANCII CONSERVA-TION ASSOCIATION S"OULD BE DENIED BECAUSE THE PETI-TIONING ORGANIZATIC..~ HAVE-NOT DEMONSTRATED AN IN-TEREST WHI_CII MAY BE A_F_F_ECTED BY THIS PROCEEDING _._ __
The NRC's regulations on intervention and standing require that a prospective intervenor demonstrate an interest which may be affected by the proceeding before intervention may be granted.
10 CFR S 2.714(a)(2) provides, in. pertinent part, that:
"The petition [for leave to intervene] shall set forth with particularity the interest-of-the petitioner in the proceeding, how that interest may be affected by the results of the proceeding, including the reasons why peti--
tioner should be permitted to intervene, with particular reference to the factors in paragraph (d) of this sec-tion It is well established that, in applying this-regu-lation, the NRC adopts judicial concepts of standing, such as those set forth in Sierra Club _ v._ Mo_r_t_on, 405 U.S.
727 (1972).
In Portl_and Gene _ral_ Electri_c_ _Co_._, s,ulra, the Commis-sion characterized the standing test as follows:
"To have ' standing' in court, one must satisfy two tests.
First, one must allege some injury that has occurred or will probably result from the action in-volved*
Under this ' injury in' fact test' a mere aca-demic interest in a matter, without any real impact on the person asserting it, will not confer standing."
(4 NRC at 613) 4 A review of the petitions for leave to intervene
.herein filed by Rockland Citizens for Safe Energy, New York
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City Audubon Society, Greater New York Council on Energy, Parents Concerned About Indian Point, Union of Concerned Scientists ("UCS") and New York Public Interest Research t,
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("NYPIRG"), Friends of the Earth, Inc.
(" FOE"),
GJot re Fastunester People's Action Coalition, Inc., and West Branch conservation Association (hereinafter collectively referred to as " organizational petitioners"), reveals that none of these organizations claims to have interests of its own which would warrant a grant of intervention under articulated NRC standards.
In Houston Ligh_t_ing and Power __Co.
(Allens P
Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377 (1979), a prospective intervenor organization sought t
intervention due to its "special interest" in the construction and operation of the subject facility.
The Appeal Board stated that:
" [0]rganizations of [the prospective intervenor's]-
stripe are not clothed with independent standing ~to intervene in NRC licensing proceedings.
Rather, any standing which the Guild may possess is wholly deriva-tive in character.
It must appear that at least one.
of the persons it purports to represent does in fact r
have an interest which might be affected by the li-censing action being sought; here, the issuance of a construction permit for the Allens Creek facility."
(9 NRC at 390).
t Endorsing the Supreme Court's decision in _S_ierra Club, the Appeal Board quoted from that decision that:
- a mare ' interest in a problem,' no matter how longstanding the interest and no matter how qualified the organization is in evaluating the 1
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problem,'is not sufficient by itself to render the organization ' adversely affected' or 'aggriev-ed'.-.
(9 NRC at 391).
The organizational' petitioners in this proceeding seek intervention based upon the supposed interests cf their
" members" living within 50 miles of Indian Point.
- However, these organizations have failed to establish'a proper basis for obtaining intervention-in such a manner.
The extent to which associational organizations may derivatively rely.upon the interests of its members to satisfy judicial standing requirements was considered in H_ealth Research Group v.
Kennedy _, 82 F.R.D. 21 (D. C.
1979).
In Health Research Group, Judge Sirica ruled that organizations may obtain standing to achieve intervention based only upon the interests of persons who exercise control over the organization by direct electoral participation in the governing of its affairs.
The; Court stated that:
"[P]laintiffs allege injury only to their 'contribu-tors' and ' supporters.'
Becaus" plaintiffs do not claim injury to any interest of. heir own, the ques-tion arises whether they may have standing sol _e_1g as the representatives of these contributors and supporters."
