ML20039A563
| ML20039A563 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 12/09/1981 |
| From: | Corren D AFFILIATION NOT ASSIGNED |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8112180368 | |
| Download: ML20039A563 (15) | |
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P gp UNITED STATES OF AMERICA
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.W NUCLEAR REGULATORY COMMISSION b
ATOMIC SAFETY AND LICENSING BOARD M
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Before Administrative Judges:
Louis J. Carter, Chairman q, N Frederick J. Shon
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Dr. Oscar H. Paris
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m In the Matter of
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s CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. )
42 (Indian Point Unit 2)
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Docket Nos.
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POWER AUTHORITY OF THE STATE OF NEW YORK (Indian Point Unic 3)
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December 9, 1981 RESPONSE OF THE GREATER NEW YORK COUNCIL ON ENERGY TO NRC STAFF AND LICENSEE ANSWERS TO THE GNYCE PETITION FOR LEAVE TO INTERVENE AND TO PREHEARING MEMORANDA On November 6,1981, the Greater New York Council on Energy (GNYCE) l filed a timely Petition For Leave to Intervene in this proceeding.
Answers to that petition have been filed by the NRC staff and the licensees; Con Edison and the Power Authority of the State of New York (PASNY).
- Here, GNiCE responds to those answers along with a variety of issues that have l
been raised in pre-hearing memoranda and at the December 2 pre-hearing con-1 l
ference.
I. RESPONSE TO THE RESPONSE OF THE NRC STAFF TO PETITION FOR LEAVE TO l
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A.
GNYCE INTENDS TO COMPLY WITH THE AMENDMENTS TO THE PETITION FOR LEAVE
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TO INTERVENE AS INDICATED BY NRC STAFF The NRC staff cited two significant shortcomings in the GNYCE Petition for Leave to Intervene. One was the failure to include written authorization by one member for GNYCE to represent him/her in this proceeding.
The other
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was a failure to show that the signer had been authorized to represent GNYCE.
Both of these shortcomings have been remedied in an amendment to the petitio'n which is being filed concurrently with this filing.
Contrary to the staff, GNYCE believes that all three of the issues cited in the petition were clearly within the domain of the Commission's questions which determine the scope of this proceeding, but since the Staff did not consider that difference a fatal flaw, we need not deal with it further.
f II. RESPONSE TO CON EDISON'S ANSWER TO THE GNYCE PETITION FOR LEAVE TO INTERVENE A.
GNYCE HAS DEMONSTRATED AN INTEREST WHICH MAY BE AFFECTED BY THIS PROCEEDING GNYCE agrees with its ur.derstanding of the NRC Staff position that (with amendments) it has shown that it has a direct interest in the out-come of this proceeding by virtue of its members interests as cited in i
our petition.
In addition, GNYCE has an organizational interest in that it has been a participant, in a broad sense, to the issue of the adjudica-tion of the 1979 Union of Concerned Scientists (UCS) petition regarding Indian Point for the past two years. This participation included com-menting to the Commission on what we considered flaws in the Director of NRR's decision on the UCS petition, calling for this proceeding, and helping to prepare a Citizens' Task Force Report on Interim Operation of l
Indian Point which was also submitted to the Commission.
The licensees' l
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attempts to bar from this proceeding those organizations whose position regarding the adjudication of the UCS peti: ion was eventually accepted by the Commission,over the objections of the licensees,are unseemly.
B. THE GNYCE PETITION WAS SUFFICIENTLY SUBJECT MATTER SPECIFIC Con Edison states that the GNYCE issues are " hopelessly broad or vague, going far beyond the focus clearly delineated in the Commission's
... orders."(Answer to Petitionr. at 16.)
It then cites the issue raised in our petition regarding the economic consequences of an accident at Indian Point for New York City. This issue is necessary to answer two of the Commission's questions, numbers 1 and 6.
Risks cannot be evaluated without evaluating both consequences and probabilities. Thus it is necessary to answer question 1 regarding the risk of an accident at Indian Point that-economic consequences be examined.
