ML20039E117
| ML20039E117 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 12/31/1981 |
| From: | Brandenburg B, Morgan C CONSOLIDATED EDISON CO. OF NEW YORK, INC., MORGAN ASSOCIATES, POWER AUTHORITY OF THE STATE OF NEW YORK (NEW YORK |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-SP, NUDOCS 8201060545 | |
| Download: ML20039E117 (11) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION W ED g
b g 1932.
E THE ATOMIC SAFETY AND LICENSING BOARD m*g sgains Before Administrative Judges:
0:r e :r; : r
- 88 WE Louis J.
Carter, Chairman P"
1 I
~h, Frederick J.
Shon Dr. Oscar H.
Paris 9: g ste
)
In the Matter of
)
)
CONSOLIDATED EDISON COMPANY
)
OF NEW YORK, INC.
) Docket'Nos.
(Indian Point, Unit No. 2)
) 50-247 SP l
) 50-286 SP POWER AUTHORITY OF THE STATE
)
OF NEW YORK
)
(Indian Point, Unit No. 3)
) December 31, 1981
)
POWER AUTnORITY'S AND CONSOLIDATED EDISON'S REPLY TO PETITIONERS' OPPOSITION TO LICENSEES' MOTION FOR A STAY OF COMMISSION'S ORDERS OF JANUARY 8, 1981 AND SEPTEMBER 18, 1981 OR FOR DISMISSAL OF THIS PROCEEDING OR, IN THE ALTERNATIVE, CERTIFICATION TO THE COMMISSION Preface This reply responds to the memoranda of the Nuclear Regulatory Commission staff, the New York State Attorney General, and the potential intervenors concerning the licensees' motion to stay or dismiss this proceeding, or to certify certain issues to the Commission.
The Power Authority of the State of New York and the Consolidated Edison Company of New York, Inc. believe that this Atomic Safety and Licensing Board has jurisdiction of this motion.
Brent L. Brandenburg Charles Morgan, Jr.
Paul F. Colarulli Joseph J.
Levin, Jr.
CONSOLIDATED EDISON COMPANY OF NEW YORK, INC.
MORGAN ASSOCIATES, CHARTERED 4 Irving Place 1899 L Street, N.W.
New York, New York 10003 Washington, D.C.
20036 (212) 460-4600 (202) 466-7000 5g6
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k TABLE OF CONTENTS-I.
THIS BOARD MAY CONDUCT THIS ADJUDICATORY HEARING IN THE-MANNER IT DEEMS FIT,-AND CONSEQUENTLY MAY RULE ON THIS MOTION...........
1 II.
A DECISION ON THIS MOTION WOULD EXPEDITE THIS COMPLEX PROCEEDING AND THUS WOULD BE.
IN THE-PUBLIC INTEREST.........................
4 III.
THIS BOARD HAS-THE AUTHORITY TO' CERTIFY OR REFER THE LICENSEES' MOTION DIRECTLY TO THE COMMISSION WITH OR WITHOUT RULING ON THE ISSUES RAISED..................................
7 CONCLUSION....................................
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i The Consolidated Edison Company of'New York,.'Inc, and Ethe Power _ Authority of the State..of NewiYork, licensees-of-Indian Point Units 2 and 31respectively,'hereby submit 4
s'
.their' reply to-the Nuclear Regulatory Commission-i-
.(Commission) staff's, the New York State 1 Attorney General's,. and. the potential intervenors' memoranda; on 'the.
. question.of'whether this Atomic Safety;and Licensing Board
.(Board) has subject matter jurisdiction to stay or: dismiss?
I-this proceeding,Jor, in the alternative, to. certify 1the-issues 1to the Commission.
Licensees maintain that this
' Board has the inherent power to.take these actionsLin regard to the issues raised. in the licensees' motion for a i '
stay.
I.
THIS BOARD MAY CONDUCT THIS ADJUDICATORY HEARING IN' THE MANNER IT DEEMS FIT, AND-CONSEQUENTLY MAY RULE ON
-THIS MOTION This Board derives-its powers from-the' Commission and its regulations.1 It may " handle all aspects of licensing i
proceedings which would otherwise be entrusted to the commission itself."2 Because there is no question but that the Commission has the authority to stay or dismiss this l
1.
