ML20052A656

Memorandum of Law Supporting Motion for Directed Certification.Aslb Wrongly Concluded That ASLB Does Not Have Jurisdiction to Issue Stay in Proceeding.Commission Review Appropriate Since ASLB Failed to Certify Motion

ML20052A656
Person / Time
Site:	Indian Point
Issue date:	04/20/1982
From:	Morgan C MORGAN ASSOCIATES, POWER AUTHORITY OF THE STATE OF NEW YORK (NEW YORK
To:	NRC COMMISSION (OCM)
Shared Package
ML20052A648	List: ML20052A647 ML20052A656
References
ISSUANCES-SP, NUDOCS 8204280548
Download: ML20052A656 (11)

Text

o UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:

Nunzio J. Palladino, Chairman Victor Gilinsky John '. Ahearne Thomas M. Roberts

)

In the Matter of )

)

CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. ) Docket Nos.

(Indian Point, Unit No. 2) )

) 50-247 SP POWER AUTHORITY OF THE STATE OF NEW YORK ) 50-286 SP (Indian Point, Unit No. 3) )

)

)

LICENSEE'S MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR DIRECTED CERTIFICATION OF 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, FOR CERTIFICATION TO THE COMMISSION Introduction This memorandum of law is filed by the Power Authority of the State of New York, licensee of Indian Point Unit 3, j in support of the Licensee's Motion for Directed Certifica-tion of 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', for Certification to the Commission (Nov. 26, 1981) (Motion) (attached as Appendix A).

The Motion, requesting a stay or dismissal of this proceeding, is a matter which "must be reviewed now or not at all." In re Kansas Gas & Electric Co. (Wolf Creek l

[

8 2 04 280SYB

Nuclear Generating Station, Unit 1), 3 N.R.C. 408, 413 (1976); In re Houston Lighting & Power Co. (South Texas Project, Units 1 and 2), 13 N.R.C. 469, 473 (1981).

I. THE REQUIREMENTS FOR DIRECTED CERTIFICATION HAVE BEEN SATISFIED A party seeking directed certification "must establish that a referral would have been proper; _i_. e_. , that, failing a certification, the public interest will suffer or unusual delay or expenses will be encountered." In re Public Ser-vice Co. of New Hampshire (Seabrook Station, Units 1 and 2), 1 N.R.C. 478, 483 (1975) (footnote omitted).1 Accord In re Toledo Edison Co. (Davis-Besse Nuclear Power Station),

2 N.R.C. 752, 759 (1975).

The issues raised in the Motion meet this standard.2

1. 'Ihis standard is a less stringent standard than the " major or novel questions of policy, law or procedure" standard incorporated in 10

. C.F.R. Part 2, App. A S V(f)(4) and 10 C.F.R. S 2.785(d)(1). Althotgh l

the Nuclear Regulatory Cmmission staff has argued previously that the more stringent " major or novel questions of policy, law or procedure" standard should be satisfied for directed certification, the Atomic Safety and Licensing Appeal Board has refused to adopt this higher standard. In re Public Co. of New Hampshire, 1 N.R.C. at 483 n.12.

2. 'Ihe issues are:

4 (1) cmmencement of an adjudicatory proceeding prior to completion of ongoing proceedings to establish generic standards constitutes a denial to licensees of procedural due process; (2) principles of res judicata and c611ateral estoppel bar reconsideration of the physical and population characteristics of the Indian Point sites; (3) the Commission's failure to adhere to its

The public interest will suffer if the due process guaran-tees of the Constitution are abused, see Memorandum of Law in Support of Motion at 8-21, 37-39, 53-60 (attached as Appendix B), or if the Nuclear Regulatory Commission (Com-mission) exceeds its regulatory jurisdiction, see id at 53-60, or conducts its affairs in direct contradiction to previously taken actions having the force of law. See id.

at 22-28, 29-34, 35-36, 45-52. Moreover, the licensees will be subject to undue expense if they are required to partic-ipate in an investigatory-adjudicatory proceeding which will address issues that are to be addressed again in generic proceedings, see M. at 8-21, and if the licensees then have existing siting criteria constitutes action which is arbitrary, capricious, an abuse of discretion, and a deprivation of property without due process of law; (a) the siting criteria are violated by the Commission's January Order; (b) the applica-tion of existing siting criteria to existing plants has been ratified by Congress; and (c) the retroactive application of new siting standards would violate the due process clause; (4) the Constitution requires that the Canmission i establish canpelling reasons to justify a shutdown j of Indian Ibint; i (5) an adverse ruling fran a readjudication of l the Indian Ibint site would result in an impair-ment of contract and a taking of property wittout

, just canpensation guaranteed by the fifth amend-I ment; and l (6) the Canmission lacks jurisdiction to conduct the nybrid investigatory-adjudicatory proceeding I which constitutes an unconstitutional singling out

( of the Indian Ibint licensees.

i Appendix A at 3-4. The Atanic Safety and Licensing Board incorrectly states that the Motion contained only four issues. Memorandum and Order at 2 (Mar. 29,1982).

1

to relitigate issues that have already been settled under principles of res judicata and collateral estoppel, see id,.

at 22-28, and then have to significantly alter or cease their present operations. See id. at 45-52.

In addition to the standards set out in In re Public w

Service Co. of New Hampshire, 1 N.R.C. at 483, the Atomic Safety and Licensing Appeal Board (Appeal Board) has also said that discretionary interlocutory review will be granted where the ruling below either (1) threatened the party adversely affected by it with im-mediate and serious irreparable impact which, as a practical matter, could not be allevia-ted by later appeal or (2) affected the basic structure of the proceeding in a pervasive or unusual manner.