Similarly, it would be illogical and incomplete to attempt to answer question 6 regarding the economic con-
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sequences of a shutdown of Indian Point without having a reference or i
baseline case, which is: the economic consequences of continued operation.
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These latter include the (possible) economic consequences of an accident.
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It is the understanding of CNYCE that the " requirement" of the Sep-1 tember 18 order that an occurrance's probability and consequences be given f
equal attention (as per the Interim Policy Statement on nuclear plant I
accident considerations under NEPA) is a direction to the Board as to how it should compile a record for question 1.
The board of course, may wish to suggest such a format for presentations (against which CNYCE would argue) but in no case could such a direction be construed as applying to petitions for leave to intervene.
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C. IT IS NOT NECESSARY FOR GNYCE TO DEMONSTRATE A PARTICULAR CAPABILITY,
FOR CONTRIBUTING TO THE RECORD IN ORDER TO 3E GRANTED INTERVENOR STATUS, HOWEVER, IT DOES HAVE SUCH CAPABILITY It is the understanding of GNYCE that in order to intervene it' must satisfy the aspect and interest requirements of 10C.F.R.32.714 along with having at least one of its contentions ac epted by the bosrd.
In the expectation that these requirements will be satisfied, GNYCE believes that no other representations are necessary, while at the same time it believes that it is otherwise strongly positioned with regard to discre-tionary intervention.
GNYCE's interests differ from those of all other parties and poten-tial parties to this proceeding, and its membership and associates include individuals who are most capable of helping develop a sound record in a timely fashion.
If the Board finds it necessary for us to make detailed representations as to this assertion we will certainly do so.
III. RESPONSE TO PASNY'S ANSWER TO THE GNYCE PETITION FOR LEAVE TO INTERVENE A.
PASNY'S CLAIM THAT GNYCE SHOULD BE DENIED INTERVENTION BECAUSE IT OPPOSES NUCLEAR POWER IS WRONG IN MANY WAYS It is apparently PASNY's belief that First Amendment rights do not extend to those wishing to intervene in hearings on nuclear power plan.ts.
GNYCE wishes to assert most positively that were it an expressed goal of our organization to oppose nuclear power regardless of safety, that would not in itself be a ground for denial of our petition.
In fact, however, such is not a goal of CNYCE regardless of PASNY's imaginings.
(GNYCE's goals are described in its Petition for Leave to Intervene.)
In an attempt to ascribe such a purpose to GNYCE, PASNY quotes me most flatteringly as having characterized Governor Carey as' mislead' and
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' ' misinformed'- an observation I find even more appropriate with hindsight i
since it referred to a letter he wrote assuring the NRC of Indian Point's safety shortly before the October 1980 accident at Indian Point Unit 2.
PASNY includes other quotes of which I am equally proud including the long quote on page 13 and the footnote of page 14, but that on the top of page 14 is unequivocally a (most certainly unintentional) misquote.
I have never said such a thing for the simple reason that it is contrary to my opinion.
Contrary to PASNY's belief, an organization may not be required to have no opinion in order to be a party to this proceeding.
It also may not be required to have the same policy as that of,the Congress.
PASNY also apparently believes that in order to intervene here an organization must believe that the development and use of 2 clear power is in the public interest.
GNYCE finds PASNY's arguments to be silly, irresponsible, and un-worthy of any party to this proceeding. Turned against it, PASNY'S state-ments are shown to be entirely ludicrous, for example, "/PASNY/ is adamant in /its/ belief that the Indian Point plants should / remain open/" (after l
PASNY, p. 7) or, "/PASNY/ should not be allowed to intervene in this pro-l ceeding to promote their goals of / keeping open/ the nuclear power industry" l
l (after PASNY, p. 11).
While such fatuous argumentation can be amusing, it l
can also be time-consuming, and may blossom if not restricted by the Board.
We do resent and object to the wild and totally unsubstantiated assertion by PASNY that GNYCE among others wishes to put the NRC on trial.