10 C.F.R. S 2.721-(1981).
I~
t 2.
In re Kansas Gas & Electric Co. (Wolf Creek Nuclear I
Generating Station, Unit 1), 3 N.R.C.
293, 301 n.ll (1976),
j aff'd,;5'N.R.C. l'(1977).
I
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'.4
__________.________.______________.___ms.;._.__._____.____________.___.______._._.________.__________m________
m
- Lproceeding, see 5 U.S.C.
S 555(b); 10 C.F.R.
S-2.788, the Board has jurisdiction.to do the same.1 Moreover, this Board "has all powers necessary" to
" conduct a fair and impartial hearing according to law,"
including the power to "[d]ispose of procedural requests or similar matters."2 Licensing boards are not mere evidence-gathering bodies.. They have "[r] esponsibility for the appraisal ab-initio of the record."3 Thus, the statements-4 of the potential intervenors that the " Licensees' 1.
This Board may well have plenary jurisdi'ction in this proceeding,'i.e., this Board may possess the unquali-fled power to dec'Tde all issues which arise in this hearing.
See In re Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), 5 N.R.C.
727, 730 (1977); see also In re Kansas Gas & Electric Co., 3 N.R.C.
at 299:
The procedures of administrative agencies are supposed'to be more, rather than less, flexible than those of the courts.
That being so, we [ agencies) should be even more reluctant than the courts to let our decisions be governed by. labels, particu-larly when the use of those labels does not aid our understanding of the questions brought before us, i
2.
10 C.F.R.
S 2.718 & (f).
This Board has "the duties and may exercise the powers of a presiding officer as granted by" this regulation.
Id. S 2.721(d).
f 3.
In re Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 2), 5 A.E.C. 319, 322 (1972); accord, s
2 United States Nuclear Regulatory Commission Staff Practice and Procedure Digest S III.l.1 (Supp. 1,'Feb. 1980) (NUREG 0386) -(hereinaf ter Commission Staf f Practice and Procedure I
Digest).
4.
Several petitioners for intervention opposed
- Motion.
. asks the Board to take action ' for which it has no authority,"1 and of the Attorney General of the State of New York that "the Board does not have the power to order a stay,"2 are clearly inaccurate.3 The Commission staff writes that "[a]ny requests to
.the proceeding should be filed with the stay.
initiating body, the Commission."4 However, it has'been
" repeatedly stressed" that the proper practice is to seek'a licensees' motion for a stay.
They are the Union of Concerned Scientists,.New York Public Interest Research Group, Inc., the Greater New York Council on Energy, Parents.
Concerned About Indian Point, Westchester People's Action Coalition, Inc., Friends of the Earth, Inc., West Branch Conservation Association, Rockland Citizens for Safe Energy, and New York City Audubon Society.
Response of Union of Concerned Scientists and New York Public Interest Research Group to Licensees' Motion for a Stay, Dismissal, or Certification at 1 n.*
( Dec. 18, 1981) (UCS-NYPIRG Response).
a 1.
Id. at 3.
2.
Memorandum of Robert Abrams, Attorney General of the State of New York, in Opposition to Licensees' Motion for a Stay of Commission's Orders of January 8, 1981 and September 18, 1981 or for Dismissal of this Proceeding at 4-5 (Dec. 17, 1981) (Abrams' Opposition to a Stay).
(
3.
The potential intervenors also claim that the l
licensees have asked the Board "to contradict the expressed intentions of the Commission."
UCS-NYPIRG Response at 3.
l-However, the Commission has noted that this Board has all' l
powers granted it in 10 C.F.R. Part 2, unless stated otherwise.
Memorandum and Order at 2 (Sept. 18, 1981) l (September 18 Order).
l 4.
NRC Staff Response Concerning the Board's Authority to Stay or Dismiss this Proceeding and Opposition to l
Certification of Licensees' Stay Request at 7 (Dec. 18, 1981) (Commission Staff's Response).