(82 F.R.D.
at 24; footnote cmitted; emphasis in original)
Observing that "the associational standing doctrine represents a very limited exception to the fundamental Article III requirement that the plaintiff before the court be himself among the injured," _s_upra at 25, the Court ruled that there must be a " substantial nexus" between the injured person and _ - - _
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the organizational party derivatively depending upon his status to-achieve _ standing:
"So long as the courts insist on some sort of sub-stantial nexus between the injured party and the organizational plaintiff -- a nexus normally to be provided by actual membership or its functional equivalent measured in terms of control -- it can reasonably be presumed that,-in effect,.it is
'the injured party who is himself seeking review.
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Absent this element of control, there is simply no assurance that the party seeking judicial re-view represents the injured p_ arty, and not merely a well-infor.ned point of view. "
(82 F.R.D.
at 26-27; emphasis in criginal)
The Court concluded in Health Research Group that members actively participating in the governing of the subject organization could supply a basis for standing, but that contributors could not:
"[T]here is a material dif ference of both degree and substance between the control exercised by masses of contribu_t_ ors tending to give more or less money to an organization depending on.its responsiveness-to their interests, or through the expression of opinion in the letters of supporters, on the one hand, and the control exer-cised by members of an organization as they regu-larly elect their governing body, on the other."
(82 F.R.D.
at 27; emphasis in original)
The UCS/NYPIRG petition, and also the FOE petition, fail to supply the " substantial nexus" necessary for standing between their " sponsors" (the petitionera' own term; see UCS/
NYPIRG petition at p. 1; FOE petition at p.2) said to live in close proximity to Indian Point, on the one hand, and the respective organizations, on the other.
The petitions of the other organizational petitioners are similarly deficient.
These petitions make no effort whattoever to satisfy Health _Research_
Group requirements, failing to make any reference to the involvement of the variously named persons in the. governing
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of the organization. :Indeed, the reference.in the UCS/NYPIRG-and FOE petitions to such' individuals'as " sponsors" implies the contributor status which was specifically found to'be inadequate in Hea_1_th Research Group.
Even if the organizational petitioners'were able
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to establish sufficient degrees of involsement in the run-ning of their organizations by the individuals whose status they seek to represent, none of the petitions contains any statement by these persons as to exactly what injury in fact would flow to them as a result of the Indian Point invesigation.
Such-a showing is required under Houston
_L i_g h_t i ng__ _a n_d_ Po_we r _Co._, s_upra :
"The alleged fact that there are Guild members whc live in the' general vicinity of the Allens Creek site does not lter matters.
To be sure, persons who live in close proximity to a reactor site are presumed to have a cognizable interest in licensing proceedings involving the reactor.
But there is no like presumptior, that every individual so situated will deem himself porontially aggrieved by the outcome of the proceeding-(an essential ingre-dient of standing).
Some may and some may not.
Be-cause of this consideration, the petitioner organiza-tion in North Anna did not and could not content it-self with the sfEple assertion that it had members living in the shadow of the facility there in ques-tion.
To establish its representational standing, it additionally supplied the statement of one of those members, which explicitly identified the na-ture of tna invasion of her personal interest which might flow from the proposed licensing action."
l (citation and footnote omitted) (9 NRC at 393) a
c.
Because the organizational petitions do not assert a cognizable basis for intervention either on behalf of the organizations themselves or derivatively on behalf of named individuals, these petitions for leave to intervene should be denied.
IV THE LICENSING BOARD SHOULD REQUIRE FURTHER SUBJECT MATTER SPECIFICITY BEFORE GRANTING ANY P_ETITION_S_ FOR L_ EAVE TO INT _E_R_VENE.
Unlike any prior NRC proceeding, the Commission's January 8 and September 18 orderc delegate to the Licensing Board tha responsibility for conducting a very broad-ranging inqui'y, and to report to the Commission by September 18, 19 8 '..
Cognizant of the need to proceed on such an ambitious timetable, the Commission in its orders granted powers to the Licensing Board to depart from normal NRC Rules of Practice, all in the interests of a prompt disposition of the proceeding.
The Commission's September 16 order herein, at pp.
