ML20039B533

Response Opposing PASNY 811202 Motion to Exclude Fear as Issue in Proceeding.Motion Should Be Summarily Dismissed & PASNY Required to Limit Participation to Issues.Certificate of Svc Encl

ML20039B533
Person / Time
Site:	Indian Point
Issue date:	12/17/1981
From:	Blum J, Holt J, Jordan W, Posner P AFFILIATION NOT ASSIGNED, HARMON & WEISS, PUBLIC INTEREST RESEARCH GROUP, NEW YORK, UNION OF CONCERNED SCIENTISTS
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-SP, NUDOCS 8112230203
Download: ML20039B533 (8)

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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD u % gOgg

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CONSOLIDATED EDISON COMPANY OF NEW YORK 1 (Indian Point Unit 2) OpggHos.50-247SP -

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UNION OF CONCERNED SCIENTISTS, NEW YORK PUBLIC INTEREST RESEARCH GROUP, AN PARENTS CONCERNED ABOUT INDIAN POINT RESPONSE TO PASNY'S MOTION?

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FEAR OF NUCLEAR POWER AS AN ISSUE IN THIS PROCEEDING

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.P y-INTRODUCTION

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During the pre-hearing conference of December 2,1981, the Power -

!\uthority of the State of New York (PASNY) dramatically announced that its i m:

Motion to Exclude Fear As An Issue In This Proceedino was being filed that h.

very oay at the Commission. This Motion repeats PASNY's accusation of "scaremongering" against the Union of Concerned Scientists (UCS), the New York b_,

E Public Interest Research Group, Inc. (NYPIRG), Parents Concerned About Indian "

Point (Parents), and other iitervenors, and urges the Board to exclude the issue of fear of nuclear power from this proceeding for variqps reasons.

Hj Although it is difficult to discern precisely what the motion seeks, it .g is clear that none of the arguments in support of the motion have merit. b Ee.

UEii PASNY'S memorandum appears to merge three separate issues, the common denomi-nator of v;hich is that none is ripe for current adjudication.

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EF' Cecause PASNY's Motion levels accusations against UCS, NYPIRG and Parents specifically, UCS, NYPIRG and Parents jointly submit this Response.

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1. PASNY'S APPARENT ATTEMDT TO EXCLUDE CERTAIN EVIDENCE IS GROSSLY RREMATURE.  ;

PASNY's most focused concern is that NYPIRG will intrcduce the results '

of.a surycy which PASNY considers " biased" and therefore inadmissible. The fact is that NYPIRG has not in'dicated any plans to submit the results of this survey as evidence. Thus far, only PASNY has brought the survey to the Board's attention. This is a classic example of an issue that courts say is " unripe for adjudication." To avoid wasting time, courts demand that there 5e "a concrete case or controversy" before rushing off into litigation. If and when NYPIRG or any other intervenor decides to iritroduce the results of the survey as evidence, PASNY will be otified promptly and may resubmit this portion of its motion e.t that time.

II. PASNY'S AD HOMINEM ATTACKS ON INTERVEN0RS ARE BESIDE THE POINT. k The second facet of PASNY's motion appears to seek some sort of restric-  !

tion on intervenors based on a curious extension of the common law doctrine of i I

"es toppel . " Aside from the inapplicability of " estoppel" to this proceeding (this is a licensing board, not a court of equity), the motion lacks any colorable grounds. The only one put forth is that intervenors are " scare-mongers" because they are critical of safety defects in operating nuclear ple r,ts. To exclude intervenors because they have been critical of nuclear a power is flatly contrary to the Commission's policy that "public participation

,r e through intervention is a positive factor in the licensing process and that i

f UCS again protests PASNY's misquoting of Robert Pollard. Mr. Pollard has h never compared a nuclear plant license to a license to murder. See Amendment to UCS Petition for Leave to Intervene, and Response to NRC StarCrensclidated .[

Edison, and PASNY Challenges to UCS Standing to Intervene, filed December 10, j[

1981, at 12-13.

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intervenors perform a valuable function and are to be complimented and

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encouraged." HRC Staff Practice and Procedure Dioest, Sec.II.8.1, at 9. -

Also see, Virginia Electric & Power Co. (North Anna Dower Station, Units 1

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& 2), ALAB-256,1 NRC 10,18 at n.9 (1975); Consolidated Edison Co. of N.Y. ,

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Inc. (Indian Point Nuclear Generating Station, Unit 2), ALAB-243, 8 AEC 850, [

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E!3 (1974); Vennont Yankee Nuclear Power Coro. (Vermont Yankee Nuclear Power i E

Station), ALAB-229, 8 AEC 425 (1974). Gulf States Utilities Co. (River had Station, Units 1 & 2), ALAB-183, 7 AEC 222 (1974).

To assert that only persons enthusiastic about nuclear power can e Y

competently address its problems and areas for improvement is contrary to y reason.

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III.