By ordering this proceeding, the NRC has accomodated GNYCE's request that it do so.
If anything is on trial in this proceeding it is, by the nature of the Commission's order, the Indian Point Units which are on trial, but i
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it is PASNY, through such thoughtless allegations and endless reiterations of years-old arguments, who seems intent on delaying or disrupting the timely and orderly conduct of the instant proceeding.
B. GNYCE DOES DESERVE STANDING BY VIRTUE OF THE FACT THAT IT REPRESENTS THE VALID INTERESTS OF ITS MEMBERS As stated above, with the filing of an amended petition including affadavits as indicated by the NRC Staff, GNYCE believes it fulfills the requirements for standing in this preceeding.
C. A PETITIONER'S " PURPOSE" IS NOT AN APPROPRIATE CRITERION FOR ELIGIBILITY AS AN INTERVENOR IN THIS PROCEEDING Although, unlike other organizational petitioners, CNYCE was not specifically slandered by PASNY with regard to this issue, we must object to the introduction of intangible, ideological, and extraneous arguments into this proceeding.
Such issues can only serve to delay and dilate the heat ing without adding constructive substantive input.
PASNY attempts to argue at once that orgcnizations which supposedly have the effectively pursued goal of opposing nuclear power also do not focus enough of their attention on nuclear power to be permitted to intervene. PASNY argues without substance, merit or even consistancy.
D. PETITIONERS MAY NOT BE EXCLUDED FROM THIS PROCEEDING BECAUSE OF ANY ALLEGED "SCAREMONGERING" CONDUCT PASNY cites three of the petitioners and yet-to-be-determine "others" as having promoted " psychological distress" (PASNY, p. 38) among the populace surrounding Indian Point.
It claims that this should bar their interventions.
At the same time it argues in a separate motion that fear should be excluded
~7-as an issue in this hearing. These positions are self-contradictory, and GNYCE disagrees with both as explained later in our response to the PASNY motion.
Certainly there is no content in its discussion in its answer to petitions that forms an adequate basis for its request for an evidentiary proceeding..
III. CONCLUSIONS REGARDING THE CON EDISON AND PASNY ANSWERS TO PETITIONS FOR LEAVE TO INTERVENE GNYCE finds that none of the arguments put forth in the Con Edison and PASNY answers against the petition for leave to intervene of GNYCE (once it is amended) are of significance. We find further that both answers, but particularly that of PASNY, are primarily a series of irre-levant arguments, usually disingenuous, at best specious, and without exception counter productive to the task of this proceeding.
GNYCE requests that the Boaro deny the licensees' requests with regard to GNYCE's petition, and also that PASNY's request for an evidentiary hearing on the issues of organisational memberships and so-called "scaremongering" be denied.
l GNYCE specifically requests further that the licensees be directly l
instructed by the Board to desist in the filing of arguments and motior.s l
that are ideological, unsupported, or frivolous in nature, since such:
j issuances serve only to complicate and delay unat should be a hearing on l
substantive matters.
IV. RESPONSE TO LICENSEES' PRE-HEARING MEMORANDA AND PROPOSED ORDERS AND ISSUES RAISED AT THE DECEMBER 2 CONFERENCE A.
THE PROCEDURE ADOPTED IN THIS PROCEEDING SHOULD REFLECT EQUAL TREATMENT OF THE EVENTUAL PARTIES The licensees argue at length that the intervenors should be required not only to state their positions first, but also that they should siibmit
-8 full testimony and be subjected to cross-examination by licensees and Staff before any response is made by the licensees to either the Connaission's questions or to specific contentions raised by intervenors.
The arguments on behalf of this cause fail for two reasons. First, they assure that all intervenors are seeking the shutdown of the plants rather than, and in exclusion of, a desire to assist the Board in compiling a complete record on the C'ommission's questions. in order to optimize public health and safety.
Such an a priori assumption of intent is unacceptable as a basis for deter-mining the procedure of the hearing.