In re Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), 5 N.R.C. 1190, 1192-(1977); accord In re Houston Lighting & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), 13 N.R.C. 309, 310 (1981); In re Offshore Power Systems (Floating Nuclear Power Plants), 9 N.R.C. 8, 11 (1979).

The harm described herein will be suffered irreparably by the licensees and many of the licensees' claims will be mooted if the licensees are required to await a final deci-sion before the Motion is subjected to Commission review.

Additionally, the issues raised will significantly affect the structure of the hearing.

These issues are at least as significant as others which have been reviewed on interlocutory appeal. Inter-l ,

locutory review'has been extended to an Atomic Safety and Licensing Board's (Licensing Board's) misinterpretation of an Appeal Board mandate. In re Consumers Power Co.

(Midland Plant, Units 1 and 2), 7 N.R.C. 465, 468-69 (1978). In that case, the parties requested the Licensing Board to defer prehearing filings and the hearing because settlement negotiations were underway. Id. at 467. The Licensing Board denied the request, reasoning that the Appeal Board's mandate required the hearings to go forward without delay. _Id . a t 4 6 7-6 8. The Appeal Board directed certification and reversed the Licensing Board's order, finding that "a claim of deprivation of due process" exis-ted. M ., citing In re Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2),

7 N.R.C. 179, 188 (1978). The Appeal Board held that the Licensing Board had erroneously misconstrued its previous decision as a mandate for "the hearing . . . [to] be star-l ted and completed at the earliest possible date." In re Consumers Power Co., 7 N.R.C. at 468. The Appeal Board i ordered the Licensing Board to take " steps . . . to avoid l

unnecessary litigation." M. at 469.1

1. In other cases, interlocutory review has been extended to a l

Licensing Board's suspension of a proceeding, In re Exxon Nuclear Co.

(Nuclear Fuel Pecovery and Recycling Center), 6 N.R.C. 199, 203 (1977) l review denied (unpublished order Sept. 7, 1977); the subpoena of Advi-sory Committee on Reactor Safeguards consultants, In re Pacific Gas &

Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),

9 N.R.C. 42, 45 (1979); the appropriateness of setting a deadline for I

The Licensing Board in this case held that it was without jurisdiction to grant the Motion, yet refused to certify the matter to the Commission reasoning that no

" major or novel questions of policy law or procedure" were presented. Memorandum and Order at 5.1 Although not clearly articulated, it appears that the basis for this finding was the Licensing Board's view that the Motion was " virtually the same motion" made by the licensees previc Isly. Id. at 3, 5. See Licensees' Motion for Reconsideration of that Portion of the Commission's the Cmmission staff's preparation of a final environmental statement and the consideration of " Class 9 accidents," In re Offshore Power Systems (Floating Nuclear Power Plants), 8 N.R.C. 1%, on reconsidera-tion, 8 N.R.C. 323, 325 (1978), aff'd, 10 N.R.C. 257, 2 E (1979); the sequestration of witnesses, 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); the denial of permission to begin "offsite" construction

! activity, In re Kansas Gas & Electric Co. (2 1f Creek Nuclear Generating Station, Unit 1) 3 N.R.C. 293, 297 (1976), aff'd, 5 N.R.C.1 (1977); the disclosure of contract terms claimed to be proprietary, In re Kansas Gas

& Electric Co. (Walf Creek Nuclear Generating Station, Unit 1) 3 N.R.C.

(

I 408, 411-12 (1976); the refusal to issue an operating license until antitrust review was empleted; In re Toledo Edison Co. (Davis-Besse l

Nuclear Power Station, Unit 1), 3 N.R.C. 331, 334 (1976); the l disqualification of attorneys, In re Toledo Edison Co. (David-Besse Nuclear Power Station, Units 1, 2 and 3), 3 N.R.C. 785, 791 (1976); and I the disclosure of provisions of a security plan, In re Pacific Gas &

Electric Co. (Diablo Canyon Nuclear Nwer Plant, Units 1 and 2), Nos.

50-275, 50-323 (unpublished order Nov. 2. 1976).

1. We Licensing Board cited only one case, In re Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear ibwer Station), 7 A.E.C. 982, 984-85 (1974), in which certification was granted, to support its denial of certification here. In Vermont Yankee, the Appeal Board l

l stated that a " compelling reason" was necessary for certification. Id_.

at 984. We issue in Vermont Yankee was whether an intervenor could receive financial assistance "'to meaningfully participate in the pro-ceeding '" Id. at 982. We issues raised by Licensees' obtion are at least as " compelling" as the question in Vemont Yankee.

Order of May 30, 1980 which Directs Adjudicatory Hearings (July 25, 1980) (Motion for Reconsideration). That is incorrect.1 The Motion addresses a different set of issues.

Although the Licensing Board apparently misconstrued the Motion with respect to arguments previously made, the issues raised therein are clearly " major or novel ques-tion [s] of policy, law or procedure . . . which cannot be resolved except by the Commission [and which require con-sideration because al prompt and final decision of the question [s are] important for the protection of the public interest or to avoid undue delay or serious prejudice to the interests of a party." 10 C.F.R. Part 2, App. A.

1. We Commission, itself, identified the issues that were raised in the licensees' dbtion for Reconsideration. The Comission wrote:

t e basis for the [ licensees'] petition [for recon-sideration] is the Task Force's conclusions that IMian Point pses the same overall societal risk and less of an individual risk than a typical reactor on a typical site. Se licensees also contend that the population density is not materially dissimilar fran numerous other sites not subject to adjudicatory hearings.