THERE IS NO PRECEDENT FOR AN OMNIBUS EXCLUSION OF THE CONCE I" FROM NRC PROCEEDINGS; OBJECTIONS TO _ CONTENTIONS AND EVIDENCE MUST BE -

PAISED AT THE PROPER TIME.

The third facet of PASNY's motion is an attempt to declare some loosely

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defined issues off limits for the proceedings. Unfortunately, PASNY has not 5 g.y been able to specify what issues are to be excluded other than to use the word ..

" fear" in an omnibus fashion. Part of the problem, again, is that PASNY is _=

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not responding to specific contentions, testimony or evidence. It is speaking I~

in abstract generalities that are necessarily imprecise and therefore confusing.

The scope of issues permissably raised in this hearing.,,fi s defined by the dai In contrast to the NYPIRG survey which conceivably could have some role in {su these proceedings, the pamphlet of the Fund for Secure Energy (FUSE) is totally beyond the pale of the hearings. FUSE is not a participant before this board, and therefore cannot present any defense of the specific wording it adopted.

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NYPIRG merely asserts that the FUSE pamphlet is a legitimate #p..

instrument of mass communication, no more deceptive or alarmist than many of the ' educational materials' and 'public information messages' distributed by nuclear power licensees and advocates. p=

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Commission's seven questions.

Insofar as -' fear might be considered in

-answering any of these questions,-it probably should be considered by the Board; insofar as it is a separate issue unrelated to the questions, it probably should not be.

The main point is that challenges to particular contentions or testi-mony should be raised at the appropriate time when there n specific material =

for the Board to consider.

O" PASNY now seeks'to invoke the still unsettled _ precedent from f4t.ropo--

_11:an Edison Co. (Three Mile Island Nuclear Station, Unit 1),1 CLI-80-39, b

E 12 NRC 607 (1980) where the Commission' deadlocked 2-2 on the question of is whether psychological stress was cognizable as a cost of restart. ** It.would

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be folly to move from such a procedural decision to a general proclamation e E

that an Atomic Safety and Licensing Board must always shut its eyes to fear E at any time in any form. {m re Separate uses of " fear" must be considered separately. If, for example, an intervenne attempted to argue in assessing the costs of shutdown that such .. .

costs must be greatly discounted by the benefit of fear being alleviated, then $s Em Metropolitan Edison might be relevant. However, if the argument were that j" emergency plans are inadequate because they have no provision to cope with Et E

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• Of the four other cases cited by PASNY only State of New Hampshire v. AEC, 406 F.2d 170 (1st Cir.), cert denied, 395 U.S. 962 (1969), is even vaguely @

relevart. There the First Circuit held that the Atomic Energy Act did n0t g ~

extend Id. at 174. to thermal pollution, but only to "special hazards of radioactivity."

f Wizard of radioactivity.It did not address whether fear of nuclear powtr was a sp ==

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• • In Metropolitan Edison, there were four separate opinions, and no majority

!s on the Act.

Energy question of cognizability of psychological distrest under the Atomic 3 In the subsequent reconsideration, a Commission majority H

(apparently 3-2) sustained that result as a matter of procedure, but there p were no opinions by any of the majority to indicate whether the decision *R was based on an interpretation of the Atomic Energy Act or on procedural . ' hgg considerations or matters of discretion. Metropolitan Edison Co. (Three EE Mile Island Nuclear Station, Unit 1), CLI-81-20 (filed September 17,1981). y

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' potential: panic behavior in an emergencya then the Metrooolitan Edison a

precedent would have little if any relevance. In any case, consideration l of the fietropolitan Edison issue is untimely.

There are arguably three point:. at vi E5 PASNY's arauments could be presented consistent with an efficient, non-disruptive hearing process. They are: (1) in the answer to the Petitions for Leave to Intervene. (2) in the up-coming response to contentions, or (3) in objections to the introduction of partic'ular evidence. Rather than wait for the proper time, PASNY has chosen to disrupt the proceedings with vague allegations and arguments and inflamatory rhetoric.

We find this attitude and approach on the part of PASNY to be unfor-tunate. While it poses little danger to the participation of UCS, NYPIRG, Parents or other .intervenors, it threatens to undennine this insestigation ,

1 by diverting attention from the serious issues of concern to the Commission.

As such, it is an insult.to the Board, the Commission, and the very investiga-tive process autrorized and mandated by the Atomic Energy Act.

3 For these reasons, UCS, NYPIRG aad Parents urge that PASNY's Motion be summarily dismissed and that the Boar:i require PASNY to limit its partici-pation to tne issues of this proceeding and to refrain from further burdensome dilatory actions and arguments.

, / Respe'atfully s bmitted, '

Ad . lu nl Y Jgffrdy M( Blum,

/ \ Jo Holt h'bw: York IJniversity Law Schq/i ol Ne York Public Interest Research Group, Inc.

