ML20039C221

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Reply Opposing Amended Petitions to Intervene & Rl Brodsky Petition to Intervene.Defects in Petitions Not Cured by Amended Petitions
ML20039C221
Person / Time
Site: Indian Point  Entergy icon.png
Issue date: 12/21/1981
From: Colarulli P
MORGAN ASSOCIATES, POWER AUTHORITY OF THE STATE OF NEW YORK (NEW YORK
To:
Atomic Safety and Licensing Board Panel
Shared Package
ML20039C222 List:
References
ISSUANCES-SP, NUDOCS 8112290075
Download: ML20039C221 (44)
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Be fore Administrative Judges: '\

Louis J. Carter, Ch a irma n Frederick J. Shon Dr. Oscar H. Paris

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In the Matter of )

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CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. I Docke t Mos.

(Indian Point, Unit No. 2) ) 50-247 SP

) 50-286 SP POWER AUTHORITY OF THE STATE OF NEW YORX )

(Indian Point, Unit No. 3) )

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POWER AUTHORITY'S REPLY TO AMENDED PETITIONS FCR LEAVE TO INTERVENE, AND ANSWER TO PETITION FOR LEAVE TO IFTERVENE OF R ICi1 AR D L. B RO DS K Y 3

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.Q TABLE OF CONTENTS I. UNION OF CONCERNED SCIENTISTS.................. 5 A. UCS' Steadfast Opposition to the Use of Nuclear Power as an Energy Source Requires It to Present Its Political Views in Political Forums and Precludes It from Participation in this Investigatory-Adjudicatory Proceeding.................... 7 B. Having Admitted that It Has No Members, UCS Has No Standing to Appear in this Proceeding................................ 10 C. UCS' Own Financial Interest in the Outcome of this Hearing Doe s Not Constitute a Legally Cognizable Injury to It........... 11 D. UCS' Participation Is Designed to Confuse Rather than Clarify, and thus Its Discretionary Intervention in this Proceeding Is Not in the Public Interest.................................. 14 II. NEW YORK PUBLIC INTEREST RESEARCH GROUP, INC.

and PARENTS CONCERNED ABOUT INDIAN POINT...... 16 III. WESTCHESTER PEOPLE'S ACTION COALITION, INC.... 17 A. WESPAC'S S te a d f a's t Cpposition to the Use of Nuclear Power as an Energy Source Precludes It from Participating in this Proceeding........................ 17

3. WESPAC Has Not Demonstrated tha t Its
  • embers Have an " Interest" in this Proceeding................................ 19 C. WESPAC Has Not Shown that Its Own Interests Ar e Le g a l ly Cog n i z a b l e . . . . . . . . . . 2 0 D. WESPAC May Not Litigate the Claims of Its Members Because the Interests It Seeks to Protect Are Not Ge rmane to the Organization's Purpose............. 21

, i E. Because WESPAC Has Not Proffered Evidence that It Will Contribute Positively to this Proceeding, Discretionary Intervention Is In a p p r op r i a t e . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 3 I V. WEST BRANCH CONSERVATION ASSOC I ATION. . . . . . . . . . 24 A. WBCA Has Not Shown that Its Own Interests Are Legally Cognizable. . . . . . . . . . 24 V. GREATER NEW YORK COUNCIL ON ENERGY. . . . . . . . . . . . 25 A. GNYCE's Steadf ast Opposition to the Use of Nuclear Power as an Energy .

Source Precludes It from Participating in this Adj udicatory Proceeding. . . . . . . . . . . 25 B. Having Failed to Prove that It Has Members, GNYCE Has No Standing to Appear in this Proceeding................. 26 C. Because GNYCE Has Not Proffered Evidence that It Will Contribute Positively to this Proceeding, Discretionary Intervention Is Inappropriate............................. 28 VI. NEW YORK CITY AUDUBON SOCIETY................. 29 VII. ROCKLAND CITIZENS FOR SAFE ENERGY............. 29 A. RCSE Has Not Demonstrated that the Persons It Purports to Represent Are Actually Members.......................... 29 VIII. P. EMBERS OF THE COUNCIL OF THE CITY OF NEW YORK...................................... 30 A. Members Have Failed to Obtain Proper Authorization............................. 30 B. The Members' Interests Will Be Adequately Represented in this Hearing by Other Public Agencies Seeking Participation as Representatives of Interested States. . . . . . 30

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C. The Rule Allowing Intervention of Interested States Was Not Intended to Allow the Introdution of Duplicative Evidence and Testimony into Adjudicatory Proceedings............................... 31 IX. RICHARD L. BRODSKY............................ 33 A. Mr. Brodsky Has Failed to Provide Proof that He Qualifies as an Interested State.. 34 B. Because Mr. Brodsky Has No t Proffered Evidence that He Will Contribute Positively to this Proceeding, Discretionary In tervention Is Inappropriate . . . . . . . . . . . . . 3 4 C. As a Private Litigant, Mr. Brodsky May Not Assert the Rights of Third Parties Un d e r 10 C . F . R S 2 . 714 . . . . . . . . . . . . . . . . . . . . 3 6 D. Be cause Mr. Brodsky Cpposes the Existence of the Indian Point Powe r Plant Regardless of Safety, He Should Not Be Allowed to Seek Relie f in this Proceeding . . . . . . . . . . . . 37 C O NC L US I O N . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 9 1

5-I. UNION OF CONCERNED SCIENTISTS (UCS)

With an air of injured innocence, the small group which controls UCS (the Cambridge Group)1 seeks to convince this Atomic Safety and Licensing Board (Board) that the issues raised in the Power Authority's Answer to Petitions for Leave to Intervene (Nov. 24, 1981) ( Authority's Answer) are new or, as f ar as UCS is concerned, unheard of. Were it not for the exclusion of UCS from other proceedings on the precise ground that i t failed to particularize its interests,2 that air of injured innocence might have f resh-ness.

Regarding scaremongering and " unseemly polemics," the Cambridge Group must be f amiliar with the following comment on a UCS "s tudy"3 about the release of gas into the atmosphere at Three Mile Island. The New York Times wrote that UCS' unwillingness to accept even an admittedly safe plan casts doubt on the good faith of the Concerned Scientists. Worse, the

[UCS'] tortured reasoning and far-fetched proposals will probably heighten the very fears they are intended to allay.

1. See text at 13 & n.1, infra.
2. Sec , e .g. , In re Virginia Electric & Power Co.

(North Anna Nuclear Power Station, Units 1 and 2), 9 N.R.C.

402, 404 (1979).

3. See UCS, Decontamination of Krypton-85 f rom Three Mile Island Muclear Plant (1980).

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6-Fanning the Fears at Three Mile Island, N.Y. Times, May 16, 1980, S 1, a t 30, col. 1 (editorial) (Attached as Exhibit A).

Injured innocence aside, UCS' response does allege with stark candor an injury which this Board should put to rest: "UCS has a financial interest in assuring the safety of the Indian Point facility." Amendment to UCS' Petition f or Leave to Intervene, and Response to NRC Staff, Consolidated Edison, and PASNY Challenges to UCS Standing to In te rve ne a t 6 n . 3 ( De c . 10, 1981) (UCS' Amended Pe tition) .

UCS states that, based upon the financial injury to UCS, it has a right to intervene in this proceedi.3 See id.

One of UCS' "public interes t" companions--apparently representing a different public, a different interest--

states, "In the public-interest jungle, natural selection tends to eliminate redundant organizations." Pesponse of the Greater New York Council on Energy to NRC Staf f and Licensee Answers to the GNYCE Petition for Leave to Inter-vene and to Prehearing Memoranda at 10 ( De c . 9, 1981).

That is exactly what a proceeding like this could become: a jungle in which sundry political groups use the proceeding to fill their cof fers, or to use UCS' phrase, "for its survival." UCS' Amended Petition at 6 n.3. The

Cambridge Group has done well. Its tom-toms raised $1.6 million in 1980.1 A. UCS' STEADFAST OPPOSITION TO THE USE OF NUCLEAR POWER AS AN ENERGY SOURCE REQUIRES IT TO PRESENT ITS POLITI-CAL TI EWS IN POLITIC AL FORUMS AND PRECLUDES IT FROM PA RTIC I PATION IN THIS INVESTIGATORY-ADJUDICATORY PR OC E E DING UCS' goal is to eliminate nuclear power as a viable energy source for this nation, contrary to decisions made by the nation's elected of ficials and by judicial institutions.2 Even UCS' plea of misquote (not by the Authority but by the Boston Globe) constitutes a factual defense to only one of its statements: whether Robert Pollard, the UCS spokes-

1. See Foundation for Public Af f airs, Public Interest Profiles at F-87 (1980).
2. See Atomic Energy Act of 1954, 4 2 U. S . C. S S 2011, 2013(d); TVA 7. Hill, 437 U.S. 153, 194 (1978); Vermont Yankee Nuclear Power Corp. v. Natural Resources De fense Council, In c . , 4 3 5 U. S . 519, 557-58 (1978).