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stay of a proceeding from the appointed board.1
- Moreover, the Commission's regulations require all motions te be presented to a licensing board when a proceeding is pending before the Board, 10 C.F.R.
S 2.730(a), and the Board must
" hear and decide all issues that come before [it}."
Id.
Part 2, App. B(1).
[T]he Supreme Court has " recognized in more than a few decisions, and Congress has recognized in more than a-few statutes, that orderly procedure and good administration require that objections to the proceedings of an administrative agency be made while it has the opportun-ity for correction in order-to range issues reviewable by the courts."
A2 II.
A DECISION ON THIS MOTION WOULD EXPEDITE THIS COMPLEX PROCEEDING AND THUS WOULD BE IN THE PUBLIC INTEREST The Commission has stated that the Board should make its recommendations to the Commission by September 18,.
1.
In re Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Unit 2), 5 N.R.C.
1185, 1186 n.2 (1977);
L accord, 2 Commission Staff Practice and Procedure Digest S V.2.1, at.59 ( Sep t'.
1978) ("As a general rule, motions for a stay should be directed to the Licensing Board in the first instance," else the motion may be. denied on appeal).
2.
In re Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2),-8 N.R.C.
348 U.S.
492, 500.(1955); accord, United States v.
L.
A.
Tucker Truck Lines, Inc., '3 4 4 U. S.
33, 37 (1952); Indiana & Michigan Electric 133. v. FPC, 502 F.2d 336, 340 (D.C.Cir. 1974), cert. denied, 420 U.S.
946 (1975);
Glaziers' Local 558 v. NLRB, 408 F.2d 197, 203 (D.C.Cir.
1969); Gearhart & Otis, Inc. v. SEC, 348 F.2d 798, 801~n.8 (D.C.Cir. 1965).
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1982.1 The Board should-therefore take all reasonable measures to expedite this complex proceeding.2 As UCS' counsel stated:
I think probably it can best be certi-fled-quickly to the Commission that if they want.to contradict their previous orders they can do'so.
I doubt they will.
But actually, the place this really.
belongs, given.that it is some=very creative legal. theorizing, quite different from anything we have.seen at.
NYU or other law schools I have been.
associated with, it actually belongs in federal court as soon as possible to let the federal judiciary decide if it wants to remake Constitutional and administra-tive law in accordance with what is proposed here.
Therefore, I would propose that it be sent up there as expeditiously as possible so they can deal with it accordingly.
Transcript of Proceeding at 78-791(Dec. 2, 1981) (December 2 Proceeding).
This Board has the right to use "all powers necessary" in order that it may "take appropriate action to avoid delay."3 Motions requesting a stay of the proceeding have been referred to licensing boards to facilitate speedy 4
'l 1.
September 18 Order at 5.
2.
See Abrams' Opposition to a Stay at 2.
3.
In re Kansas Gas & Electric Co..(Wolf Creek Nuclear Generating Station, Unit 1), 5 N.R.C.
1, 5'(1977);.10 C.F.R.
S 2.718.
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6-rulings.
In a post-construction permit proceeding,1.the.
movants were told to present' their. motion for 'a stay to the licensing boardJrather than the Atomic Safety and_ Licensing Appeal Board, for "a serious request for a stay requires prompt-determination."2 Another appeal board referred a-motion for a stay to the licensing board,_"[i]n the-interest of the avoidance of unnecessary delay."3 A determination on this motion will likewise. avoid undue delay and will-further the Commission's desire that.the issues be quickly
^
resolved.4 The' argument of the Commission staff that the Board ~ lacks the authority to grant licensees' motion because it would " interrupt the proceeding"5 is not valid.- If-certified or referred, the issues will be resolved.while this proceeding continues.
Thus, no delay will occur in this proceeding.
1.
In re Consumers _ Power Co. (Midland Plant, Units 1 and 2), 5 N.R.C. 772 (1977).
2.
Id. at 786'(footnote omitted).
3.
In re Toledo Edison Co. (Davis-Besse Nuclear Power-Station, Units 1, 2 and 3), 5 N.R.C.