In re Consolidated Edison Co. (Indian Point, Units 2 and 3),13 N.R.C.

1, 5 (1981) (emphasis added). While the licensees' Motion for Reconsid-eration briefly addressed the pendency of the generic proceedings as a basis for not tolding the proposed proceeding, the argument was based on administrative convenience to the Commission aM did not address the deprivation of procedural due process the licensees would suffer.

Motion for Reconsideration at 10-12. Due process issuec, similar to those now raised by the licensees, have been given careful consideration in other proceedings. See text, supra at 5.

S V(f)(4).1 The tenth and fourteenth amendment questions relating to the protection of regulated property, the issues of pro-cedural due process, and the res judicata and siting issues go to the heart of Commission policy and present " major or novel questions" not previously considered by the Commis-sion. The Commission Statement of Policy, relied upon by the Licensing Board, see Memorandum and Order at 5, states, "For example, a board may find it appropriate to certify novel questions as to the regulatory jurisdiction of the Commission." Id. (emphasis added). Clearly, the licen-sees' argument that the Commission lacks jurisdiction to conduct a hybrid investigatory-adjudicatory proceeding raises a " novel question" with respect "to the regulatory jurisdiction of the Commission."

II. THE LICENSING BOARD INCORRECTLY CONCLUDED THAT IT DOES NOT HAVE JURISDICTION TO STAY THIS PROCEEDING 1

The Licensing Board concluded that it did not have the 2 and that the proper forum for jurisdiction to enter a stay

1. Cf. 10 C.F.R. S 2.785(d) ("an Atomic Safety and Licensirg Appaal BcGrd may, either in its discretion or on direction of the Ccrumission, certify to the Comission for its determination major or novel questions of policy, law or procedure") .

2. The Licensing Board failed to address the issue of its juris-diction to order a dismissal of this proceeding. See Memorarrium and Order. 'Ibe failure of a Licensing Board to articulate in reasonable detail its reasons for an interlocutory rulity on a matter of signifi-cant importance has been grounds for grantirq directed certification to

_9_

a request for a stay is with the Commission. Memorandum and Order at 4-5.

Because licensing boards derive their powers from the Commission and its regulations, 10 C.F.R. S 2.721, the Licensing Board may " handle all aspects of licensing pro-ceedings which would otherwise be entrusted to the Commis-sion itself." In re Kansas Gas & Electric Co. (Wolf Creek Nuclear Generating Station, Unit 1) 3 N.R.C. 293, 301 n.11 (1976), aff'd, 5 N.R.C. 1 (1977); see In re Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), 5 N.R.C. 727, 730 (1977). Licensing boards are not mere evidence-gathering bodies. They have "[rlesponsibil-ity for the appraisal att initio of the record." In re Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 2), 5 A.E.C. 319, 322 (1972).

There is no question but that the Commission has the authority to stay or dismiss this proceeding. See 5 'J.S.C.

S 555(b); 10 C.F.R. S 2.788. The Appeal Board has ' repeat-edly stressed" that the proper practice is to seek a stay of a proceeding from the Licensing Board. In re Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Unit 2),

5 N.R.C. 1185, 1186 n.2 (1977); In we Toledo Edison Co.

(Davis-Besse Nuclear Power Station, Units 1, 2 and 3), 5 order the Licensing Board to clarify its reasoning. In re Pacific Gas &

Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),

8 N.R.C. 406, 412 (1978).

N.R.C. 35, 36 (1977); In re Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), 4 N.R.C. 10, 12 (1976). The Commission's regulations require all motions to be presented to the Licensing Board when a pro-ceeding is pending before it, 10 C.F.R. S 2.730(a), and the Licensing Board must " hear and decide all issues that come before [it]." Id. at Part 2, App. B(1). Therefore, if a matter must be presented before the Licensing Board for decision, then the Licensing Board must have jurisdiction to enter a stay of that matter.

Conclusion Commission review of the Licensee's Motion for Direc-ted Certification of 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, for Certification to the Commission is appropriate because the Licensing Board improperly failed to certify the Motion to the Commission and because the Licensing Board erroneously concluded it did not have the power to orcer a stay. Even if the Licensing Board did not have authority to stay or dismiss this proceeding, it should have certified the Motion so that the Commission could resolve the " major or novel questions" raised by the licensees while the Licens-ing Board continued the proceeding.

Respectf ully submitted ,

Charles Morgan, O'r. 4' (

Paul F. Colarulli Joseph J. Levin, Jr.

MORGAN ASSOCIATES, CHARTERED 1899 L Street, N.W.

Washington, D.C. 20036 (202) 466-7000 Thomas R. Frey General Counsel Charles M. Pratt Assistant General Counsel POWER AUTHORITY OF THE STATE OF NEW YORK Licensee of Indian P41nt Unit 3 10 Columbus Circle New York, New York 10019 (212) 397-6200 Bernard D. Fischman Michael Curley Richard F. Czaja David H. Pikus SHEA & GOULD 330 Madison Avenue New York, New York 10017 (212) 370-8000 Dated: April 20, 1982 l

l l

l

e

, 9 C T.)(E],iD UNITED STATES OF AMERICA d'-

NUCLEAR REGULATORY CCMMISSION BEFORE'THEATCMICSAFETY'ANDLICEMSINGBbRD Louis J. Carter, Chairman Frederick J. Shon . ~ ^ 71I Dr. Oscar H. Paris 1,g;,v..C.tT -

1

)

In the Matter of )

)

CONSOLIDATED EDISON CCMPANY OF NEW YORK ) Cocke t Nos .

