ML20039E140

Motion for Leave to File Reply to Potential Intervenors' Responses to PASNY Motion to Exclude Fear as Issue in Proceeding.Petitioners Failed to Address Issues Presented & Mischaracterized Facts

ML20039E140
Person / Time
Site:	Indian Point
Issue date:	12/31/1981
From:	Morgan C MORGAN ASSOCIATES, POWER AUTHORITY OF THE STATE OF NEW YORK (NEW YORK
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20039E141	List: ML20039E140 ML20039E149
References
ISSUANCES-SP, NUDOCS 8201060574
Download: ML20039E140 (9)

Text

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5 C30XETED UWC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 82 JE -4 A11:15 ATOMIC SAFETY AND LICENSING BOARD g, 7.;:~--

Before Administrative Judges: E' 9 Louis J. Carter, Chairman 7 \

Frederick J. Shon d Dr. Oscar H. Paris @ IIECEIYUO

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!2' M.N 5 1982> I

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In the Matter of ) G-M "E* "

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CONSOLIDATED EDISON COMPANY ) Docke t Nos . /g OF NEW YORK, INC. ) 50-247 SP (Indian Point, Unit No. 2) ) 50-286 SP

)

POWER AUTHORITY OF THE STATE )

OF NEW YORK )

(Indian Point, Unit No. 3) ) December 31, 1981

)

POWER AUTHORITY'S MOTION FOR LEAVE TO FILE THE FOLLOWING REPLY TO POTENTIAL INTERVENORS' RESPONSES TO POWER AUTHORITY'S MOTION TO EXCLUDE FEAR AS AN ISSUE IN THIS PROCEEDING1 The potential intervenors conducted a scaremongering campaign to generate evidence of psychological stress, and now desire to use that " evidence" in support of their ef forts to shut down the plant.

Rather than address the issues presented, the Union of Concerned Scientists (UCS), New York Public Interest Research Group, Inc. (NYPIRG), and Parents Concerned About Indian Point (Parents) again respond with an air of injured

1. See 10 C.F.R. S 2.730(c) (1981).

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innocence, characterizing facts as "ad hominem attacks" and

" insult [s)," and calling the prompt raising of the issue

" premature," " dilatory actions and arguments."1 The Greater New York Council on Energy (GNYCE), an inhabitant of what it describes as the "public-interest jungle,"2 even accuses the Power Authority of the State of New York (Authority) of harboring unspecified "supersti-tions."3 However, the following is neither superstition nor supposition: the Authority did not create the circumstances to which it objects; it will not, as the potential intervenors apparently have come to expect, sit silently while they deal from the deck they have stacked.

1. Union of Concerned Scientists, New York Public Interest Research Group, and Parents Concerned About Indian Point Response to PASNY's Motion to Exclude Fear of Nuclear Power as an Issue in this Proceeding at 2, 5 ( De c . 17, 1981)

(Joint Response) .

2. Response of the Greater New York Council on Energy to NRC Staf f and Licensee Ansrers to the GNYCE Petition for Leave to Intervene and to Prehearing Memoranda at 10 (Dec.

9, 1981) (GNYCE Response).

3. Id . at 15. GNYCE even attacks Robert DuPont, M.D.,

President' of the Phobia Society of America, as " unqualified t3 determine what is and what is not a phobic fear with rigard to nuclear power." Id. Perhaps a closer reading of Dr. DuPont's affidavit woulTpermit GNYCE to make a more qualified j udgment. Affidavit of Dr. Robert L. DuPont in Support of the Power Authority's Motion to Exclude Fear as an Issue in this Proceeding V 4 ( De c . 1, 1981).

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I. NOW IS THE APPROPRIATE TIME FOR THIS BOARD TO EXCLUDE THE ISSUE OF PSYCHOLOGICAL STRESS FROM THIS PROCEEDING UCS, NYPIRG, and Parents claim that the issues raised in the Authority's motion are not " ripe for current adjudi-cation," and are " grossly premature."1 .But even before-contentions were filed, the potential intervenors had raised a phantasm of fear in a clear.and identifiable manner.2 Parents, a creature of NYPIRG, sought to intervene with respect to "[w]hether the psychological, emotional, and physical health and safety of children are adequately protected aga' inst the dangers of" the Indian Point units.3 As a basis for its Contention IV, Parents claimed that

"[p]arents, teachers, doctors, and other caretakers of 1 1. See Joint Response at 1, 2; NRC Staf f Response to Power Authority's Motion to Exclude Fear of Nuclear Power as an Issue to this Proceeding at 2 (Dec. 22, 1981) ("the Staff views the instant request as premature").

2. UCS has in the past, according to the New York Times, exacerbated fears of nuclear power.

[UCS'] unwillingness to accept even an admittedly safe [ venting] 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.