423 Vanderbuilt Hall 5 ekman Street 40 Washington Square South New York, New York 038 , l N '

Pht Posner Parents Concerned Abbut

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William S. Jordan, al Hannon & Weiss f

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• f Indian Point 1725IStreet,N.W.,J Suite 505 P.O. Box 125 Washington, D.C. 20006 -

Croton-On-Hudson, NY 10520

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December 17, 1981~ ---

Dated: ~ - - - - - -

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i UNITED STATES OF AMERICA . DOCKE  !

NUCLEAR REGULATORY COMMISSION USE 4

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W DEC 21 97:35 {

'BEFORE THE ATOMIC SAFETY AND LICENSING BOARD i

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Sf'ANC e

!- i j -In the Matter of ) l 1 )

Dccket Nos. 50-247 SP CONSOLIIM ED EDIS0tl COMPANY OF NEW YORK )

-(Indian Point Unit 2) ). 50-286 SP

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POWER AUTHORITY OF THE STATE OF NEW YORK .

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(Indian Point Unit 3) )

CERTIFICATE OF SERVICE e

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This is to certify that copies of " UNION OF CONCERNED SCIENTISTS, NEW YORK PUBLIC g

! INTEREST RESEARCH GROUP,. AND PARENTS CONCERNED ABOUT INDIAN POINT RESPONSE TO PASNY'S g MOTION TO EXCLUDE FEAR OF NUCLEAR POWER AS AN ISSUE IN THIS PROCEEDING" have been ,

served on December 17,1981, .by first class mail, postage prepaid, on the following, l d

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! - Louis 'J. Carter,- tsc. , chai rman Janice Moore, Esq.  !

Administrative Judce Office of the Execut ve legal Atomic Safety and Licensing Board' Di rector l a

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Ccanission Washington, D.C. 20555 Washincton, D.C. 20555 Dr. Oscar H. Paris Brent L. Brandenburg, Esq. '

-Administrative Judge Assistant General Counsel Atomic Safety and Licensina Board. Ccnselidated Edison Co. h U.S. Nuclear Regulatory Commission of New York, - Inc.

l Washington, D.C. 20555 - 4 Irvina Place'  ;

New York, NY 10003 g Mr. Frederick J. Shon Adminsitrative Judce Charles M. Dratt, Esc. i Atomic Safety and-Licensing Board Assistant General Counsel U.S. Nuclear Regulatory Commission Power Authority of the State of f Washington, D.C. 20555 New York l 10 Columbus Circle l

..- Docketing and Service Section New York,fiY 10019 g Office of the Secretary 8 U.S.'?luclear Reculatory Comissiori  !

Washington, D.C. 20555 l l

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- Ellyn R. ' Weiss, Esq. Charles J. Maikish, Esq.

William S. Jordan, III, Esq. Litigation'Divis1or.

The Port Authority of N.W., Suite 505 New York and New Jersey 2 treet Washington, D.C. 20006 One World Trade Center -

New York, NY 10048 Jeffrey M. Blum, Esq.

N'ew York University Law School Ezra I. Bialik, Esq.

Steve Leips12, Eso.

423 Vanderbuilt Hall ,

40 Washington Square South Environmental Protection Bureau New York, NY 10012 New York State Attorney General s Office Pat Posner, Spokesperson Two World Trade Center Parents Concerned About New York, NY 10047 l Indian Point

.* Alfred B. Del Bello C ton n Hudson, NY 10520 Westchester County Executive Westchester County Charles A. Scheiner, Co-Chairperson 148 Martine Avenue Westchester People's Action Coali- New York, NY 10601 Andrew S. Roffe, Csq.

P.O. Box White Plains, NY 10602 New York State Assembly l

Albany, NY 12248 44 Su'ns tTDrivs~ Renee scnwartz, Esq.

Croton-on-Hudson, NY 10520 Botein, Hays, Sklar & Herzberg At;torneys for Metropolitan Lorna Sal 7 man Transportation Authority Mid-Atlantic Representative 200 Park Avenue Frierds of the Earth, Inc. New York,' NY 10166 208 West 13th Ssreet New Ytak, NY 10011 Stanley S. Klimberg General Counsel l Zipporah S. Fleisher New York State Energy Office West Branch Conservation 2 Rockerfeller State Plaza Association Albany, NY 12223 l 443 Buena Vista Road New York, NY 10956 Judith Kessler Rockland Citizens for Safe Honorable Ruth Messinger Eneray Member of the Council of the P.O. Box 74 City of New York New' City, NY 10956 District #4 City Hall Eric Ole Thorsen i New York, NY 10007 Assistant County Attorney l County of Rockland 1 Greater New York Council 11 New Hempstead Road .

on Energy' New City, NY 10956 c/o Dea 9 R. Corren, Director l New York University Richard L. Brodsky -

! 26 Stuyvesant Street ~' ' County Office Building New York, NY 10003 - . _ _ . ~ . White.Pltins, NY 10601 ---c 4

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Geoffrey Cobb Ryan Mayor George V. Begany Conservation Committee Village of Buchanan '

Chairman, Director 236 Tate Avenue flew York City Audubon Society Buchanan, fly 10511 i 71 West 23rd Street, Suite 1828 flew York,fiY 10010 6

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