(Indian Point Unit 2) )

) S0-247 SP POWER AUTHORITY OF THE STATE OF NEW YOR'< ) 50-286 SP (Indian Point Unit 3) )-

)

)

LICENSEES' MOTION FOR A STAY OF COMMISSION' S ORDERS OF JANUARY 8, 19 81 AND SEPTEMBER 18, 1981 OR FOR DISMISSAL OF THIS PROCEEDING OR, IN THE ALTERNATIVE, FOR CERTIFICATION TO THE COMMISSION This motion is filed by Consolidated Edison Company of New York, Inc. and the Power Authority of the State of New York, licensees of Indian Point Units 2 and 3, respectively .

(hereinafter collectively referred to as licensees). The Nuclear Regulatory Commission's (Commission's) Orders of January 8, 19 81, and September 18, 19 81, direct that a hearing be conducted before the Atomic Safety and Licensing Board ( Licensing Board) regarding the operation of the Indian Point units. Licensees move for a stay of this hearing pending the completion of presently scheduled and ,

proposed generic proceedings or for dismissal of this pro-ceeding. In the alternative, licensees move for certi-( m3 '"

APPENDIX A

I )

r '

a i {,(

,,.;ym r g g g_ - '"

2-fication of the issues raised in this motion to the Commission for its determination, pursuant to 10 C.F.R.

S 2.718 (i) (1981), if the Licensing Board considers that the Commission's prior orders preclude the Licensing Board from granting the relief sought in this motion.

Licensees, by this motion, do not seek to hinder any legitimate examination by the Commission into the safety of the Indian Point units. What they do object to is being forced into this evidentiary hearing using trial-type procedures without knowing what standards and criteria will be used to determine the adequacy of safety systems at the plants. Such relevant safety standards and criteria are being established in generic proceedings previously committed to or now in progress before the Commission. In addition, this proceeding is infected with other constitutional and statutory defects. Fundamental principles of fair play and due process of law require that these matters be resolved before this proceeding is conducted.

i j

A task force appointed by the Commission at the outset ,

of this matter to analyze the accident risk at the Indian Point site concluded that the Indian Point units pose 30 to I 50 times less risk to persons and property than the The public interest, therefore,

. postulated typical reactor.

f is not served by rushing forward with the Indian Point proceeding in violation of licensees' constitutional and i

3-Statutory rights.

Licensees submit that the Licensing Board should not commence the proposed hearing based upon the following six grounds which are more fully set forth in licensees' supporting Memorandum of Law which is incorporated herein by reference:

(1) Commencement of an adjudicatory proceeding prior to completion of ongoing proceedings to establish generic standards constitutes a denial to licensees of procedural due process (see Licensees' Memorandwn of Law at 8);

(2) Principles of res judicata and collateral estoppel bar reconsideration of the physical and population characteristics of the Indian Point sites (see Licensees' Memorandum of Law at 22);

(3) The Commission's failure to adhere to its existing siting criteria constitutes action which is arbitrary, capricious, an abuse of discretion, and a deprivation of property without due process of law: (a) the siting criteria are violated by the Commission's January Order (see Licensees' Memorandum of Law at 29 ) ; (b) the application of existing siting criteria to existing plants has been ratified by Congress (see Licensees' Memorandum of Law at 35); and (c) the retroactive application of new siting standards would violate the due process clause (see -

Licensees' Memorandum of Law at 37);

(4) The Constitution requires that the Commission establish compelling reasons to justify a shutdown of Indian Point (see Licensees' Memorandum of Law at 40);

(5) An adverse ruling from a readjudication of the Indian Point site would result in an impairment of contract and a taking of property without just compensation guaranteed by the fifth amendment (see Licensees' Memorandum of Law at 45); and (6) The Commission lacks jurisdiction to conduct the hybrid investigatory-adjudicatory proceeding which constitutes an unconstitutional singling out of the Indian Point licensees (see Licensees' Memorandum of Law at 53) .

WHEREFORE, the motion of Consolidated Edison Company of New York, Inc. and the Power Authority of the State of New York for a stay of these proceedings, which are mandated by the Commission's Orders of January 8, 19 81, and September 18, 19 81 directing that a hearing be held concerning Indian Poin t Units 2 and 3, pending completion of presently scheduled and proposed generic proceedings, or for dismissal of this proceeding or, in the alternative, for certification of the issues raised in this motion to the Commission for its determination pursuant to 10 C.F.R. S 2.718(i) should be l

granted.

4 l

l

Licensees request oral argument on this motion.

Respectfully submitted, Brent L.

r Brandenourg Charles Morgan, Jr.

M I

/

Paul F. Colarulli f 1899 L Street, N.W.v/ i CONSOLIDATED EDISO COMPANY Washington, D.C. 20036 OF N EW YO RK , IN, . (202) 466-7000 Licensee of Indian Point Unit 2 4 Irving Place Thomas R. Frey New York, New York 10003 General Counsel (212) 460-4600 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 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: November 25, 1981

. . em TMn7 3 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

~

BEFORE THE ATOMIC S AFETY AND LICENSIN6i Bd%h25 P4 :36 Louis J. Carter, Chairman Frederick J. Shon .:_,__.,_

Dr. Oscar H. Paris , ig. }ygh7j'[

2ancH

)

In the Matter of )

)

CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. ) Do cke t No s .