1-2, states that:
"Because the Commission itself is designating by this Order the issues it wishes to be addressed in the adjudication it is important that contentions raised by parties and sub-issues raised by the Board in this proceeding contri-bute materially to answering those designated issues.
[T]he Commission emphasizes that its purpose is to ensure that the Board is em-powered only to accept and formulate, after con-sultation with the parties, those contentions which seem likely to be important to resolving the Commission's questions on pages 9-10, and thereby to assure that the proceeding remains clearly focused on the issues set forth in this Order." L
O Thus apart from the normal Licensing Board pro-cedures to narrow issues as granted by the NRC's Rules of Practice, the Board has been given further powers "to as-sure that the proceeding remains focused."
Under 10 CFR S 2.714(a)(2), a prospective intervcnor is normally required to set forth "the _ specific aspec_t__or aspects of the sub-ject matter of the proceeding as to which petitioner wishes to intervene." (emphasis supplied).
The same may be required of " interested state" intervenors.
10 CFR S 2.715(c) provides that:
"The presiding officer may require such
[" inter-ested state"] representative to indicate with reasonable specificity, in advance of the hear-ing, the subject matters on which he desires to participate."
Even under normal Licensing Board procedures, the various petitions for leave to intervene in this pro-ceedinc are insufficiently " aspect" specific to permit reasonable progress in the consideration of issues.
The petitions of Ruth Messinger and nine others, the Metro-politan Transportation Authority, Alfred B.
Del Bello, New York State Energy Offict, the New York State Assembly and Special Committee on Nuclear Power Safety, Robert Abrams, and the Port Authority of New York and New Jersey centain no statements whatsoever as to the issua.; which such parties wish to raise, nor the subiect matter as to which they wish to participate.
The issues statements of other prospective intervenors
- g are hopelessly bread or vague, going far beyond the focus clearly delineated in the Commission's January _8 and September 18 orders.
The pstition of Rockland County, at paragraph 5(E), indicates'that it wishes to raise issues
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_as to the actual cost of full' implementation of an emergency.
evacuation plan.
The petition of the New York City Audubon Society, at p.
2, states that it wishes to raise ~ issues re--
garding the effects on commerce and public health of normal operations at Indian Point and the consequences of accident conditions at the plant.
The petition of the' Greater ~New York' Council on Energy recites that it desires to raise issues as to the economic consequences for the City of New York of. accident conditions at Indian Foint, and the' petition j
of Parents Concerned About Indian Point says that it wishes to raise issues about the psychological, emotional and physical health and safety of children as it relates to the plants.
j Other petitions are equally broad, far exceeding i
the scope envisioned by the Commission.
Both the UCS/NYPIRG and Westchester People's Action Coalition, Inc. petitions 4
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state that they wish to raise issues regarding the conse-quences of an accident at Indian Point..The petition of i
Friends of the Earth, Inc., indicates that that organization would like to raise issues concerning the availability and economic and social benefits of alternative energy strate-
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gies to replace-Indian Point, and the supposed incompatibil-t o
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ity of continued operatior, of Indian Point with national security.
The West Branch Conservation Association petition states that it desires to raise such issues as the realistic service life of the Indian Point units, and their continued cost of operation and the rate treatment thereof.
These issues either find no basis whatsoever in the Commission's January 8 and September 18 orders herein, or raise questions which are generic to all nuclear power plants ani have no appreciable Indian Point-specific characteristics.
Even those questions eddressing accident risk are formulated solely in terms of consequences, in flat disregard of the requirement of the September 18 order, at p.
3, that "(alp-proximately equal attention should be given to the probability of occurrence of releases and to the probability of occurrence of the environmental consequences Before granting any intervention petitions, the Board should require more precise and focused statem,ents of proposed issues from both prospective interested state and person intervenors.
The Board is fully empowered to do this pursuant to 10 CPR SS 2.714(a)(2) and 2.715(c), as well as under the Commission's September 18 order.
There have already been numerous statements of issues submitted which far exceed the bounds for this hearing permitted under the Commission's orders, or worse yet, no statement of issues at all.