Fanning the Fears at Three Mile Island, N.Y. Times, May 16, 1980, S 1, a t 30, col. 1 (editorial) (emphasis added).

3. Petition for Leave to Intervene at 2 (Nov. 5, 1981)

(emphasis added).

.s children feel anxiety because of the continued operation of Indian' Point."1 The potential intervenors' vague statement'that they

-have not " indicated" that they will submit the results of their " survey" as evidence begs the question.2 It also provides an answer, for if the data elicited from the

" survey"3 is not to be used as evidence, then it becomes certain that these groups with "an interest in the public well-being"4 intended that the survey do what it had to

1. Contentions of Parents Concerned About Indian Point at 6 ( Dec . 2, 1981) (emphasis added) (Parents' Contentions).

2.- Joint Response at _2.

3. Because the NYPIRG survey " fails utterly to meet any of the well-established rules governing survey ques-tionnaires," Affidavit of Dr. David Valinsky 1 8 (Attached as Exhibit A), .the results of the survey would be inadmiss-ible under existing federal case law. See Pittsburgh Press Club v. United States, 579 F.2d 751, 758-59 (3d Cir. 1978);

Power Authority's Memorandum- of Law in Support of Motion to Exclude Fear as an Issue in this Proceeding at 5-6 ( Dec . 1, 1981).

4. GNYCE Response at 10. GNYCE admits that "[f] ear should not, under the Atomic Energy Act, determine the NRC's decision as to whether to license a reactor," and then attempts to distinguish this proceeding from a licensing proceeding. Id . a t 13. The Authority agrees that this is not a licensing proceeding because the Nuclear Regulatory Commisson (Commission) has already determined that the ladian Point site is safe and has granted licenses to oper-ate plants there. See In re Consolidated Edison Co. (Indian Point, Unit 2), 3 A.E.C. 144, 151, aff'd, 3 A.E.C. 162 (1966); 'In re Consolidated Edison Co. (Indian Point, Unit 3), 4 A.E.C. 246, 262, aff'd, 4 A.E.C. 392 (1969); In re

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Consolidated Edison Co. (Indian Point, Units 1, 2, and 3),

6 N.R.C. 547, 624 (1977), 10 N R.C. 410 (1979), review denied, 2 CCH N.R.R. 1 30,536 (1980). But it is a proceeding

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do--exacerbate' fear.

Ripeness- is determined by common sense. Diamond

]-

Shamrock Corp. v. Costle,-580 F.2d 670, 675-(D.C.Cir.:1978);

Continental-Air Lines, Inc. v'. CAB, ~ 5 22 F.2d 107, :124

( D.C.Cir. 1975) - (en ' banc) . And ' common sense dictates that I

this Atomic Safety and~-Licensing Board (Board) exclude the-i -

-issue of fear now, before the resources:and energies of this Board and'of the'participar1s in this proceeding are expended in creating and responding to it. So,1regardless F of whether the motion is considered apart from or as a response to conten'tions, the timing is-the same and the ,

issue must be resolved.

d- II. POTENTIAL INTERVENORS SHOULD BE BARRED FROM RAISING THE ISSUE OF FEAR WHICH THEY HAVE LABORED TO AROUSE Nowhere' in any response do. potential intervenors deny

! that they have engaged in the very conduct l which the

!' -related to the units' licenses, and is not exempted from the l provisions of the Commission's enabling statute, as they have been' interpreted. See,jt.j[., Nader v. NRC, 513 F.2d-l 104 5, 10 51 ( D. C . Cir . 1975 ) ("an administrative agency is i

bound . . . by the precepts of its governing statute");

United Steclworkers of America v. NLRB, 390 F.2d 846, 851 (D.C.Cir. 1967) (" Administrative agencies will be required to follow Congressional mandate, whether explicit or-o ascertainable as inherent in underlying policy."),. cert.

denied, 391 U.S. 904 (1968).

, 1. See Fed . R. Civ . P. 8(d) (" Averments [ legal and

' factual] in a pleading to which a responsive pleading is required . . . are admitted when not denied in the re'sponsive pleading."). Accord, Legal ' Aid Society of

( Alameda ' County v. Brennan, 608 F.2d 1319, 1334 (9th Cir.

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, Authority has charged.1 The Commission has' determined that the existence of psychological stress in the community should not prevent the operation of a safe plant.2 Rather, the most appropriate way for the Commission to take account of fears is

. . . to assure that [a] technical decision is sound and . . . to make sure that the public understands, through accurate and comprehensible information, fully disseminated, the basis for the Commission's plant can operate determinatio safely. 3fhatthe 1979), cert. denied , 447 U.S. 921 (1980); Weitnauer Trading Co. v. Annis, 516 F.2d 878, 880-81 (2d_Cir. 1975); Peoples Natural Gas Co. v. FPC, 127 F.2d 153, 156-57 (D.C. Cir.),

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

1. A "scaremonger" is "[a] person who spreads-frightening rumors; an alarmist." American Heritage Dictionary 1159 (1978).