Here, UCS alleges that its " basic position on nuclear powe r" is consistent with congressional goals and mirrors the posture it has taken on the shutdown of the Indian Point facilities. UCS' Amended Petition at 13. UCS is confused.

The group states that it " clearly indicated" in its Petition for Decommissioning of Indian Point Unit 1 and Suspension of Operation of Units 2& 3 (Sept. 17, 1979) ( Pe t i tio n ) , that "it believed that Indian Point Units 1 and 2 should be shut down only until they are rendered saf e." UCS' Ar.ende d Pe tition at 13 (emphasis added).

However, UCS actually argued that "the provisional '

ope ra ting license for Indian Point Unit 1 should be revoked and the plant decontaminated and decommissioned ," Petition a t 2, and " Units 2 and 3 should not resume operation, unless and until" UCS' demands are met. Id. at 3-4 (emphasis added).

O e man, did or did not say that he views "[a] nuclear plant license [to be] nothing more or less than a murder license,"

matters little. See N-Protest Attracts Thousands, B. Globe, May 7, 1979, at 1, col. 4 (Attached as Exhibit B);

Authority's Answer at 4, 39 n.1; UCS' Amended Petition at 12-13. UCS allows all of Mr. Pollard's other statements and those of Dr. Henry W. Kendall, the leader of UCS' Cambridge Group, and statements attributed to UCS as an entity to stand unrefuted.1 Take Mr. Pollard, for example, testifying before the New York State Legislature:

Am I opposed to nuclear power?

I think so, on the g it is not a very wise choice jgynd that Mr. Pollard "advoca t [e s] that [the nation) stop going f orward wi th nuclear powerplants." 3 operating plants pose

1. For the text of these statements, see Authority's Answer a t 6-8. See also Fed . R. Civ .P. 8(d) (" Averments

[ legal and factualj in a pleading to which a responsive pleading is required . . . are admitted when not denied in the responsive pleading."). Accord, Legal Aid Society of Alameda County v. Brennan, 608 F.2d 1319, 1334 (9th Cir.

1979), cert. denied, 447 U.S. 921 (1980); Weitnauer Trading Co. v. Annis, 516 F.2d 878, 880-81 (2d Cir. 1975); People s Na tural Ga s Co . v . FPC, 127 F.2d 153, 156 (D.C.Cir.), cert.

denied, 316 U.S. 700 (1942).

2. Transcript of Testimony of Robert Pollard, Hearing Before the Special Comm. on Nuclear Safety at 79 (1979)

(hereinaf ter Pollard's Special Committee Te stimony) .

3. Investigation of Charges Relating to Nuclear Peactor Sa fety: Hearings Be fore the Joint Comm. on Atomic

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an " undue risk to public health and safety."1 Because UCS must see these and like proceedings as political forums, kinds of fundraising plateaus in the " pub-lic-interest jungle," it no doubt believes that to require it to take its case to the appropriate constitutionally-designated democratic forums denies it fundamental first amendment rights. UCS' Amended Petition at 12; see id. at

6. However, this investigatory-adjudicatory proceeding before an atomic safety and licensing board is not a soap-box.2 Energy , 9 4th Cong . , 2d Sess. 124 (1976) (statement of Robert D. Pollard).
1. Industry's Response to the Accident at Three Mile Island: Oversight Hearings Before the Subcomm. on Energy and the Environment of the House Comm. on Interior and Insular Affairs, 96th Cong., 1st Sess. 123 (1979) (testimony of Robert D. Pollard). See also Transcript of Testimony of P.obe r t D. Pollard Before the Subcomm. on Energy and the Environment of the House Comm. on Interior and In sul ar Affairs, 97th Cong., 1st Sess. 2 (1981) (testimony reoarding the Bingham Amendment to the Atomic Energy Act of 1954, Pub.

L. No.96-295, S 110, 94 Stat. 785 (1980)); State Panel Told Indian Pt. Plant Must Be Closed , N.Y. Times, May 25, 1979, S 2, at 2, col. 6; Pollard's Special Committee Testimony at 15; Industry's Response to the Accident at Three Mile Island: Ove rs igh t Hearings Before the Subcomm. on Energy and Environment of the House Comm. on Interior and Insular Affairs, 96th Cong., 1st Sess. 43 (1979) (statement of Robert D. Pollard); Transcript of Statement of Robert D.

Pollard Before the N.Y. Legislatu e at 1 (1979); Close Indian Point Plants, Nuke Scientist Urges, N.Y. Daily News ,

May 25, 1979, at 6, col. 3.

2. See In re Pennsylvania Power & Light Co .

(Susquehanna Steam Electric Station, Units 1 and 2), 10 N.R.C. 597, 602 (1979).

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B. HAVING ADMITTED THAT IT HAS NO MEMBERS, UCS HAS NO STANDING TO APPEAR IN THIS PR OC EE D ING Contrary to UCS' assertion, UCS Amended Petition at 2-3, judicial concepts of standing govern this proceeding.1 UCS labels its adherents " sponsors." UCS never denies that its " sponsors" are not members according to the legal definition by which standing is granted to organizations.

Instead, UCS adopts a "more bang for the bucks" theory, contending that sponsors as contributors wield more control over its actions than would democratic self-government.

UCS appears unaware that voting control by the members of an association is required.2 A mere " stake" is not

1. In re Nuclear Engineering Co. (Sheffield, Illinois, Low-Level Radioactive Waste Disposal Site) , 7 N.R.C. 737, 739-40 (1978); In re Public Service Co. (Black Fox Station, Units 1 and 2), 5 N.R.C. 1143, 1144-45 (1977); In re Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), 4 N.R.C. 610, 612 (1976).
2. See Health Research Group v. Kennedy, 82 F.R.D. 21, 26 (D.D.C. 1979); see also Cutler v . Kennedy 473 F.Supp.

838, 840 (D.D.C. 1V77) .

10 C . F. R. Part 2 also sets forth the rules applicable to this adjudicatory hearing. UCS argues that, notw.th-standing the Nuclear Regulatory Commission's (Commissica's) order that these regulations "should control" this pro-ceeding, the standing regulations are nonethelcus inappli-cable to the hearing before this Board. UCS' Amended Petition at 3 ; see Memorandum and Order at 2 (Sept. 18, 1981) (September 18 Order) . The Commission fully intended that UCS be held to regulatory standards, as the Commission clearly enumerated the occasions when the Licensing Board may depart from these provisions, and further stated that

"[iln other respects, except as provided elsewhere in this Order, 10 CFR Part 2 will control." Id . Nowhere in the Commission's order is it stated that these regulations do not pertain to the standing of intervenors in this pro-

enough to grant standing to an organization to intervene in an adjudicatory proceeding, for "[slurely, something more is required and must be found ia the special relationship between an association and its members."1 UCS has no such special relationship and can have no such relationship, for it has no members.

C. UC5' OWN FINANCIAL INTEREST IN THE OUTCO'iE OF T9IS HEARING DOES NOT CONSTITUTE A L.CGALLY COGNIZABLE INJURY TO IT UCS has been denied standing to intervene in a pro-ceeding for failure to particularize its interests.2 UCS again fails to state its injury as is required by the law.3 As Judge John J. Sirica wrote:

[T]here is a material difference of both degree and substance between the control exercised by masses of contributors tend-ing to give more or less money to an organization depending on its responsive-ness to their interests . . ., on the one hand, and the control exercised by members of an organization as they regularly elect c eed i ng . UCS has, im effect, admitted in its confusion that it does not pass .he Commission's test for standing to intervene in this proceeding.

1. Health Research Group v. Kennedy, 82 F.R.D. at 25.

l 2. In re Virginia Electric & Powe r Co . , 9 N.R.C. at

! 404.

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3. UCS endeavors to equate a desire to intervene with a legal interest. See UCS' Amended Petition a t 6 n.3.

However, "something more is required." Health Research Group v. Kennedy, 82 F.R.D. at 25. Financial loss requires "something more" to substantiate UCS' stake i n 'a. i s proceeding, a factor UCS omits in its recitar.on.