Con Edison respectfully submits that conditioning all interven-tions, pursuant to 10 CFR S 2.714(e and f), upon further, d
more specific statements of issues, particularly for bona fide interested state participants, is not only highly de-sirable, but absolutely essential for con.,11ance with the Commission's directions that the proceeding be completed by September 18, 1982.
V.
NONE OF THE PETITIONS FOR LEAVE TO It1TERVEllE ESTABLISH A BASIS FOR GRANTING DISCRETIONARY INTERVENTION, SINCE PETITIONERS DO NOT DEMONSTRATE ANY CAPABILITY FOR f!AKING A
_VALU ABL_E_ _C_ONTRI BUTIO_N_ _TO_ _TH E _R_E_C_ORD_._
In determining in a particular case whether or not the standards for permissive intervention are met by peti-tioners who do not meet the tests for intervention as a matter of right, Licensing Boards are to exercise their dis-cretion based on the facts and circumstances of eac't case, P_o r_ t l_a_n_d_ _G e n e_r_a_1 E l e_c t_r i c Co._
_s u_p r_a, 4 NRC at 616.
The burden of demonstrating that the requirements for discre-tionary intervention have bees met is on the petitioner, Nucl_e_ar Enqi_n_eering Co.,
_s_u_ra, 7 NRC at 745.
p In making determinations regarding discretionary intervention, the NRC has indicated that Licensing Boards should be guided by the following factors:
"(a)
Weighing in favor of allowing inter-
'rention --
(1)
The extent to Ghich the peti-tioner's participation may reasonably be expected to assist in developing a sound record.
(2)
The nature and extent of the petitioner's property, f i na nc i.a l,
or other interest in the proceeding.
(3)
The possible effect of any order which may be entered in the proceeding on the petitioner's interest.
(b)
Weighing against allowing intervention --
(4)
The availability of other means whereby petitioner's interest will be-protected.
(5)
The extent to which the petitioner's interest will be represented by existing parties.
(6)
The extent to which petitioner's participation will inappropriately broaden or delay the proceeding."
Portland G_e_n_ era _1 c.l_ectri_c Co., s up_ra_, 4 NRC at fl 6.
Various Appeal Boards have held on numerous oc-casions that the pivotal factor in determining whether to grant discretionary intervention is the ability of a peti-tioner to make a valuable contribution to the development of a sound record on a safety or environmental issue which is raised by the petitioner and which appears to be of enough importance to call for Board consideration.
_T_e n ne s_s_c e V_alle_y_Aut_h_ori_ty (Watts Bar Nuclear Plant, Units 1 and 2),
ALAB-413, 5 NRC 1418, 1422 (1977); Public Service Comgany, of_Ok_lahqma,_ _e t a l_._, (Black Fox Station Units 1 and 2),
ALAB-397, 5 NRC 1143, 1151 at n.
14 (1977); V,irginia Electric y _Powe_r_ _Co. (North Anna Power Station, Units 1 and 2), ALAB-363, 4 MRC 631 (1976); Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-470, 7 NRC 473, 475, at n. 2 (1978).
- t, With regard to discretionary intervention, the NRC has stated that:
" Permission to intervene should' prove more readily available where petitioners show signi_f_i_c_ ant _abi_1_ity to coatribute on substantial issues of law or fact which will not otherwise be properly raised or pre-sented, s_et forth thes_e_ mat _ters_ _wi_th_ _su_it_a_b_1_e _spg cifi_ci_tg to allow evaluation and demonstrate their importance and immediacy, justifying the time ne-cessary to consider them."
( Por_t_i_and _GenerK1 El_ectric J:o., 4 NRC at 617; emphasis supplied).
Judged by these standards, none of the instant petitioners for leave to intervene have stated an appropri-ate basis for the Board to grant its discretion to permit intervention.*
As set forth in Point IV above, many pro-spective intervenors have either stated no issues as to which they wish to participate, or have stated issues which can 1
only reflect a complete disregard of the Commission's January 8 and September 18 orders directing a hearing limited to specifically enumerated questions.