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

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

(Indian Point, Un it No . 3 ) ~

)

)

)

LICENSEES' MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR A STAY OF COMMISSION'S ORDERS OF JANUARY 8, 19 81 AND S EPTEMBER 18, 19 81 OR FOR DISMISSAL OF THIS PROCEEDING OR, IN THE ALTERNATIVE, FOR CERTIFICATION TO THE COMMISSION This memorandum of law is filed by the Consolidated Edison Company of New York, Inc. ( Consolidated Edison) and the Power Authority of the State of New York ( Authority), licensees of Indian Point Units 2 and 3, respectively, in support of licensees' motion for a stay of the Nuclear Regulatory Commis-sion's (Commission's) Orders of January 8, 19 81, and September 18, 19 81, pending the completion of presently scheduled and proposed generic proceedings, or for dismissal of this proceed-ing. In the alternative, licensees seek certification of the issues raised in their motion and memorandum of law to the Commission for its determination, pursuant to 10 C.F.R. 5 2.718(i) (1981), if the Atomic Safety and Licensing Board J- APPENDIX B x

'I]

,~

~

gl s~ 3 { !} h

(Licensing Board or ASLB) considers that the Commission's prior orders . preclude the Licensing Board from granting the relief requested.1 j The grounds for this motion are:

(1) commencement of an adjudicatory proceeding prior to completion of ongoing proceedings to establish generic standards constitutes a denial to licensees of procedural due i

process (text at 8, infra);

l t

1. Licensing boards may certify questions to the Comission without first havim ruled on then. "[I]t would be wholly irrational to read Section 2.718(i) in such a manner that its availability . . . would [ depend on) the wholly fortuitous circumstance that the licensing board had already expressed its own views."). In re Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2),1 N.R.C. 478, 482 (1975); see In re j Consumers Power Co. (Midland Plant, Units 1 and 2), 6 A.E.C. 816, 818 n.6 (1973) (empnasis in original) ("Under the Rules of Practice, a certification involves the subtission of a legal issue to a higher tribunal

- for its consideration, without a ruling having been made on that issue by the certifying body"). The Comnission has the power at any time to undertake interlocutory review of any matter in any proceeding before any i

licensing board. In re United States Energy Research & Develognent Administration (Clinch River Breecer Reactor Plant), 4 N.R.C. 67, 74-76 (1976); In re Public Service Co. of New Hanpshire (Seabrook Station, Units

! 1 and 2), 5 N.R.C. 503, 516-17 (1977), aff'd, New England Coalition on Nuclear Pollution v. NRC, 582 F.2d 87 (1st Cir. 1978).

Certification to the Canmission pursuant to 10 C.F.R. S 2.718(i) is canpelled by the unique circumstances of this case. The licensees' motion is one which "must be reviewed now or not at all." In re Kansas Gas and Electric Co. (21f Creek Nuclear Generating Station, t.hlt tb.1), 3 N.R.C.

408, 413 (1976); In re Ibuston Lighting & Power Co. (South Texas Project, Units 1 and 2), 13 N.R.C. 469, 473 (1981).

'Ihe exceptional circumstances of this motion are such that failure to resolve the issues I:osed would jeopardize the public interest or cause unusual delay or expense. See In re 'Ibledo Edison Co. (Davis-Besse Nuclear Power Station), 2 N.R.C. 752, 759 (1975) . In light of the fact that ,

licensees' motion presents " major or noiel questions of policy, law or procedure," 10 C.F.R. S 2.785(d), directed certification is mandate 3 because of the " exceptional circumstances which warrant the extraordinary involvement of the camission." Pennsylvania Power and Light Co.

(Susquehanna Steam Electric Station, Units 1 and 2),11 N.R.C. 678, 679 (1980).

(2) principles of res judicata and collateral estoppel bar reconsideration of the physical and population characteristics of the Indian Point site (text at 22, infra);

(3) the Commission's failure to adhere to its existing Siting Criteria constitutes action which is arbitrary, capricious, an abuse of discretion, and a deprivation of property without due process of law: (a) the Siting Criteria are violated by the Commission's January Order (text at 29, infra); (b) the application of existing Siting Criteria to existing plants has been ratified by Congress (text at 35, infra); and (c) the retroactive application of new siting standards would violate the due process clause (text at 37, infra);

(4) the Constitution requires that the Commission establish compelling reasons to justify a shutdown of Indian Point (text at 40, infra);

I (5) an adverse ruling from a readjudication of the Indian Point site would result in an impairment of contract and a taking of property without just compensation guaranteed by the l

fifth amendment (text at 45, infra); and (6) the Commission lacks jurisdiction to conduct the hybrid investigatory-adjudicatory proceeding which constitutes an unconstitutional singling out of the Indian Point licensees (text at 53, infra).

STATEMENT OF FACTS The Indian Point site was found safe by the NRC in 19 66, 19 69, and 19 77. See In re Consolidated Edison Co. (Indian Point, Unit 2), 3 A.E.C. 144, 151, a f f ' 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 (19 69); In re Consolidated Edison Co. (Indian Point, Units 1, 2, and 3), 6 N.R.C. 547, 624 (19 77), 10 N.R. C. 410 ( 19 79 ) , review denied, 2 CCH N.R.R.