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their governing body, on the other.

Health Research Group v. Kennedy, 82 F.R.D. at 27 (emphasis in original).

Only a special kind of eliteness allows a tiny control-ling group to contend that it best knows the proper course for an organization or a nation. UCS' purposes are broad and diverse. They do reflect concerns about matters of interest to the general public.1 However, the very breadth of UCS' good intentions dilutes whatever control is exer-cised by those who answer direct mail with contributions.

See id. at 28. Although UCS states that "[a]n organiza-tion's interest in pursuing the goals upon which is [ sic) was founded has been deemed sufficient to confer standing,"

UCS' Amended Petition at 5, the Supreme Court of the United

1. These goals are:
1. To conduct scientific and technical analysis and research in the public interest;
2. To disseminate the results of this research and analysis broadly to the general public;
3. To present its views and assist members of the public in presenting their views before administrative agencies and the courts.

Articles of Incorporation of Union of Concerned Scientists Fund, Inc. a t 1 (Sept. 19, 1973) (emphasis added); Articles of Amendment to the Articles of Incorporation of Union of Concerned Scientists Fund, Inc. (Nov. I S , 197 8 ) (emphasis added).

i States has accepted for review the very decision upon which UCS relies.1 Be fore the forum to which UCS should address its remarks, the Congress, UCS has admitted that its " sponsors" who, having nothing to do with the selection of its board of directors or staff, exert no control over their actions:

We have a management structure up in Cambridge, Mass., an executive director and an assistant director and a board of directors which meets occasionally to discuss major policy issues. The manage-ment together with the board decides unen we are going to make various moves, wnat cases we will cet into and what policy positions the organization will 'ake.12]

t UCS has failed to demonstrate the required assurance that its sponsors, and not its autocratic enclave, are before this Board . There is no legal basis to grant standing to a

" mere [] . . . well-informed point of view." Health Research Group v. Kennedy, 82 F.R.D. at 27.

While UCS has stated that it represents its ncn-exis-tent " members'" interest in personal safety, Joint Pe tition for Leave to Intervene by the Union of Concerned Scientists

1. See Coles v. Havens Re al ty Co rp. , C33 F.2d 384 (4th Cir. 1980), cert. granted, 101 S.Ct. 1972 (1981).
2. Industry's Response to the Accident at Three Mile Island: Oversight Hearings Before the Subcomm. on Energy and the Environment of the House Comm. on Interior and Insular Affairs, 96th Cong., 1st Sess. 56-57 (1979) (state-ment of Robert D. Pollard accompanied by Ellyn R. We iss )

(emphasis added). .

and the New York Public Interest Research Group at 2-3 (Nov.

6, 1981), UCS h s adt .ced that its concern is making money. It states that i. " stands to be directly and severely affecta' . its financial health and vitality" by the outcome of this proceeding. UCS' Amended Petition at 6 n.3. UCS' admission that it, as a matter of right is entitled to intervene so that it may reap pecuniary profits from this proceeding, is as bold as its budget: Sl.6 million.1 D. UCS' PARTICIPATION IS DESIGNED TO CONFUSE RATHER THAN CLARIFY, AND THUS ITS DISCRETIONARY INTERVENTION IN THIS PROCEEDING IS NOT IN THE PUALIC INTEREST UCS has not shown that its " participation may reason-ably be expected to assist in developing a sound record."2 Instead, it has shown that its participation may assist in developing a sound budget. Howeve r , its non-fundraising interests will be protected 3 even if UCS is not allowed to burden, broaden and delay this praceeding.4

l. Foundation for Public Affairs, Public Interest Plafiles at F-87 (1980).
2. In re Portland General Electric Co., 4 N.R.C. at 616; In re De troi t Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), 7 N.R.C. 381, 387, aff'd, 7 N.R.C. 473 (1978). See Authority's Answer at 33.
3. See Authority's Answer at 3-8, 15.
4. See In re De troit Ed ison Co. , 7 N.R.C. at 387-88.

Already, UCS has urged the Board to adopt a " general question" which runs contrary to the Commission's intent.1 The Commission gave careful thought to "the issues it wishe[d] to be addressed in the adjudication." September 18 Order at 1. It designated the logical order to be followed.

It mandated that "the proceeding [is to] remain') clearly

1. In its Contentions of Joint Intervenors Union of Concerned Scientists and New York Public Interest Research Group at 3 (Dec. 2, 1981) (Joint In te rve nors ' Contentions),

UCS seeks to revisa the Commission's orders of January 8, 1981, and September 18, 1981. The Commission formulated the question thusly:

Uhat risk may be posed by serious acci-dents at Indian Point 2 and 3, including accidencs not considered in the plants' design basis, pending and after any improvements described . . . below?

Memorandum and Order at 3 ( Sep t . 18, 1981) (September 18 Order). The Commission quotes its statement of interim policy on " Nuclear Power Plant Accident Considerations under the National Environmental Policy Act of 1969," 45 Fed. Reg.

40,101 (1980), which states that " attention shall be given both to the probability of occurrence of [ radiation) releases and to the environmental consequences of such releases." See September 18 Order at 3 n.5. UCS has revised the Commission's query, focusing only upon consequences:

What are the individual and societal con-sequences of an accident at Indian Point (including accidents which exceed the design basis of the Indian Point units) to the health, safety, and property of the population surrounding the Indian Point site?

Joint In terve nors ' Contentions at ; (emphasis deleted). The Commission clearly stated that the Board should focus clearly upon the questions asked by the Commission.

September 18 Order at 2.

focused on the issues set forth in [that] Ord e r . " Id. at

2. However, UCS even seeks to alter the logical sequence of the Commission's issues.

UCS has reorganized and restated the words of the Com-mission.1 Its effort to bypass this Board has been rebuffed by the United States Court of Appeals for the Second Circuit.' Ye t , it continues to elevate emergency planning issues on the Board's agenda. It seeks to do this before the Board has an opportunity to learn the f acts and nature of the emergency being planned for. UCS puts the emergency, consideration of the risk of a serious accident at Indian Point, last; the Commission put it in its first and second issues. Septemoer 18 Order at 3, 4; In re Consolidated Edison Co. (Indian Point Units 2 and 3), 13 N.R.C. 1, 7-8 (1981).

II. NEW YORK PUBLIC INTEREST RESEARCH GROUP, INC. (NYPIRG)

NYPIRG 3 has failed to respond to or to explain most of the defects in its original petition for leave to inter-

1. See Joint Intervenors' Contentions at 3, 33, 38, 46

( De c . 2, 1981).

2. Union of Concerned Scientists v. NRC, No . 81-4188 (2d Cir. De c . If, 1981) (petition for review dismissed).
3. Inasmuch as Parents Concerned About Indian Point (Parents) is but a branch or child of NYPIRG, all of tne allegations contained in this section apply with equal force to Parents.

vene.1 NYPIRG's Petition for Leave to Amend Portions of Joint Pe tition to In tervene (Dec. 2, 1981) (NYPIRG Amended Pe ti tio n ) . As such, the following allegations should be deemed admitted:2 (1) NYPIRG's steadfast opposition to the use of nuclear power as an energy source precludes it from participating in this proceeding; (2) NYPIRG does not have an interest specific to itself which might be adversely af fected if the proceeding has one outcome rather than another; (3) NYPIEG may not litigate the claims of its members because the interests it seeks to protect are not germane to the organization's purpose; (4) because NYPIRG's has not proffered evidence that it will contribute pos-itively to this proceeding, discretionary intervention is inappropriate; and (5) NYPIRG's scaremongering conduc t bars its participation in this proceeding.

III. UESTCHESTER PEOPLE'S ACTION COALITION, INC. (WESPAC)

A. WESPAC'S STEADF AST OPPOSITION TO THE US E OF NUCLEAR POWER AS AN ENERGY SOURCE PRECLUDES IT FROM PA RTIC I PATING IN THIS PR OC EE DING WESPAC admits that its ultimate goal is to terminate

1. Apparently, Joan Holt petitioned for leave to intervene in this proceeding prior to receiving proper authorization from the NYPIRG State Board. See NYPIRG Amended Petition: Attachment, Late Proposal, To NYPIRG State Bo a rd from tel Goldberg (Dec. 6, 1981).
2. See note 1, supra, at 8. ,

G

  • the use of nuclear power as a viable energy source in this country. In its Amended Petition, WESPAC States:

Yes, we would like to close down the industry--we believe it represents an unconscionable threat to t?.e health, safety, and financial well-being of people living in areas populated by nuclear plants and other components of the fuel cycle. Fu r the rmore , we would like to end the r.uclear weapons industry . . . and free the world's people from the Sword of Damocles hanging over our heads.