More importantly, none of the petitioners have come forward with any claims of special expertise in the areas i
i of nuclear power plant risk, comparative risk, civil engin-cering or einergency management science, or electric energy socioeconomics -- the very subjects upon which the Board is charged with developing a record.
The organizational peti-t l
Of course, such a basis need not be shown by persons i
demonstrating injury in fact, and thus stating a basis I
for intervention as of right..
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e tioners* in particular have
'sented no evidence at all s
from which the Board might even draw a favorable inference that their participation would constitute a valuable and significant contribution to this proceeding.
Typical of the representations made in lieu of specific demonstrations of expertise is that of West 1hester People's Action Coalition, Inc., which says (petition at p.
- 1) only that it "has been working to close Indian Point thro;gh a wide range of ap-proaches for over five years."
Tais is hardly the basis for a finding by the Board that such a petitioner can make a valuable contribution to the record.
In the petitions there are no representations what-I ever as to the evidence which such petitioners would adduce, or the experts which they would make available to enlighten the record.
Given the broad subject matter areas to be covered in a short time in these particular hearings, such a showing should be the absolute minimum for intervention.
In situations where, as here, a prospective inter-venor makes no showing before ar. NRC Licensing Board that it will make a substantial contribution to the record, discretion-ary intervention has been denied.
In Duke Power Co. (Oconee
- See p. 10 lIbove.
~
,u Nucle?.r Statior, and McGuire Nuclear Station), LBP-79-2, 9 NRC 90, 102 (1979), intervention was denied to the Natural Resources Defense Council, an organization similar to the organizational petitioners here, because it made no showing that_ it would make a significant contribution to the proceeding "on sub-s' antial issues of law or fact which [would] not otherwise be properly raised or presented."
Since no petitioner has made such a showing in this proceeding, there are no bases for grants of discretionary intervention in this proceeding.
WHEREFORE, Con Edison respectfully requests that the petitions for leave to intervene as interested states filed by Ruth Messinger, et al, Alfred D.
Del Bello, Robert Abrams, and the New York State Assembly and Special Committee on Nuclear Power Safety should be denied; that the petition filed on behalf of Rockland County should not be granted i
pending appropriate authorization; that the petitions filed i
l i
by the organizational petitioners (see p.
10 herein) should be denied; and that further subject matter specificity should
=
,i.
be required of all petitioners prior to consideration of their respective petitions.
Respectfufly submitted, f
jji3'-
BRENT L.
BRANDENBU' G Assistant General Counsel Ccnsolidated Edi on Company of New York, I c.
4 Irving Place New York, New York 10003 (212) 460-4333 Dated:
New York, New York November 24, 1981 c%.
00tKETED
~
UNITED STATES OF AMERICA NUCLEAR REGGLATORY COMMISSION T1 EV 27 P3:!B ATOMIC-SAFETY AND LICENSING BOARD
.; CF SECRETARY m ;dlihG & SERVICE BRANCH Before Administrative Judges:
Louis J. Carter, Chairman Frederick J.
Shon 1'
Dr. Oscar H.
Paris i
)
i In the Matter of
)
Docket Nos. 50-247 SP CONSOLIDATED EDISON COMPANY OF 50-286 SP NEW YORK, INC. (Indian Point, Unit
)
No. 2)
)
POWER AUTHORITY OF THE STATE OF NEW YORK (Indian Point, Unit No. 3)
)
)
CERTIFICATE OF SERVICE certify that I have served copies of the annexed
" Answer to Petitions For Leave to Intervene" on the following parties by first class mail, postage prepaid, this 24th' day of November, 1981:
Samuel J.
Chilk, Secretary Docketing and Service U.
S.
Nuclear Regulatory Branch Commission U.S.-Nuclear Regulatory Washington, D.C.
20555 Commission Washington, D.C.
20555 Louis J.
Carter, Chairman Atomic Safety and Licensing Office of the Executive Board Legal Director l.
U.S.
Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 s
i
~.
~
,..._ _,.. ~. _
I
,n.
Ozcar H.
Paris, Member Thomas R.
Frey, Esq.,
Atomic Safety and Licensing General Counsel Board Power Authority of the U.S.