1 30,536 (1980). In reliance thereon, the Authority authorized the issuance of bonds to purchase Indian Point 3 from Consolidated Edison.1 On September 17, 19 79 , the UCS filed a petition with the NRC requesting a proceeding to modify, suspend, or revoke the operating licenses for Indian Point Units 2 and 3. Union of Concerned Scientists' Petition for Decommissioning of Indian Point Unit 1 and suspension of Operation of Units 2, and 3, In re Consolidated Edison Co. (Indian '/oint, Units 1, 2 and 3),

No. 50-3 (filed Sept. 17, 19 79 ) (Fetition). The Petition

! requested that Indian Point Units 2 and 3 be shut down "unless and until the Commission determines that 1) the site is suit-i l

1. See her Authority of the State of New York, Financial Statements 8, 11 ( Dec. 31, 19 80) . Dacuments reflecting the financial statements of Consolidated Edison and the Authority, which detail the financing of the '

Indian Raint units, are on file with the NRC. "It is . . . well established that a regulatory agency has the right to take official notice of reprts filed with it by a regulated company." P. Saldutti & Son, Inc.

v. United States, 210 F. Sung. 307, 313 (D.N.J.19 62T; see Marxet St. Ry_._ v.

Failroad Ccrm'n, 324 U.S. 548, 561-62 (1945); Wisconsin v. FPC, 201 F.2d 163,186 (D.C.Cir.19 52), cert. denied, 345 U.D34 (19 53) .

able for nuclear power generation; 2) each applicable unre-solved safety problem is addressed; and 3) the requirements of each Regulatory Guide are addressed." Id. at 1 65(c).

Remarkably, the Petition did not contend that Indian Point Units 2 or 3 differed in safety from other plants located throughout the country. Instead, it acknowledged that "(s]ome of the safety issues raised by this petition are not unique to the Indian Point nuclear power plants." Id. at 1 10 (emphasis added). The Petition did argue that the proximity of the plants to the New York City metropolitan area makes the Indian Point site " unique." Id.

The Commission treated the Petition as a request for action pursuant to 10 C.F.R. S 2.206 (1981) and referred it to the Of fice of Nuclear Reactor Regulation (NRR) . Request for Action Under 10 C.F.R. S 2.206 ( filed Dec. 3, 19 79 ). On February 11, 1980, the Director of NRR recommended denial of the Petition's request for a hearing and a shutdown, and he directed the licensees to undertake operational and training initiatives to further enhance plant safety. In re Consolidated Edison Co. (Indian Point, Units 1, 2, and 3), 11 N.R.C. 351 (1980).1

1. %e Director's decision stmmarized several extraordinary an3 safety enhancirg design features of the tw operating reactors at the site which are found in few other plants. We decision also carefully evaluated each of the supposed safety deficiencies alleged in the Petition. Se decision conprised a trerough ard ccmprehensive safety evaluation of Indian Ibint Units 2 and 3. Se Director concitded that "[bloth plants have been significantly modified to meet NRC safety ard security requirenents." In, re Consolidated Edison Co. ,11 N.R.C. at 369.

Despite the recommendation of the NRR Director, the NRC solicited public comment as to the merits of the Director's decision and as to the form further Commission consideration of the matter should take. Solicitation of Comment on Director's Decision Under 10 CFR 2.206, at 2 (filed Feb. 19, 1980).

Thereafter, the NRC decided to conduct an " adjudicatory" pro-ceeding to determine what, if any, action should be taken. The NRC also established a task force to analyze and report to the NRC on the reactor accident risk (both in terms of probability and consequences) at Indian Point compared to reactor accident risk at other sites. Order at 3, 5-6 (filed May 30, 1980).

This task force concluded that the "overall (i.e., socie-tal) risk of the Indian Point reactor is about the same as a typical reactor on a typical site." Task Force Report on Interim Operation of Indian Point 40 (NUREG-0715) (1980)

(Indian Point Task Force Report). With respect to the level of safety to individuals, the task force concluded that the Indian i Point units posed 30 to 50 times less risk to persons and property than the postulated typical (Surry) reactor. Id. at 34.1

1. 'Ihe Indian Point Task Force Report is not the only sttdy which arrived at this conclusion. The task force's safety analysis is generally consistent with an analysis prepared by Westinghouse Electric Corporation, which concitded that the risk of Indian Point is substantially less than the postulate 3 typical reactor evaluated in the Reactor Safety Study, WS+-

1400. Itstinghouse/ Offshore Pow r System (OPS), Report on the Evaluation of Residual Risk for the Indian Point Power Plant (filed May 23, 1980).

l l

On January 8, 1981, the Commission ordered that hybrid hearings be conducted by an ASLB and permitted continued operation of the plants during the planned hearings. In re Consolidated Edison Co. (Indian Point, Units 2 and 3), 13 N.R.C. 1 (1981). Although the hearing is to use "the full procedural format of a trial-type adjudication, including discovery and cross-examination," the Commission exempted this hearing from the application of the important procedural requirements of 10 C.F.R. Part 2 (1981). In re Consolidated Edison Co., 13 N.R.C. at 5& n.4. Although the population characteristics of the Indian Point site had been fully examined prior to the issuance of a license, the Commission emphasized that its " primary concern is the extent to which the population around Indian Point affects the risk posed by Indian Point as compared to the spectrum of risks posed by other nuclear plants." Id . at 6.

The Commission directed the ASLB to address an ambitious list of issues which includes: the level of risk posed by I

l serious accidents, including incredible accidents, at this site; the improvements in safety which will result from the measures taken pursuant to the Order of the Director of NRR; the status of emergency planning, including improvements that i

can be made; the level of safety at Indian Point compared to t

the level of safety at the site of other operating facilities;

! the economic, environmental, energy or other consequences of a 1

-7 -

l i

4 shutdown; and the official position of the Governor of the

- State of New York. Id. at 7-8. The Commission-wrote, "Although normal ex parte constraints will apply to communica-tions to the Licensing Board, the Commission will not be limited in its ability to obtain information with respect to Indian Point from any source." Id . at 5 n.4.