WESPAC's Pre-hearing Memorandum and Response to Staff and Utility Answers to Petitions for Leave to Intervene at 5

( De c . 1, 1981) (WESPAC Amended Petition) (emphasis added).

These statements reinforce the charge that WESPAC does not "look[] upon [this] proceeding as a forum for resolving technical questions in the fairest and most comprehensive manner, [bu t] views [i t] merely in terms of a podium for soapbox oratory."1 The Commissioners have mandated that the scope of the hearing be limited to issues relating specifically to Indian Point. September 18 Order at 2. Participation by WESPAC cannot help but burden, broaden, and delay the proceeding and thereby serve an interest other than that of the public.

1. In re Pennsylvania Power and Light Co. , 10 N.R.C.

at 602.

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B. WESPAC HAS NOT DEMONSTRATED THAT ITS MEMBERS H AVE AN

" INTEREST" IN THIS PROCEEDING WESPAC has chosea to reject this Board's order that it submit affidavits from the persons named in its petition for leave to intervene verifying their residence and their "in tere s t" in this proceeding.1 At the December 2, 1981 pcahearing conference, the Board directed all intervenors to cure defects in their petitions for leave to intervene. WESPAC's response is that it " object [s] to the tone and the precedent [of] putting pape rwork higher than subs tantive issues."2 WESPAC Amended Petition at 5.

The NRC requires a party seeking intervention to demon-strate an " interest" which may be affected by the proceed-ing. 10 C.F.R. S 2.714(a)(1). An organization may establish its own interest through the " interests" of its

1. See In re Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), 9 N.R.C. 377, 393 (1979); In re Detroit Ed i so n Co . (Enrico Fe rmi Atomic Power Plant, Unit 2), 8 N.R.C. 575, 583 (1978); In re Consumers Powe r Co . (Midland Plant, Units 1 and 2), 8 N.R.C. 275, 277 (1978).
2. WESPAC claims that it "would have no trouble obtaining affidavits from the six people listed in [its]

petition [for leave to intervene) ," WESPAC Amended Petition at 5, and that it "will provide such papers if the Board requires." Id. The Board has already so required. In its amended petition, WESPAC " urge [d] the Board to get past the o bs tacles . " Id . at 8. Yet, its continued refusal to pro-vide necessary documents threatens to cause further delay.

members.1 WESPAC, however, has so little interest it prefers to flout the instructions of this Board and refuses to file affidavits even though, in WESPAC's words, "it would have no trouble in obtaining a f f id av i ts . " WESPAC Amended Petition at 5.

C. WESPAC HAS NOT SHOWN THAT ITS OWN INTERESTS ARE LEGALLY COGNIZABLE WESPAC has demonstrated no interest specific to itself which might be adversely affected if the proceeding has one o utc ome rather than another.

The Supreme Court has stated that a mere " interest in a problem," no matter how longstanding the interest and no matter how qualified the organizatior. is in evaluating the problem, is not suf cient by itself to [ confer standing] .I'jI Even if WESPAC had asserted a generalized harm, it must show a " distinct and palpable injury" to itself.3 Although WESPAC argues that its " goals would be directly devastated by a serious accident at Indian Point,"

WESPAC Amended Petition at 6, it fails to explain how its

" goal" is cognizable under the Atomic Energy Act.

1. Se e , e .3,, , In re Detroit Ed ison Co . , 8 N.R.C. at 583.
2. Sierra Club v. Morton, 405 U.S. 727, 739 (1972).
3. Harth v. Seldin, 422 U.S. 490, 501 (1975); In re Ten Applications tor Low-Enriched Uranium Exports to Euratom Member Nations, 6 N.R.C. 525, 531 (1977).

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D. WESPAC MAY NOT LITIGATE THE CLAIMS OF ITS MEMBERS BECAUSE THE INTERESTS IT SEEKS TO PROTECT ARE NOT GERMANE TO THE ORGANIZATION'S PURPOSE WESPAC claims that its " broad range of concerns makes

[it] more, not less, qualified to participate in this proceeding." WESPAC Amended Petition at 6. The issue is not whether WESPAC is " qualified," but whether NESPAC is an appropriate agent to represent a diverse membership with varied interests. WESPAC confuses the reassn for the following rule: an organization must demonstrate that "the interests it seeks to protect are germane to [its]

purpose."1 Judge Sirica has explained the reason for that rule.

This requirement helps insure, not only that the party before the Court be a competent and ef fective advocate on the issues presented, but also that the members of the plaintif f organization have had an opportunity to influence their representatives on positions related to the particular member injury at issue.

Like the membership requirement . . . this too ultimately insures that it is the injured party, and not merely a well-intentioned advocate, who i least in effect, before the Court. I2p, at Moreover, it protects against "the possibility that decisions made by an [ organization's] leadership do

1. Hunt v. Wacnington State Apple Advertising Commission, 432 U.S. 333, 343 (1977).
2. Health Research Grcup v. Kennedy, 82 F.R.D. at 28 (emphasis in original and added) .

I

not . . . reflect the views of its constituency."1 UESPAC's purposes, wide-ranging and disparate, are

[tlo stimulate among the residents of Westchester County, New York, through an exchange of ideas and cooperation among diverse organizations, a fuller under-standing of the issues which offset the quality of life including, but not limited to, the environment, economic security, the preservation and expansion of individual r ig h ts , the equality of all

'pe opl e s , and the promotion of world peace, all for the betterment of Westgbpster County, America and the World.2 WESPAC also combats racism and sexism 3 and is concerned about United States imperialism, prison overcrowding, and anti-union corporations.4 Clearly, the stakes and interests of WESPAC's members "are too diverse and possibilities of conflict too oovious-to make [WESPAC] an appropriate vehicle to litigate the claims of its members" in this proceeding.5

1. Simone, Associated Standina and Due Process: The Need for an Adequate Representational Scrutiny, 61 B.U.L.Rev.

174, 179 (1981).

, 2. Certificate of Incorporation of Westchester

People 's Action Certificate , Inc. a t 3 (filed Sept. 22, 1975) (emphasis added).
3. Emergency Planning Around U.S. Nuclear Powerplants:

Nuclear Regulatory Commission Oversight Hearings Before a Subcomm. of the House Comm. on Government Operations, 96th Cong., 1st Sess. 340 (1979) (prepared statement of Charles Scheiner).

4. WESPAC Newsletter, Jan./Feb. 1981, at 7, 10, 12.
5. Associated General Contractors v. Otter Tail Power

23 -

E. BECAUSE WESPAC HAS NOT PROFPERED EVIDENCE THAT IT WILL CONTRIBUTE POSITIVELY TO THIS PROCEEDING, DISCRETIONARY INTERVENTION IS INAPPROPRIATE WESPAC has not met its burden of showing that the requirements for discretionary intervention have been met.

See Authority's Answer at 3 3. " Foremost among the f actors which are to be taken into account in deciding whether to allow participation in this proceeding as a discretionary matter is whether such participation would likely produce 'a valuable contribution . . . to [the] decision-making process.'"1 WESPAC indicates that it has filed " comments or letters with the NRC [at various times regarding Indian Point,]

testified before numerous NRC Boards, . . . met with the Commission and/or Staff several times," and has participated in cases before the New York State Public Service Commission concerning utility rates.2 WESPAC Amended Petition at 7.

However, WESPAC has f ailed to demonstrate that it has yielded information which could contribute to this pro-ceeding or that any of its staff members are " qualified by Co., 611 F .2d 6 84, 691 (8th Cir.19 79) .

1. See, e.g., In re Virginia Electric and Power Co.

(North Anna Power Station, Units 1 and 2), 4 N.R.C. 631, 633 (1976).

2. WESPAC's belief that its involvement with rate hearings will somehow contribute to this proceeding is further proof that its participation will unduly delay and contribute to confusion in this proceeding.