Second, and most important, con Edison's arguments in particular largely ignore the Comission's direction to the Board that there will be no burden of proof in this hearing on any of the parties.
PASNY's arguments attempt to draw the legal distinction between a burden of proof and a burden to carry the hearings forward, but it is GNYCE's understanding of the Comission's orders and its discussions leading up to them that such a distinction was not implied or intended.
i The Commission's intent, as we understand it, was to provide a means whereby a complete and balanced record addressing its questions could be compiled.
It effectively transposed issues raised in the UCS petition into issues raised b2 itself in orders which set up a hearing process of remarkable i
neutrality with regard to the rights and obligations of parties. Nothing in the Commission's orders can be construed as hospitable to the licensees' proposals.to differentiate procedurally between parties to this hearing.
It was, in our view, with the specific purpose of expediting the l
earnest collection of the maximum number of facts relevat.. to its questions regarding Indian Point that the Commission ordered this hearing to not be "on the record," releasing it from the provisions of the Administrative Procedure Act.
But in any case, the instant proceeding was initiated by the l
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Commission, not by the intervenors. Only because intervenors are required to petition for leave to intervene as opposed to the licensees who are auto-matica11y given party status if they so desire, is there any appearance of an asymmetry of the rights and obligations of the parties in this hearing.
This asymmetry must not be carried into the procedural aspects of the sub-scantive portions of the hearing. Once the parties have been selected, they should.all be treated equally.
A further implication of the licensees' protestations regarding submission of information on their own behalf to the Board is that they may be effectively asserting a lack of interest (in the non-legal sense),
-willingness, or ability to assist the Board in its fact-finding task.
Indeed, con Edison's statement that, "This inquiry involves a consideration of accident scenarios not considered by licensees, safety measures proposed by persons other than the licensees, possible improvements to emergency plans which are not the responsibility of licensees, and an assessment of the
' spectrum of risks' posed by plants not owned by the licensees.
The sources of information on these points are obviously persons other than the licensees"(Con Edison, p.25, italics added),
indicates, since these are the points which must be addressed by the Board, a certain degree of contempt on the part of Con Edison for this proceeding.
Perhaps the licencees should be reminded that they are not required to be party to this hearing, and that such protestations do not bode well for an assumption that they are participating in good faith.
As a potential party to this hearing, GNYCE believes that it probably knows the licensees' position on the shutdown issue ajs a whole as well as they bel eve they know ours. GNYCE is still most interested in hearing, and has a right (if a party) to hear the licensees' answers to the Commission's questions.
CNYCE appreciates the Board's decision at the December 2 conference to require that the licensees respond to the Commission's questions.
We further
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. request that the Board continue to unhold, as we heve argued above, an equal treatment of the eventual parties to this proceeding.
B. THE PROGRESS OF THIS HEARING WILL BEST BE SERVED BY THE BOARD NOT PERMANENTLY CONSOLIDATING ANY INTERVENORS GNYCE believes that it has been demonstrated by our actions that the petitioners for intervention are primarily interested in an expeditious hearing of the facts which will realistically accomplish the Board's task in the time allotted.
This is in contrast to the licensees' interest in and attempts to delay the hearing by 'the filing of frivolous and untimely motions.
The various intervenors are capable and willing to, at their own discretion, consolidate efforts for the purpose of expediting specific issues in the hearings.
With extremely limited financial and personnel resources, and with an interest in the public well-being rather than any direct financial interest, the intervenors can ill-afford redundancy or delay.
Indeed, the delay inherent in the Commission's deliberation pro-cess between the time of the Director's decision on the UCS petition regarding Indian Point and its actual beginning of this hearing process, has made che intervenor's task more difficult.
Contrary to the belief of the licensees, GNYCE has not had two years to prepare testimony, since the expenditure of such efforts would have been imprudent until the uncertainty surrounding the hearings was eliminated by the Commission's September order.
The licensees have a strong tendency to anticipate the arguments of intervening parties to thia hearing, assuming a uniformity of interests and positions.