35, 36'(1977)..
4.
This Board, in deciding that the proceeding should be dismissed or stayed, may make that recommendation ' to the-commission.
Because the parties will brief their views of the' issues in this proceeding in accordance with-the Board's request at the special pre-hearing conference, December 2 Proceeding at 91, a record on these issues will be= developed pursuant to the-Commission's order.
See Memorandum'and Order, 13 N.R.C.
1, 5-6 (Jan.
8, 1981) (January 8 Order).
This course of action would be the most expedient.
5.
Commission Staff's Response at 5.
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III.
THIS BOARD-HAS THE AUiHORITY TO CERTIFY OR REFER THE.
LICENSEES' MOTION DIRECTLY TO THE COMMISSIOR WITH OR WITHOUT RULING ON.THE ISSUES RAISED The Commission.' staff and,the potential in_tervenors w-agree that this Board has the a'uthority to certify to the -'
s Commission the issues raised.1
[
Interlocutory -review has been granted as to a wide-.
variety of issues, including:
a licensing board's suspen-a sion of a proceeding,2 the' subpoena of ACRS'consulta'ats,3 '
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the misinterpretation of an, appeal board'$andate,'
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appropriateness of setting n deadline for the Commission f
staff's preparation of a final environmental statement and the consideration of " Class 9 accidents,"5 the sequestration.'
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1.
Commission Staff's Response at 8-9; UCS-NYPIRG Response at 5; see 10 C.F.R. S 2.,718 ( i ) ; 'id. Par t 2, App. ' A.
S V(f)(4); 46 Fed. Reg. 28,535 (l'981); In re Public Service Co. of New Hampsh' ire (Seabrook Station, Units 1 and 2), 1 N.R.C.
478, 482 (1975)';'In~ re ConCumers Power Co. (Midland Plant, Units 1 and 2),-6 A:E:C. 816, 818 n.6-(1973).
2.
In re Exxon Nucle ~ar Co. (Nuclear Fuel Recovery and Recycling. Center), 6 N.R.C.: 199, 203 (1977),: review denied (unpublished order Sept. 7 7 1977..).-
3.
In re Pacific-G s,3 Electric Co'. (Diablo Cadyon Nuclear Power Plant, Units-1.and-2),;9 N.R.C.
42, 45 (1979).
i 4.
In re Consumers Power do. (Midland Plant,' Units 1 and 2), 7 N.R.C. 465, 468,69,-(191e).',
r*c i
In re Of fshore Pcwer Syritiemy, (Floating Nuclear (
5.
l Power Plants), 8 N.R.C. 194b l96,~on. reconsideration, 8 N.R.C. 323, 325 (1978), ' a f f ' d, 10 IT.~R.-C. c2 5 L 2 61 (1979)'.
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of witnesses,1 the denial of permission ~ to begin "of fsite"
. construction. activity,2 the disclosure of contract terms claimed to be proprietary,3 the refusal to issue an operating. license until antitrust review was completed,4 the' disqualification of~ attorneys,4 and the disclosure of pro-visions of a security plan.5
-The UCS-NYPIRG Response argues that the licensees are seeking to relitigate issues already decided by the Commission.6 The Commission, however, knew what issues were previously before~it.
The' Commission wrote:
The basis for the [ licensees'] petition-(for reconsideration] is the Tack Force's conclusions that Indian Point poses the same overall societal risk and less of an individual ~ risk than a typical reactor on a typical site.
The
~1..
In re Consumers Power Co. (Midland Plant, Units 1 and 2), 5 N.R.C.
37, 38, 5 N.R.C.
415, 416, and 5 N.R.C.
565, 567-68 (1977).
2.
In re Kansas Gas & Electric Co., 3 N.R.C. at 297.
'3.
In re Kansas Gas &-Electric Co. (Wolf Creek Nuclear Generating Station, Unit 1), 3 N.R.C.
408, 411-12 (1976).
4.
In re Toledo Edison Co. (Davis-Besse Nuclear Power Station, Unit 1), 3 N.R.C.
331, 334'(1976).
4.