=

  • 24 -

either specialized education or pertinent experience to make a substantial contribution."1 IV. WEST BR ANCH CONSERVATION ASSOCIATION (WBCA)

A. WBCA HAS NOT SHOUN THAT ITS OWN INTERESTS ARE LEGALLY COGNIZ ABLE WBCA maintains that "[tio say that [it is] not provid-ing sufficient injury is a farce." Wes t Branch Conservation Association's Amendment to Intervenor Application of Nov. 2, at 2 ( De c . 2, 1981) (WBCA Amended Petition) . However, the Authority has argued that WBCA must show a " distinct and palpaple injury" to itself to be granted standing to inter-Vene.2 Instead, WBCA has focused its attention upon the particularization of its members' interests. WBCA Amended Petition at 1-2. Thus, WBCA has failed to demonstrate that a " cognizable interest (specific to itself] might be ad-versely affected if the proceeding has one outcome rather than another."3 In addition, because WBCA has not proffered evidence that it will contribute positively to this proceeding,

1. In re Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2), 5 N.R.C. 1418, 1422 (1977),
2. Warth v. Seldin, 4 22 U.S. at 501; In re Ten Applications for Low-Enriched Uranuim Exports to Euratom Member Nations, 6 N.R.C. at 531, see Authority's Answer at 24,

~

3. In re Nuclea. Engineering Co., 7 N.R.C. at 743.

p + -e , - - - - - - - - -, - - , , n , , - - - - , - +, y

discretionary intervention is inappropriate. _Se e Authority's Answer at 3 3-3 5.

V. GREATER NEW YORK COUNCIL ON ENERGY (GNYCF)

A. GNYC E ' S STEADFAST OPPOSITION TO THE USE OF NUCLEAR

?OWER A3 AN ENERGY SOURCE PRECLUDES IT FROM PA RTIC I-PATING IN THIS ADJU DIC ATORY PROCEEDING GNYCE claims that the eradication of nuclear power as an energy optior, is not its goal. Response of the Greater New York Coancil on Energy to NRC Staff and Licensee Answers to the GNYCE Petition for Leave to Intervene and to Pre-hearing Memoranda at 4 (Dec. 9, 1981) (GNYC E In te rve ntion Response). However, Dean Corren, director of GNYCE, admits that he finds flattering and is "proud" of the precise statements he made which admit that the demise of nuclear power is his goal. IdL. a t 4 -5.1 He should go directly to Congress for it is there that

1. GNYCE alleges, that "a s table energy f uture" doos not include nuclear technology. Anyone Can , Alternate Currents with the Greater New York Council on Energy, Fall 19 8 0, a t 7; see Authority's Answer at 13-14.

In a fitful tantrum, GNYCE terms the Authority's arguments " silly, irresponsible, and unworthy of any party to this proceeding;" " ludicrous;" " fatuous;" " wild and totally unsubstantiated; "without substance, merit or even l

consistancy [ sic];" "usually disingenuous, at best specious, l and without exception counter productive to the task of this proceeding;" and " ideological, unsupported, or frivolous in l nature." GNYCE's Intervention Pesponse at 5-7. The Authority has provided both legal and f actual bases for all the arguments it has raised which are pertinent t o GN YC E .

S_e et Au t ho r i ty 's An swe r a t 3 -6 ; 10 n.1; 13-18; 22-25; 31-32; 33-35.

L

the nation's elected legislative branch decided that nuclear power is to be a viable energy source.1 GNYCE argues that "[i]n the public interest jungle, natural selection tends to eliminate redundant organi-zations." GN YCE Intervention Response at 10. Simultane-ously, GNYCE argues that to bar an intervenor opposed to nuclear power from an administrative court would deny it f undame ntal first amendment rights. Id . at 4. GNYCE is free to seek from Congress and the people revision of the Atomic Energy Ac t. It may be entitled to engage in jungle warfare in a "public interest jungle," but not in an investigative-adjudicatory proceeding held pursuant to the laws of the United States. Those who participate here must "look[] upon [this] proceeding as a forum for resolving technical questions in the fairest and most comprehensive manner [and not] merely in terms of a podium for soapbox oratory."2 B. HAVING FAILED TO PROVE THAT IT HAS MEMBERS, GNYCE HiS NO STANDING TO APPEAR IN THIS PROCEEDING GNYCE maintains that its " filing of an amended petition

1. See Atomic Energy Act, 4 2 U.S . C. SS 2011, 2013(d);

see also Vermont Yankee Nuclear Power Corp. v. Natural Re sources De fense Council, In c . , 435 U.S. at 557-58 (Congress is the proper forum for raising basic policy questions about nuclear pcwer) .

2. In re Pennsylvania Power & Light Co. 10 N.R.C. at 602.

27 -

including affadavits Isicl" satisfies the legal requirements for standing in this proceeding. GNYC E In tervention Response at 6. The Affidavit of Andrew Rosenbloom Author-izing Representation by the Greater New York Council on Energ y ( De c . 10, 1981), merely shows that someone has granted GNYCE the authority to represent him in this pro-ceeding. See Authority's Answer a t 31-3 2. However, GNYCE 's Amended Petition does not show that this someone is a

" member" under any appropriate legal standard. See Au tho rity's ta swe r a t 15-22.

So long as the courts insist on some sort of substantial ncxus between the injured party and the organization plaintif f--a nexus normally provided by actual membership or its f unctional equiv-alent measured in terms of' control--it can reasonably be presumed that, in effect, it is the injured party who is himself seeking review. Absent this element of control, there is simply no assurance that the party seeking judicial review repre-sents the injured party, and g t merely a well informed point of view.

GNYCE has sub.nitted no proof that ladrew Rosenbloom, on whose behalf it seeks intervenor status has any electoral

1. Health Research Group v. Ke n ned y., 82 F.R.D. at 26-27 (emphasis in original and added); c: f . JG re Houston Lig h ting & Powe r Co . (South Texas Project, Units 1 and 2), 9 N.R.C. 439, 459 (1979) ("[T]here may be a difference between

[the pe titioner's] ' constituency' and its ' mem be rs . ' " ) . See also Hunt v. Washington State Apple Advertising Commission, 432 U.S. at 344.

control over GNYCE or its board of directors, if there be such a board or members.1 Additionally, Mr. Rosenbloom, in his af fidavit, fails to specify that his interests are set forth in GNYCE's petition for leave to intervene. Failure to attest to this requirenent is another ground upon which standing has been denied.2 C. BECAUSE GNYCE HAS NOT PROFFERED EVIDENCE THAT IT WILL CONTRIBUTE POSITIVELY TO THIS PR OC EE DING , DISCRETIONARY INTERVENTION IS INAPPROPRIATE GNYCE has not met its burden of showing that the requirements for discretionary intervention have been met.

See Authority's Answer at 33. Whether GNYCE is or is not the " fittest," it has not shown that its " participation may reasonably be expected to assist in developing a sound record."3 Besides, other means are available to protect GNYC E's interests , if any, and its intervention will burden, broaden, and delay this proceeding.4

1. See , e .g. , He al th Re search Group v. Kennedy, 82 F.R.D. at 26-27.
2. In re Consumers Power Co., 8 N.R.C. a t 277.
3. In re Portland General Electric Co., 4 N R.C. at 616; In re De troit Ed i son Co . , 7 N.R.C. at 387.
4. See id., 7 N.R.C. at 387, 388. GNYCE also dis-cusses the scaremongering conduct of others even though that issue has not yet been raised against it. The Authority will respond to the answers of those against whom the motion to exclude fear as an issue in this proceeding has been d i rec ted . The Authority reserves the right to then address

, _ , - , , . - . . _ _m.., ,,,y, m_ __,m_.-__,__,_m-._ -

..,,y y _ . - . - , _ . - , -

VI. NEW YORK CITY AUDUBON SOCIETY (NYC AUDUBON)

NYC Audubon has failed to respond to defects in its petition for leave to intervene. As such, the following allegations should be deemed admitted: (1) NYC Audubon does not have an interest specific to itself which might be adversely affected if the proceeding has one outcome rather than another; and (2) because NYC Audubon has not proffered evidence that it will contribute positively to this proceeding, discretionary intervention is inappropriate.

VII. ROCKLAND CITIZENS FOR SAFE ENERGY (RCSE)

A. RCSE HAS NOT DEMONSTRATED THAT THE PERSONS IT PURPORTS TO REPRESENT ARE ACTUNLLY MEMBERS RCSE has refused to establish that the named persons in its petition for leave to intervene are actually members of RCSE. dCSE has submitted affidavits from Helga Ancona and Wayne Browning in which they state that they are "mem-ber[s]." Af fidavit of Helga Ancona (Dec. 10, 1981);

Af fidavit of Wayne Browning ( Dec . 9, 1981). However, mere recitation of membership is insufficient. Rather, RCSE must l demonstrate that Ms. Ancona possesses the minimum e2 cunt of elc-ctoral ec-ntrol necessary to qualify her as a member.1 GNYCE's comments in regard thereto.

l 1. Hunt v. Washington State Apple Advertising Commission, 4 3 2 U. S . 333; Health Research Group v. Kennedy, l

l l

l

30 -

RC3E has additionally failed to respond to other defects in its original petition. As such, the following allegations ahould be deemed admitted: (1) RCSE does not have an interest specific to itself which might be affected if the proceeding has one outcome or another; and (2) because RCSE has not proffered evidence that it will contribute positively to this proceeding, discretionary intervention is inappropriate.