This is often incorrect, as we e pect subsequent filings should indicate.
In the public-interest jungle, natural selection tends to eliminate redundant organizations.
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If the Board decides to require permanent consolidation of various intervenors, the result would be less efficiency and greater delay in the hearings.
Consolidated intervenors who wished to treat a particular issue in differing manners would be compelled to move to show a " prejudice to their interest" which adjudication would consume their time.and that of the Board.
CNYCE sutmits thr.c none of the partys' interests are more closely related than those of the two licensees.
This is certainly reflected in their submissions to the Board, especially their pre-hearing memoranda.
If any time would be saved by consolidation, it would be by consolidating r
the licensees.. This would yield the benefits of saving this hearing from a tremendous amount of largly redundant paperwork and time, and saving the licensees' customers a significant amount of money.
Since this hearing is investigatory, none of the licensees' constitution rights would be thereby assaulted.
C. EXPRESS MAIL SERVICE OF DOCUMENTS SHOULD ONLY BE REQUIRED IF THE BOARD ARRANCES TO SUPPLY FUNDS While CNYCE agrees with Con Edison that the delay from ordinary first-class e ail is a problem, we feel its severity, with regard to the
. entire year-long hearing process is overstated, especially considering the financial burden of express mail.
The licensees can afford (at their customers' expense) to nerve documents to a lengthy service list by express mail, but CNYCE, and we believe other intervenors, cannot.
While we would welcome the Board's financial support for such mailings as a slight expedient, we believe that other factors, such as the basic schedule adopted for the hearing play a far more important role in deter-I.
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12 mining whether or not the hearings reach a timely conclusion.
We further believe that the request on the part of Con Edison is specifically designed to hinder intervention by making it' financially difficult or impossible.
D. THE BOARD SHOULD ADOPT THE SCHEDULE AND PROCEDURES PROPOSED IN*
THE UCS-NYPIe
-r,. HEARING MEMORANDUM AND PROPOSED ORDER Without repeating in detail those provisions, GNYCE wishes to strongly endorse the scheduling and procedural proposals made in sections IV. and V. (pages 4-11) of the UCS-NYPIRG pre-hearing memorandum and proposed order.
The UCS-NYPIRG proposed schedule shows a bifurcated hearing which GNYCE believes most appropriately accommodates the Commission's orders.
The Ccmmssion was motivated to order this hearing to answer safety and risk questions and went further to grant the Board the discretion to reevaluate the issue of interim operation.
Because of the logical priority and inherent timely quality of these issues, they should be addressed first.
The UCS-NYPIRC schedule is also accelerated-as compared with the schedules proposed by the Staff and licensees, with regard to the date of the start of actual hearings.
It is thus eminently most practical if the Board wishes to plan a hearing that has some assurance of ending by September 18, 1982.
By starting the actual hearings in April rather than f
in June as proposed by Staff and licensees, substantive matter is enhanced
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rather than legal haggling, and unforseen delays can be accommodated without catastrophe. This also provides_ time for reply findings of fact which is 1
an indispensable step.
GNYCE also wishes to specifically urge the Board's acceptance of the UCS-NYPIRG suggestion as to the location of the hearings. The two-
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s location arrangement they have proposed is sensible and workable.
Both locations are sufficiently in the " vicinity" of Indian Point.
White Plains can be conveniently reached by those in the immediate vicinity of Indian Point, and Manhattan is most convenient for the majority of the parties.
Hearings in any other location (s) would cause a hardship to intervepors with limited funds for transportation and limited (volunteer) time for their efforts in this proceeding.
E. PSYCHOLOGICAL STRESS OR FEAR AS A RESULT OF THE OPERATION OF THE INDIAN POINT NUCLEAR PLANTS IS A VALID ISSUE IN THIS HEARING BUT ALLEGED "SCAREMONCERING CONDUCT" CANNOT '1E A BASIS FOR EXCLUDING PETITIONERS Fear should not, under th'e Atomic Energy Act, determine the NRC's i
decision as to whether to license a reactor.