On September 18, 1981, the Commission revised its January order in an effort to limit the contentions that would be considered, to clarify the risk analysis required , and to appoint an ASLB. Memorandum and Order at 1-4 (NRC, filed Sept.

18, 1981) (September Order); 45 Fed. Reg. 47,330 (Sept. 25, 1981). On October 7, 1981, the ASLB ordered that requests to be admitted as parties and to intervene must be filed by November 6, 1981. 46 Fed. Reg. 49,688 (Oct. 7, 1981).

I. COMMENCEMENT OF AN ADJUDICATORY PROCEEDING PRIOR TO COMPLETION OF ONGOING PROCEEDINGS TO ESTABLISH GENERIC STANDARDS CONSTITUTES A DENIAL TO LICENSEES OF PROCEDURAL DUE PROCESS The public interest requires the prompt resolution of l generic issues prior to the commencement of any Indian Point site-specific proceeding.1 Congress has directed the NRC to l

1. Petitioner admits the issues it raises are not limited to the Indian Point plants. Petition 5 10. The prcmulgation of generic standards muld not only apprise other licensees of their duties, it would avoid the unnecessary litigation of issues.

_. _ _ . _ _ _ _ . -~ _

4 A-develop, submit to the Congress, and imple-ment, as soon as practicable after notice and opportunity for public comment, a com-prenensive plan for the systematic safety evaluation of all currently operating utilization faciliyies . . . .

NRC Appropriations Act, Act of June 30, 1980, Pub.L.No.96-295, S 110(a), 94 Stat. 785 (1980) (emphasis added). The NRC is specifically directed to ascertain each f acility's level of compliance with significant rules and regulations pertaining to the public health and safety. The NRC also is to develop a schedule for incorporating technical solutions to unresolved generic safety issues into its regulations. Id. S 110(b).

Congress, thus, has directed the NRC to proceed with the establishment of a comprehensive plan to set standards for an evaluation of the safety of all operating nuclear power plants. The NRC Appropriations Act forbids inclusion of a requirement that the NRC address compliance with NRC rules and regulations absent a " comprehensive plan for . . . systematic safety evaluation" for all plants. No plan exists and to mandate a unique proceeding for one site is to violate the congressional intent. See City of Santa Clara v. Andrus, 572 F.2d 660, 677 (9th Cir.) (citations omitted) (" administrative actions taken in violation of statutory authorization or requirement are of no effect"), cert. denied, 439 U.S. 859 (1978); United Steelworkers v. NLRB, 390 F.2d 846, 851 ,

( D.C.Cir . ) (" Administrative agencies will be required to follow Congressional mandate, whether explicit or ascertainable as i

inherent in underlying policy."), cert. denied, 391 U.S. 904 (1968); . Summit Nursing Home, Inc. v. United States, 572 F.2d 737, 742 (Ct.C1. 1978) (citation omitted) ("It is well settled, that administrative agencies are required to follow a congressional mandate.").

Underlying the issues raised by the NRC's January Order (and the Petition) are broad policy questions which are currently the focus of major NRC generic proceedings and studies. Without the articulation and publication of this revised safety philosophy, there can be neither a fair nor even an adequate analysis of the comparative safety of the Indian Point facilities.

Since the filing of the Petition, the Commission has:

(1) initiated establishment of an overall safety goal in March 1981, NRC, Toward a Safety Goal: Discussion of Pre-i liminary Policy Considerations (NUREG-0764);

(2) noticed a rulemaking process on damaged cores on October 2, 1980, 45 Fed. Reg. 65,474; (3) begun preparation of a Procedures Guide for applica-l tion of probabilistic analysis to all nuclear power plants on May 27, 1981, 46 Fed . Reg . 28,536; (4) considered establishment of minimum engineered safety l

featuren, 45 Fed. Reg. 50,350, 50,351 (1980); and l (5) initiated implementation of a TMI Action Plan in November 1980. NRC, Clarification of TMI Action Plan Require-

ments (NUREG-0 737) (1980); NRC, NRC Action Plan Developed as a Result of the TMI Accident (NUREG-0660) (1980).1 The litigation of issues prior to the enunciation of industry-wide standards concerning them 2 constitutes a denial of due process of law to the licensees.3 The Commission's own position regarding generic proceed-ings is consistent with the approach licensees advocate here:

We agree with the Commission's position that it could properly consider the complex issue of nuclear waste disposal in a

" generic" proceeding such as rulemaki~ng, and then apply its determinations in sub-sequent adjudicatory proceedings.

1. In addition, many of the petitioner's concerns have been remlved as the plants have been nodified to neet them. See In i bnso11 dated Edimn Co. , 11 N.R.C. at 369-70.

2. Although the licensees addressed this question following the May 30, 1980 Ceder, Licensees' Motion for Nconsideration of 'Ihat Portion of the Canmission's Order of May 30, 1980 Wnich Directs kijudicatory Hearings at 10-12 (filed July 25, 1980), the Canmission failed to address it in its l January Order. Instead, the Canmission focused on the issue of conparative i

risk between India 1 mint and other sites. In re Consolidated Edison Co. ,

13 N.R.C. at 6.

In its January Order, the Comnission implicitly acknowledged that standards do not exist for this proceeding by requesting i*a staff as a

" highest priority" to formulate options on how to address the generic question of the operation of nuclear reactors in areas of high population density through a generic proceeding. Id. at 2 & n.2.