VIII. MEMBERS OF THE COUNCIL OF THE CITY OF NEW YORK (MEMBERS)

A. MEMBERS HAVE FAILED TO 03TAIN PROPER AUTHORIZATION No resolution or document submitted by the Members authorizes them to intervene on behalf of the Council of the City of New York.

B. THE MEMBERS' INTERESTS WILL BE ADEOUATELY REPRESENTED IN THIS HEARING BY OTHER PUBLIC AGENCIES SEEKING PARTICIPATION AS REPRESENTATIVES OF INTERESTED STATES The Members, in their Petition for Leave to Amend Petition for Intervention of New York City Councilmembers and to Add Eight Additional Sigr,atories (Dec. 10, 1981),

have not ref uted the Authority's showing that the Member's interests cannot properly be expressed by the New York State Assembly and its Special Committee on Nuclear Power Safety, and the Attarney General of the State of New York, see 82 F.R.D. 21.

Authority's Answer at 35-38 ; neither have the Members addressed the fact that the Authority has not opposed the intervention of the County of Rockland, Alfred B. Del Bell o, Executive of the County of Westchester, or the Village of Buchanan, see id. at 2, all of which have sought to participate in this proceeding as representatives of interested states or counties under 10 C.F.R. S 2.715(c).

The plants are located within Westchester County, within the Village of Buchanan, and 10 miles from the County o f Ro ckl and . Petition for Intervention of Alf red B. Del Bello at 1 (Nov. 6, 1981); Petition for Leave to Intervene of the County of Rockland at 2 (Nov. 6, 1981). The concerns of residents of these jurisdictions close to the plants are the same concecas the Members present. Thus, regarding personal and public health and safety, it is geogr7phically self-evident that these intervenors will adequately represent the interests of citizens who live farther away.

C. THE RULE ALLOWING INTERVENTION OF INTERESTED STATES WAS NOT INTENDED TO ALLOW THE INTRODUCTION OF DUPLIC ATIVE EVIDENCE AND TESTIM 01Q INTO ADJUDICATORY PROCEEDINGS The regulation which provides for the participation of representatives of interested states and agencies, as _

originally promulgated, provided only for the participation of state entities. 10 C.F.R. S 2.715(c) (1978). This rule was amended to include interested cities, counties, and agencies thereof as a matter of comity, because the

Commission dete rmined that the type of " cooperation" embodied by the rule "could be extended to other units of governnent." 4 3 Fe d . Reg. 17,798, 17,800 (1978) (emphasis added). However, the Commission also stated that it "is committed to developing a hearing process which will produce decisions in a timely f ashion." Id . at 17,798. The Commission has reiterated this goal in this proceeding by s tating that the Boa rd should make recommendations to it so that "the Commission may make its decision within a reasonable period of time."1 Memorandum and Order, 13 N.B.C. at 6.

In tervention by the Members, particularly when their interests are otherwise adequately represented, would necessarily further burden, broaden, and delay this proceeding.

1. In addition, the Board is empowered to restrict duplicative and repetitive evidence in this proceeding. 10 C.F.R. S 2.714(e). Congress has provided that,

[ slo far as the orderly conduct of public business permits, an interested person may appear before an agency or its responsible employees for the presentation, adjust-ment, or determination of an issue, request, or controversy in a proceeding, whether interlocutory, summary, or other-wise, or in connection with an agency function. With due regard for the conven-ience and necessity of the parties or their representatives and within a reason-able time, each agency shall proceed to conclude a matter presented to it, 5 U.S.C. S 555(o) (in pertinent part) (emphasis added).

IX. RICHARD L. BRODSKY To the extent Mr. Brodsky seeks to make a limited appearance, pursuant to 10 C.F.B. S 2.715(a), the Authority has no objection. Indeed, Mr. Brodsky's statement to this Board is consistent with a limited appearance,- not inter-vention:

It is not my intention to intervene actively, in the sense of conducting cross-examination or of fering witnesses, but to preserve the rights of the legist-lature [ sic] and the people I represent to a full and fair hearing in this proceed-ing.

Transcript of Proceeding at 94 (Dec. 2, 1981).

As to intervention, the Authority opposes Mr. Brodsky's petition upon the following grounds:

1) Mr. Brodsky has failed to provide proof that he qualifies as an interested state under 10 C.F.R. S 2.7'5(c);
2) Because Mr. Brodsky has not proffered evidence that he will contribute positively to this proceeding, dis-cretionary intervention is not approrpiate;
3) As a private litigant, Mr. Brodsky may not assert the rights of third parties under 10 C.F.R. 5 2.714 ; and
4) Because Mr. Brodsky opposes the existence of the Indian Point power plant regardless of safety, he should not be allowed to seek relief in this proceeding.
I A. - MR. BRODSKY HAS FAILED TO PROVIDE PROOF THAT HE QUALIFIES AS AN INTERESTED STATE 4

Mr. Brodsky claims that he " qualifies as an ' interested state' pursuant to 10 C.F.R. 2.715 as a ' representative' of [

an af fected County and af fected municipalities." Petition  !

for Leave to Intervene at 4 ( De c . 2, 1981)-(Brodsky Petition). However, Mr. Del Bello, the county executive,

. has intervened on behalf of the county. Additionally, Mr.

1 Brodsky has not submitted a resolution from the Westchester County Board of Legislators (County) indicating that the Board has decided to intervene in this proceeding nor has he ,

^

provided an af fidavit or any other document from the County stating that he is authorized to represent the County in i this matte r.

B. BECAUSE MR. BRODSKY HAS NOT PROFFERED EVIDENCE THAT HE WILL CONTRIBUTE POSITIVELY TO THIS PR OC EE DING, DISCRE-TIONARY INTERVENTION IS INAPPROPRIATE The contentions filed by Mr. Brodsky, who does not intend "to intervene actively," are but word-for-word copies of the contentions filed by the Union of Concerned Scientists and the New York'Public Interest Research Group, Inc.1 Presumably, if presented at all, they could better be

< presented by their authors.

Although the NRC has allowed " intervention as a matter I

l. Compare Contentions of Honorable Richard L. Brodsky

( De c . 2, 1981) (Brodsky Contentions) with Joint Intervenors' Co n te n tions . '

(

,-,-.n.,-,.,---,,-a.,,,-ymm,n,-,,.,,-.,.,-,.7,,,,,_,,e_v,,__,--,.n.-,nn,,.m, .~,an.,- . - . , - - . . . . . , ,

,,,,,,.---,wn,..

,. e , e o. .--,,,n..

of discretion to some petitioners who do not meet judicial standing tests,"1 the petitioner has the burden of showing that the requirements for discretionary intervention have been met.2 "[B] road, generalized averments will not suffice."3

" Foremost among the factors which are to be taken into account in deciding whether to allow participation in the proceeding as a discretionary matter is whether such partic-ipation would likely produce 'a valuable contribution . . .

to [the] deelsion-making process.'"4 Accordingly, a petitioner "must specify the extent to which it will involve itself . . . and the contribution which that involvement can reasonably be anticipated to make."5 Mr. Brodsky contends that there are five areas in which he seeks to intervene, Brodsky Petition at 3-4, but has

1. In re Portland General Electric Co., 4 N.R.C. at 616.
2. In re Nuclear Engineering Co. , 7 N.R.C. at 745; see In re Detroit Ed i s o n Co . , 7 N.R.C. at 387-88; In re PortlaEd General Electric Co., 4 N.R.C. a t 616-17.
3. In re Nuclear Engineering Co., 7 N.R.C. at 745.
4. In re Virginia Electric and Powe; Co., 4 N.R.C. at 633; In re Nuclear Ercineering Co. , 7 N.R.C. a t 7 4 3-4 4.
5. In re Nuclear Engineering Co. , 7 N.R.C. a t 74 5.