2. In re Me tropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), 12 N.R.C. 607, 612 (1980)

(separate views of Commissioner Hendrie) . In their joint response,-UCS, NYPIRG, and Parents cavalierly claim that the NRC's exclusion of fear as an issue in the Three Mile Island

, Restart proceeding was merely "a matter of procedure."

Jo in t Re spo n se a t 4 n . * * . The Commission had directed the briefing of "the Atomic Energy Act and National Environmental Policy Act (NEPA) issues relevant to the acceptability of such (psychological stress] contentions."

In re Me tropoli tan Ed ison Co . , 12 N. R. C. a t 6 07. After these issues were briefed, the Commissioners were " evenly divided on the question whether the Board should consider psychological stress." Id. at 608. Subsequently, "a majority" of the f ull five-member Commission " voted to . . .

continue to exclude psychological stress . . . contentions from the . . . proceeding." Order at 2, In re Metropolitan Ed ison Co . (Three Mile Island Nuclear Station, Unit 1), No.

50-289 (unpublished order Sept. 17, 1981).

3. In r3 Metropolitan Edison Co. , 12 N. R. C . a t 612 (separate views of Commissioner Hendrie) .

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The potential intervenors do not agree. Rather than awaiting the Commission's decision on the safety of Indian Point, they have chosen to conduct a campaign designed to

. create anxiety and fear.

UCS, NYPIRG,'and Parents apparently believe that the issue of fear is relevant to the status of emergency planning in the vicinity of Indian Point.1 Parents goes further, maintaining that "[plarents, teachers, doctors, and other caretakers of children feel anxiety because of the-continued operation of Indian Point. These anxieties are communicated to children . . . ."2 Circulation of the. pamphlet "In Case of a nuclear Accident . . . Do You Know What To Do?"3 d7monstrates the potential intervenors' purpose. NYPIRG claims that the pamphlet "is totally beyond the pale of the hearings" because " FUSE is not a participant before this board, and therefore cannot present any defense of the specific wording s

1. Joint Response at 4-5.

l i 2. Parents' Contentions at 6.

3. This pamphlet was printed by the Fund for Secure l Energy, Inc. (FUSE), and distributed by NYPIRG. See Af fidavit of Roger Stavis ( Attached as Exhibit B) . In

( addition, the Authority is informed and believes that officials of NYPIRG's Indian Point Shutdown Project have

distributed both the NYPIRG " Parents' Survey" and the L pamphlet "In Case of a Nuclear Accident . . . Do You Know What To Do?" to assemblies in Rockland and Westchester Counties.

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, Lit; adopted."1 This assertion is misleading. NYPIRG would-have . thisDBoard believe . that .there' is ~ no connectioni between -

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what.NYPIRG terms a

• legitimate instrument of ' mass communi-ca tion ," 2 and NYPIRG. 'But it was NYPIRG.that distributed'

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this. pamphlet:to the public.

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'Although the potential..intervenors may have a consti-tutional right to frighten, they'have'no rightLto utilize.:

the psychological-stressethey have: created as evidence-favorable to th'eir-position in this proceeding. ..This equity-will not permit.3

1. -Joint Response at 3 n.*.

2. Id.

'3. See Precision Instrument Manufacturing -Co. v.

Automotive Maintenance Machinery Co. , 324 U.S. 806 (1945);

[ Republic -Molding Corp. v. B.W. Photo Utilities, 319 F.2d 347 (9th Cir. 1963).: Contrary to . the cla im of UCS, NYPIRG, and Parents, Joint Response at 2, a licensing 1 board is entirely free to' apply estoppel against a party.to a proceeding.

See, e .g. , In re Toledo Edison Co. (Davis-Besse Nuclear.

j Power Station), 2 N.R.C. 752, 766-68 (1975).

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e

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Conclusion Both the Authority's motions -for leave to file ' the reply and to exclude should be granted.

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' Respectfully submitted,

/

/ ~

Charles Morgan, Jr. -

Paul F. Colarulli Joseph J. Levin, Jr 1899 L Street, N.W.

Washington, 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 i

SHEA &-GOULD 330 Madison Avenue New York, New York 10017 POWER AUTHORITY OF THE STATE OF NEW YORK Licensee of-Indian Point

, Unit 3 l 10 Columbus Circle New York, 'New York 10019 Dated: December 31, 1981 t