Nuclear Regulatory State'of New York Commission 10 Columbus Circle Washington, D.C.
20555 New York, New York 10019 Frederick J.
Shon, Member Charles M.
Pratt, Esq.
Atomic Safety and Licensing Assistant General Counsel Board Power Authority of the U.S.
Nuclear Regulatory State of New York Commission 10 Columbus Circle Washington, D.C.
20555 New York, New York 10019 Ellyn R. Weiss, Esq.
Joan Holt, Director William S.
Jordan, III, Esq.
Indian Point Project, Harmon & Weiss,-Suite 506 NY Public Interest Research 1725 I Street Group washington, D.C.
20006 5 Beekman Street New York, New York 10038 Ruth Messinger, et al Members of the Council of Lorna Salzman the City of New York Mid-Atlantic Representative.
City Hall Friends of the Earth New York, New York 10007 208 West 13th Street New York, New York 10011 Botein, Hays, Sklar & Herzberg Attorneys for the Metropolitan Paul F.
Colarulli, Esq.
Transportation Authority Morgan Associates, Chartered 200 Park Avenue 1899 L.
- Street, N.W.
New York, New York 10166 Washington, D.C.
20036 Charles Morgan, Jr.,
Esq.
Joseph J.
Levin, Jr.,
Esq.
Morgan Associates, Chartered Morgan Associates, Chartered 1899 L.
Street, N.W.
1899 L.
Street, N.W.
Washington, D.C.
20036 Washington, D.C.
20036 And.rew S, Roffe, Esq.
Pamela S.
Horowitz, Esq.
Executive Counsel to the Morgan Associates, Chartered Speaker, New York State 1899 L.
Strect, N.W.
l Assembly Chair, Special Washington, D.C.
20036 Committee on Nuclear Power Safety Charles A. Sche'iner State Capitol Co-chairperson, WESPAC Albany, New York 12248 Westchester People's Action Coalition, Inc.
Alan Latman, Esq.
P.
O.
Box 488 1
44 Sunset Drive White Plains, New York 10602 Croton-on-Hudson, New York 10520
. i t.
~
e pe r Zipporah S.
Fleie r, Secretary Environmental Protection West Branch Cons.Jation Bureau Association New York State Attorney 443 Buena Vista Road General's Office New York, New "ork 10956 Ezra I.
Bialik, Esq.
Assistant Attorney General General Counsel Steve Leipzig, Esq.
The Port Auth'ority of New York Deputy Assistant Attorney and New Jersey General One World Trade Center, 66S 2 World Trade Center New York, New York 10048 New York, New York 10047 Attention:
Charles J.
Maikish,Esq.
Marc L.
Parris, Esq.
Jonathan L.
Levine, Esq.
County Attorney Rockland Citizens For Safe Energy The County of Rockland P.
O. Box 74 11 New Hempstead Road New York, New York New City, New York 10956 Geoffrey Cobb Ryan Greater New York Council on Conservation Committee Chairman Energy Director, New York City Audubon Dean R. Corren, Director Society New York University 71 West 23rd Street, Suite 1828 26 Stuyvesant Street New York, New York 10010 New York, New York 10003 Pat Possner, Spokesperson John Gilroy, Westchester Parents Concerned About Indian Coordinator, Point Indian Point Project P.
O.
Box 125 New York Public Interest Croton-on-Hudson, New York 10520 Research Group 240 Central Avenue Jeffrey M.
Blum, Esq.
White Plains, New York 10606 New York University Law School 423 Vanderbilt Hall Alfred B.
Del Bello, 40 Washington Square South Executive of the County of New York, New York 10012 Westchester Westchester County Stanley B.
Klimberg 148 Martine Avenue General Counsel New York, New York 10601 New York State Energy Office 2 Rockefeller State Plaza Clerk's Office Albany, New York 12223 Village of Buchanan 36 Tate Avenue Buchanan, New York 10511 Dated:
November 24, 1981 New York, New York
/
j BRENT L.
BRANDENBURG,__ _,
_-.