Intervenors admitted on a discretionary basis may be limited to participation in the issues they have "specified as of particular concern to them." In re Portland General Electric Co., 4 N. R .C . a t 617.

he seeks to intervene, Brodsky Petition at 3-4, but has stated that he does not intend to engage in " cross-examina-tion or offering witnesses." Transcript of Proceeding at 94 (Dec. 2, 19811. Thus, he does not even contend that his participation would constitute a valuable and significant contribution to this proceeding. He claims that he "has con' ducted extensive research on problems relating to emer:gency planning for the region surrounding the Indian Point reactors,' and "has long been active in monitoring the 4

hazards posed by the Indian Point reactors." Brodsky Petition at 2, 3. He does not demonstrate, however, that his research has yielded information that 'could contribute -

j to the proceeding.

C. AS A PRIVATE LITIGANT, MR. BRODSKY MAY NOT ASSERT THE RIGHTS OF THIRp PARTIES UNDER 10 C . F . R . S 2.714
Mr. Brodsky also ceGks leave to intervene, pursuant to 10 C.F.R. S 2.714, on behalf of two named persons residing in "Westchester Cou.nty and/or the 9th Legislative Dis-
trict." Brodsky Petition at 2.

t j While an organization may be granted standing to repre-i i

sent the interests of its members,1 an individual litigant i

1. The associational standing doctrine represents a very limited exception to the fundamental requirement of l

Article III of the Constitution that the complaining party

be among the injured. Sierra Club v. Morton, 405 U.S. at i

734-39.

i

\

7 normally may not assert the rights of tnird parties.1

"[T]he general rule is that 'a litigant may only assert his own constitutional rights or immunities.'" McGowan v.

Maryland, 36 6 U.S . 420, 429 (1961),

quoting United States v. Raines, 362 U.S.

17, 22 (1960). The same rule comes into play where . . . the right asserted is not of constitutional dimensions. Uarth v.

Seldin, supra, 4 22 U.S. [4 90] at 499-501

[1975]. It is true . . . that in some instances the courts have found that the constitutional or statutory provision in question implies an entitlement to advance a " claim to relie f [which] rests on the legal rights of third partis." Id. at 500-01. But [there isl nothing in the Atomic Energy Act or NEPA which would undergird a conclusion that either or both ofthosyptatutescontainsuchanimpli-cation Accordingly, Mr. Brodsky, as a private litigant, is precluded from intervening on behalf of the two named persons or any orher residents of Westchester County or the 9th Legislative District.3 D. B,ECAUSE MR. BRODSKY OPPOSES THE EXISTENCE OF THE INDIAN POINT POWER PLANT REGARDLESS OF SAFETY, HE SHOULD NOT BE ALLOWED TO SEEK RELIEF IN THIS PR OC EE D ING Mr. Brodsky does not seek a safe nuclear plant. He

1. In re Detroit Ed i so n Co . , 7 N . R . C . at 387; In re Tennessee Valley Authority, 5 N.R.C. at 1421.
2. In re Tennessee Valley Authority, 5 N.R.C. at 1421.
3. Even if Mr. Brodsky were allowed to intervene on behalf of the two named persons, he has not submitted affidavits from the named persons verifying that he is authorized to represent their interests in this proceeding.

d seeks no nuclear plant at all. Alm 11t all of Mr. Brod s br ' s contentions concern emergency planning. See Brodsky Content'ons. His public statements indicate that he believes Indian Point should be closed regardless of the status of emergency planning in the surrounding area.

Specifically, he has stated that any attempted evacuation would be disastrous and that the Commission's proposal requiring emergency evacuation plans is "'an exercise in political dishonesty.'"1 He has also urged the Commission not to "'further distort the political process by pretending that an evacuation plan can render acceptable an otherwise unsafe facility.'"2 These statements present a question as to whether he " locks upon [this] proceeding as a forum for resolving technical questions in the fairest and most comprehensive manner, or alternatively, whether [he] views this proceeding merely in terms of a podium for soapbox oratory."3 Mr. Brodsky should not be allowed to call upon the resources of this Board and the NRC to aid him in achieving

1. Divergent Views on Evacuation, N.Y. Times, Jan. 20, 19 8 0, a t 8, col. 1.
2. Id . (emphasis added).
3. In re Pennsylvania Power and Light Co., 10 N.R.C.

at 602.

]

1

his goals which are inconsistent with congressional policy,1 and the statutory constraints of the Commission. 46 Fed.

Reg. 39,573, 39,580 (1981).

The Supreme Court of the United States has affirmed that Congress' role is to establish policy regarding nuclear powe r . 2 Mr. Brodsky should petition Congress for this is an improper forum and his participation will burden, broaden, and delay the proceeding.

Conclusion Inasmuch as the defects therein have not been cured by amendment, the Power Authority of the State of New York requests that the Atomic Safety and Licensing Board deny the petitions for leave to intervene submitted by the Union of Concerned Scientists, the New York Public Interest Research Group, Inc. , Parents Concerned About Indian Point, Westchester People 's Action Coalition, 1%s t Branch Conserva-tion Association, Greater New York Council on Energy, New York City Audubon Society, Rockland Citizens for Saf e

1. See Atomic Energy Act, 42 U.S.C. SS 2011, 2013(d);

Doyle v. United States, 494 F.Supp. 84 2, 844 (D.D.C. 1980).

2. Ve rmont Yankee Nuclear Powe r Corp. v. Natural Re sources De fense Council, Inc., 435 U.S. at 557-58; see TVA
v. Hill, 437 U.S. at 194 ("it is . . . Ule exclusive province of the Congress . . . to formulate legislative policies and mandate programs and projects").

d O Energy, and the Council of the City of New York.

The Authority also requests this Board to deny Richard L. Brodsky's petition to intervene for the reasons stated herein.

% ctfully su" . ed,

~

~

Charles Morgan, Jr.

Pa ul F . Colarull i Joseph J. Levin, Jr.

1899 L Street, N.W.

Wa shingto n , D.C. 20036 (202) 466-7000 Thomas R. Frey General Counsel Charles M. Pratt 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 SHEA & GOULD 330 Itadison Avenue New Yo rk , "ew York 10017 POWER AUTHORITY OF THE STATE OF NEW YORK Licensee of Indian Point Unit 3 10 Columbus Circle New York, New York 10019 Dated: Lucembe r 21, 1981

_ _ ~

EXHIBIT A N.Y. Times May 16, 1980, S 1, at 30, col. 1 Fanning the Fears at Three Mile Island The Ciuon of Cancerned Sesenusta. usua;1y one of %ere tse panei disagrees 4 on how to get nd of the more responsible asunuclear gttups, has tsaued an the gas. It cites studies suggesting that perhapa 20 per.

trrascostabie report on Three Mile Is.ard. cent of the 200.000 peccie hnns around tae reactor suf.

The grous was assed dy Pennsylvarue's Governor, fer psycho 6og: cal stress, and urges that further steps RJchard ThornDurgh, to eiraluate a prtmaaed rescue of be uncertamen to allay this anaaety. Arnong the possh gas frorn tnsMie the plant because many nearbi ress. bikt.as; a small incanerator with a 230 foot stact to canta are concerned atuna their safety. The Governor carry the not gases up and away; or a plutsc<oated beneved that a forTual eveJuauon by nuclear enucs tuDe. held aloft Dy a tethered balloort, to carry the wouad ersha nce pubtle confidence in the process. 3asse even htther.

The Cancerned scentista quactly showed how Many peopee around Three Mile Island are deeply narve the Governor was. They concluood that tne vent. upsa But surely taas ts no way to ease their minds. If trig wcuad indeed be per. "'y safe. But thsy neverthe. anytfung, the sight of a ballocn or tall stack lootnang less &M the tdes unless major charges are made overbead might weil cause more trunety than tre re-to aHeviate ana:ety among those who fear, wrongly, lease of invtsatie gases. Aid where will such reporuct tant taey are in danger. Snach unwillice to accept end? The plans opers" irs will eventually have to get rid even an admittedly safe plan casts doubt on the socd of radscacuve wster - and may sorre day want to re.

fanh of the Concer ed Scentists. Worse, the report's start tae reactor. Would even sale plans for dair4 so be tatured reawned and f ar fetched prcporsls will pree- forbidden, tn .snay urJounded fears 7 ably beighten the very fears they are intended to ailay, The most pernacious result of the Concerned Scien-ibe venung of radioec*m arypton gas vas pro- usts' stand may be to furtber reduce pubite confidence pcaed so worters cadd re-ner the crippied reactor in the urtuty ard in Federal retuantors. Thev have and aaso to minstr.tze the rtat of a large, uncontreeled proposed a sound plan ard yet sa now left Lovas:ig hhe reense. The regulators tr, stat LEat the release of str.all vt!N.1s unwithr4 to taae that extre step for safety.

domes over many da ys wouad be safe; the c:aal:num ea. Gove:nor TMmeurg.i would be wise to ignore the ad.