Howeve r, this hearing is i
not a licensing proceeding, but one designed-to answer seven substantive questions raised by the Commission.
Those questions in several instances t
go beyond the relatively narrow licensing issues.
Indeed, the Commission inquires as to the " energy, environmental, economic, or other consequences of a shutdown of Indian Point Unit 2 and/or Unit 3."
Obviously, the aspects
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restrictions of a licensing proceeding do not apply in this hearing, and if-there is a difference in the level of citizen fear or psychological stress l
between the conditions of operation and shutdown of the plants, then such i
level is a consequence worthy of investigation to a reasonable degree by the Board.
i No anc, other than PASNY, by its actions, has indicated that fear is the major issue in this hearing, or has engaged in " soapbox oratory." Yet the issue of fear and psychological stress cannot be dismissed out of hand, and it cannot be presumed " irrational."
(Even if all fear of Indian Point (as distinguished from fear of nuclear power in general) was irrational, l
as a demonstrable ~ reality connected with Indian Point's operation it would still be a valid issue in this hearing.)
Furthermore, an issue cannot be specifically ignored because it is difficult te measure or value. The example given by PASNY in its motion to exclude fear regarding the National 4
Environmental Policy Act is not applicable to this hearing because here, fear is not to be construed as "an impact which must be mitigated." In this hearing, fear is merely one factor ar.ong many that together will build a picture of costs and benefits associated with the operation of the Indian Point plants.
GNYCE has reviewed the documents attached to the PASNY motion which it intends support its allegations of so-called "scaremongering conduct."
We find the NYPIRG Parents' Survey to be an interesting, but otherwise unremarkable, questionaire.
Its questions are practical, serious, to-the-point, and wholly non-rhetorical.
While we realize (unlike PASNY) that neither the survey nor its results have been submitted as testimony to the Board, we would expect such a survey to provide valid and valuable information.
l The FUSE leaflet, which PASNY alleges to have been distributed by NYPIRG, is an entirely different type of document.
Its questions, although often raising legitimate issues, are clearly rhetorical and pro-pagandistic.
Such activities however, are equally unremarkable.
No party to this proceeding can be constrained by that fact in its freedom to distribute whatever propaganda it wishes, outside of this procc ding.
GNYCE would certainly not wish to seek to curtail Con Edison's right to distribute propaganda to Westchester high school teachers or in its bill mailings (which latter propaganda the Public Service Cormission did seek to stop).
It should be clear from the above that issues raised by PASNY such
i as "scaremongering" are_ subject only to ideological, aesthetic, or personal jhdgment Thus, they cannot be a topic of an evidentiary hearing.
Sr:h a hearing would be a fruitless diversion and a postponement of the Board's substantive task.
PASNY has not shown that any of the intervenors have materially added to the fear of Indian Point felt by members of the public.
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has_also not shown why, if the intervenors had added to such fear, the issue should be neglected in its entirety, even by intervenors who had not participated in such activities, or by the Board itself. Regarding the affidavit of Dr. Dupont, GNYCE is similarly unimpressed. DuPont fails to show how phobic fear of nuclear power in general relates to this pro-ceeding.
Such a conr.ection is apparently rssumed to be imagined in minds attuned to the particular superstitions shared by PASNY and DuPont.
Additionally, DuPont is unqualified to determine what is and what is not-a phobic fear with regard to nuclear power.
By his own definition, for-a fear to be phobic it must be irrational.
In that DuPont has failed to indicate any expertise on his part in nuclear power technology, he is not qualified to distinguish between irrdtional and rational fears regarding nuclear power in general.
DuPont is even less qualified to judge the rationality of fears related to Indian Point in specific.
Respectfully Submitted,
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Dated: December 9, 1981 Dean R. Corren
- Director, i
Creater New York Council on Energy c/o Dean Corren New York University 26 Stuyvesant Street New York, N.Y.
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