In re Toledo Edison Co. (Davis-Besse Nuclear Power Station, Units 1, 2 and 3), 3 N.R.C.
785, 791 (1976).
5.
In re Pacific Gas. Electric Co. (Diablo Canyon
~
Nuclear Power Plant, Units 1 and 2), Nos. 50-275, 50-323-(unpublished order Nov.
- 7.. 1976).
6.
UCS-NYPIRG Response at 5; see Commission Staff's Response at 10.
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'licenseehkico contend that the
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population dehsiey is not materially i
_ dissimilar from numerous other sig not '
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subject to adjudicaf.ory hearings.
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Thelicenseesnow?seekqeliefbaseduponmattersnot
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" addressed by the Commission.
The licensees now argue that the commencement of.an anjudicatory--investigatory
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proceeding prior t.o the'~estahlishment of generic standards C
'J constitutes a denial oftpr'dcedural due process; that principles of res judicdta a"nd-collateral estoppel bar the relitigation of certain idsnes; that the Commission lacks a
[
s, investigatory-jurisdictionalbasisto}conductahybrid, 3
adjudicatoryproceeding;and[thatpotentialCommission action resulting from these proceedings could infringe upon fourteenth amendment pbperty g'uarantees.
Here, the 4
l central questions are;cbnstitutional.
' 3s Whereas certification involves the submission of.these i
e i x issues to the Commission lwithout a ruling having been made e -
by the Board,jreferrall involves the submission of these 4
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., issues after the Board has ruled on them.2 If, in order to AN..
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determine whetFMr the Board does or does not have x
' jurisdiction over these issues, the Board must certify or s (
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1 January 8 Order, 13 N.R.C. at 5; see Licensees' a -
Motion for Reconsideration of that Portion of the
'.f
_ Commission's Order _of May 30, 1980 which Directs Adjudica-
~'
tory Hearings (July 25, 1980).
os 2.
In te Consumers Power Co., 6 A.E.C. at 818 n.6.
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refer the jurisdictional question to the Commission, then the Board should do so.
Regardless of the answer to that question, both the Commission staff and the potential intervenors believe the Board has the. authority to certify issues under 10 C.F.R. S 2.718(i).
See note 1, supra at 7.
" [T] he. purpose of. the referral [is] to obtain a determination of the correctness of [the] ruling" in light of the substantial nature of the issues involved.1 As a recent Commission policy statement recommends, "[i] f a significant leaal or policy question is presented on which Commission guidance is needed, a board should promptly refer or certify the matter to.
the Commission."2 And _
the time is now.3
-Conclusion The licensees request that the Atomic Safety and Licensing Board grant the licensees' motion for a stay or f
dismissal of the Commission's orders of January 8, 1981 and r
September 18, 1981, or, in the alternative, certify these l
issues to the Commission.
1 l
1.
Id.
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2.
46 Fed. Reg. 28,535 (1981) (emphasis added).
1 3.
See In re Houston Lighting & Power Co. (South Texas Project, Units 1 and 2), 13 N.ETC! 469, 472-73 (1981); In re Kansas Gas & Electric Co., 3 N.R.C.
at 413.
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',' Respectfully submitted, 6L4 Brent L.'-Erandenbuggr/" '-
' Charles Morganf Jr.
Paul F. Colarull CONSOLIDATED EDISON COMPANY Joseph J.
Levin, Jr OF NEW YORK, INC.
1899 L Street, N.
Licensee of Indian Point Washington, D.C.
20036 Unit 2 (202) 466-7000 4 Irving Place-New York, New York 10003 Thomas R.
Frey (212) 460-4600 General Counsel Charles M. Pratt Assistant General Counsel 10 Columbus Circle
)
)
(212) 397-6200 MORGAN ASSOCIATES, CHARTERED 1899 L Street, N.W.
Washington, D.C.
20036-SHEA & GOULD 330 Madison Avenue New York,.New York 10017 POWER AUTHORITY OF THE STATE OF NEW YORK Licensee of Indian Point Unit 3 10 Columbus Circle New York, New York 10019 Dated:
December 31, 1981
.