~ mate to anyone wouad tar far less than from a chest vice of las paratista, and urge the feuclear R egulatory

% ray. nas is not disputed try the Concerned Scentists' Commission to allow tse ventir4 as p6anned. The Union penet,11 agrees that the krypta :nust be removed and of Cancerned Scenusts seems unwilitna to rtsa milenat.

that the retenses will cause rei harm to peysical besith. Ins its conantuency no m att er what the f acts.

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. , . EXHIBIT B Boston Globe May 7, 1979, at 1, col. 4 .

3-DTOtest  !

I- By Thomas Chphant Globe Washington Bureau P4 E1 WASillNGTON "I don't like it," said lien Sebastian, 9 '

not yet 10 years old, about nuclear power. "I want to live

  • r l On the makeshift stage in front of the US Capitol, his f ather, y h / W/.S - singer John Sebastian, smiled down at him And then one of the favorites of the 1960s launched into his famous seng -Welcome s Back."

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ikaching the punch line, he poin>J back at the building ti,at

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houses Congress and sang:"We tease you a lot bnause we've got 9~ ' you on the spn"

] f [ ), ] 'f In front of him, a aca .of protesting humanity rose and

-I roared. Washington once again was Demonstration City.

N/ s t (w/ O-

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Conjuring up memories and themes of a decade ago, oppo-nents of nuclear powee yesterday put on the biggest show cf marching strength seen here since the massive protests against the Indochina war.

In the morning,they gathered by the tens of thousands on the grassy Elhpse behind President Jimmy Carter's White llouse At noon, they marched down Pennsylvanh avenue, filling a sohd half of the street, from the Treasury Department to the Capitol, for more than an hour.

And all af ternoon they listened to music and spenhes extol-hng their new found strength in the wake of the worst nuclear accident m US history at the Thrr+ Mile Island power plant m central Pennsylvania Inevitably, there was a numbers game pisyed As ever, the local pohca were conservative, with a crowd estimate of M,000 As ever, the marth organizers gave a higher figure: 125.07) And,

'as ever, reporters used to crowds were more toward the middle, at about 100,000.

Numbers aside, the crganizers' achievement was consider.

able The announcement that the maten would be held w as made just a month ago, and setive planning - from scratch, with no money up frent - had taken only three weeks l ' Remember May the sixth '979," biologist Bwy Commoner

shouted mto the microphone."It will be remembered years from l now as the day the solar age began and the day the nuclear age i died " <

It was a day filled with vilification of the nuc! car mdustry,of the government, and of Carter and Energy Secretary James Schlesieger.

l "A nuclear plant license is nothing more or less than a mur-l der bcense," declared former Nuclear Regulatory Cummission t ngineer Robert Poll.rd."Il Carter won't help us,let's buy hir, a nuclear erecter set and send him home to Plams, Ga "

  • l love to be here, in the shadow of the Washington Monument," said Harvard's George Wald, a veteran of many such scenes. "That great shaf t la a symbol of what the govern.

ment does to its peuple."

For the President, there were numerous threats that this sud-denly natioial movement may try to do to him what the anti.

-=se pople helped do to Lyndon Johnson in 1901 1, 001. 4

-Putung a : nan hue sentesmge tn charge of energy policy,as Ise putting Dracula : charge of a blood hnk,-

said actress .!ane For.da, whese film -The China Syndrome" has nvaled the pchtical impact cl the Three Mile Island acc: dent in March. *1f he won't replace Schlesinge, he himself should be replaced in IE1" Her *.i=hmad lengume netmst Tom Hayden, was not unach hader:".!rmmy Carter has thrown away the best of what,he had - his h mesty.and dem and his reparation from prsvate mierest grtap?

The Pr= sint, who is in favor of contmW con-struction of nuclear plaats, did not accept an invitation to speak at the rally. Howeve, the affair did shghtly alter h:s 5::nday routine.

Deparung for church services from the White ha South Lawn, from which the gathermg dem-trators were clearly visible and anha, his motorcade sock a shortcut through the mansion's grounds so be could re-marn out of the crowd's sight.

-- Lee, entering neamy Bethesde Naval Hespital to visit an aihng friend, the President said of the mareb;-I ek it is a legit:= ate demons:racon. I t:nderstand the concern abcut nuriezr purer, and we're derng all n can to reassure ycp'c .. . that what m. clear rear' ors we do have are safe.-

As it : rned cut. pre:idennal ghties played a d: rect part m yesterday's fire-hc=r de=enstratica - m the pr.

son of Cah!crnia Gov.TA- n-d G. Derry) 3;cru, and in the ferro cf a mu2e from Scm.Idward M. h-,dy.

3rown led the crewd in cneers far one the raDy's nam p:als a r-e a cn per: uts for an.-im power plants, pending a lengthy revier of the emhaulsi indt:s-try.

Ten louder, he exhcried. -I want President Carts to bear you?

%e gern me's appearance drewl== luaos frc=

marchez not e-m~ red cf his 2: ster budget pnMas, and one not-very-subtle attack frem one of the main '

sy 1rns, (- r.

As Brown chatted with reporters, f ~-~== said to the crowi " Beware of the austeity moeges and the budget shrrniers,whethe they ecme frc:n Georg:a er Cahfornia.The politics cf austerity is i=e=npatihie with the pohtics of solar enegy -

However, there was a more positive resper*e to re-16, col. 3 t

enks frors Fonda, who introduced Bn>wn "When we disagree we get os his ba:k, h:i u hco we agree we stand by his side "

Kennedy who wculd hwe been a <urprise partwi pant, sent word be could not ro:ce because he was m Fknla with his atimg mother. liowever, he uked that :

=tatement frcm him be read tn the Armnnstrators. It was his stro:geststack yet on nudear power, al:horch he avoided dinct criticism cf the Ar%inistration, v, well as speedic commitments.

'"The weher safety lemag process je w working." the senatcr wrote."Ihe dream of melair pow-er has become a nightmare of nuclear Izar.If we cannot assure the people of this country thrt serious accidents can be prevented, then the era of.nucleu pow er is over in the United States ...

-A national russessment is under way in Congress and the nation to determine w$ ether any additional com-mitments to nucle 2r pewer should be ::2de. I am glad to be a part of that reassessment"

' ~ The h:ggest cheers 'of 'th i!!crnocn went to'Ealph Nader,a key udorscr of the de:mnettration,when be re.

em!1,d sorte eft-quoted words of ranAidate Carter in the lir 6 prunarier *11 I crer lie to yoc. if I mislead, than you come to =e and turn me out of tne %hiteliouse" "It was candidate Crter," Eder s.ud. who said re.

peatedly in J"6 that nucler pearr would be the last Teszt 2nd that energv c=nservatt:m, solar encrgy, and riesn cnal were fast resorts. It is PredA ent Carter who is Irw saying iull speed ahem. :nder faster li:enz:ng pro-eedces, to mee nudear pewer pVn

  • A few hundred cf the protesters who na:ne Lere yes-terday will re- n n today to do what their antiwar pnde-cesso s used to do-lobby Censresa.

Mest of their eff=ts will be ce=centrated on three proposair.2 ma atarium en new const:-#tien and ope:at-ing pe:mi:x; an e-d to limits on corpsrate liability for mAase ac:idents: and hgts12 tion g:ving states the right to ban 1, cit" n c! federal radisaelive waste z=aterials within their borders.

! At'the moment, the mertt=ium issue is the hottest One proposal ir.trodu d by Sen. Gecrge l'.cGevers l'

(D-S.D.) and Eep. Idward '2arkey (D Mm ) would z:. spend issurance cf new := .s:ructu:n and operating l

permits, pendmg a three-yer ree.ew of custmg re2- rr f safety delects by Cc gress' Offie cf Techno1cgy Assess-t ent.

A tougher measure, mt::duced by Rep. IIsmilton l

Tish (E.N.Y.) would suspr.d permits fer 12re years.

l pendi. g review not Just of ructor safety issues, but also l of waste dispesal ; roble =a, nuclear

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weapons prolifera.

tion and sabotage pctcntial.

16 col. I l

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