3. Due process of law governs standards for both rulemaking and adjtriication. See, e,.a. , Vennont Yankee Nuclear Power Corp. v. NRDC_, 435 U.S. 519, 541-42 (19 78); Margan v. t.nited _ States, 304 U.S.1,18-21 (1938);

Hof fman-La Poche, Inc. v. Kleindienst, 478 F.2d 1,12 (3d Cir.19 73) . In l

licensing matters, particularly, the fundamental requirements of due process must be met. Bell v. Burson, 402 U.S. 535, 539 (19 71); Ebrnsby v.

Allen, 326 F.2d 605, 608 (5th Cir.1964) .

Minnesota v. NRC, 602 F.2d 412, 416 (D.C.Cir. 1979).1 See Vermont Yankee Nuclear Power Corp. v. NPDC, 435 U.S. 519, 535 n.13 (1978) (generic fuel cycle rulemaking); Nader v. Ray, 363 F.Supp. 946, 955 (D.D.C. 1973) (generic treatment of emergency core cooling system).

Agencies should use their rulemaking powers in lieu of adj udication. SEC v. Chenery Corp., 332 U.S. 194, 202 (1947);

NLRB v. Majestic Weaving Co., 355 F.2d 854, 860 (2d Cir.

1966). The Supreme Court in NLRB v. Wyman-Gordon Co. , 394 U.S.

759, 764 (1969) (emphasis added) (citation omitted), stated:

The rule-making provisions of [the Administrative Procedure] Act . . . were designed to assure fairness and mature consideration of rules of general applica-tion. . . . They may not be avoided by the process of making rules in the course of adjudicatory proceedings.

See Chrysler Corp. v. Brown, 441 U.S. 281, 316 (1979) i (Congress, in enacting the Administrative Procedure Act (APA),

"made a judgment that notions of fairness and informed adminis-l trative decisionmaking require that agency decisions be made only after affording interested persons notice and an oppor-l l

1. Wis position was recently affirmed by then-Chairman of the NRC Joseph M. Hendrie. Statement of Joseph M. Hen 3rie, Q1 airman, NRC, Concernirg the Cmmission's FY 1982 Budget Request before the Subcmn. on Ehergy, Conservation and Power of the Carm. on Energy and Cmmerce, 97th Cong. ,1st Sess. , at 38 (Mar. 30,1981) (emphasis added) ("We Cmmission ,

has decided that during this (nuclear waste) proceedirg, the issues being considered in this rulemaking should not be addressed in individual licens-l ing proceedings but all current licensire proceedings will be subject to l whatever final determinations are reached in this proceedirg.") .

12 -

l

tunity to comment") ; Morton v. Ruiz, 415 U.S. 199, 232 (1974)

(citation omitted) (APA intended to provide "that administra-tive policies affecting individual rights and obligations be promulgated pursuant to certain stated procedures so as to avoid the inherently arbitrary nature of unpublished ad hoc determinations").

Principles of fairness--due process--mandate that rule-makings presently underway be completed so that known standards exist prior to commencement of the Indian Point proceeding.

The NRC is charged with administering a statute couched in the broad terms of protecting the public health and safety, 42 J.S.C. S 2201; "it is imperative . . . to narrow, clarify and explain this general directive" through standards. City of Lawrence v. CAB, 343 F.2d 583, 587 (1st Cir. 1965). Such

"[s]tandards are necessary . . . for reasons of f airness (and]

! to maintain the independence of the agencies, . . . . (F] rom the failure to develop and abide by standards flow errors."

Id.; see Power Reactor Development Co. v. International Union of Electrical, Radio and Machine Workers (International Union),

367 U.S. 396, 404 (1961) (Atomic Energy Act " clearly contemplates that the Commission shall by regulation set forth what the public safety requires as a prerequisite to the issuance of any license"); 2 Davis, Administrative Law Treatise S 7.26, at 131 (2d ed. 1979) (" Lack of standards or rules to guide discretion . . . may encourage arbitrary and 4 4 discriminatory action . . . . "). Notice prior to promulgation of standards and public participation through rulemakings minimize the potential for unf air treatment of one regulatee.

National Petroleum Refiners Association v. FTC, 482 F.2d 672, 683 (D.C.Cir. 1973), cert. denied, 415 U.S. 951 (1974).1 The proposed discretionary adjudication will address the issue of "how do the risks posed by Indian Point Units 2 and 3 compare with the range of risks posed by other nuclear power plants licensed to operate by the Commission?", In re Consoli-dated Edison Co., 13 N.R.C. at 8. Yet, the licensees have been given no notice of what new level of safety will be acceptable for Indian Point or acceptable for other nuclear power plants. The NRC's decisions "must not only be lawful--(they]

must be lawfully made as well. Indeed, that is wriat the due process clause is all about. . . . [0]ne element of a lawfully made decision is that it accords with previously stated and clearly articulated rules." J. Skelly Wright, Beyond Discretionary Justice, 81 Yale L.J. 575, 591 (1972) (emphasis added) (footnote omitted); see Burlington Truck Lines, Inc. v.

United States, 371 U.S. 156, 165-68 (1962); Secretary of

1. " Regulatory systens which operate without rules are inherently irrational and arbitrary. 'Ihe purpose of such a system is presumably to bring primary con 3uct into conformance with agreed ugn societal norms.

Yet a systen operating without rules cannot possibly achieve this goal, since the people being regulated are not informed of what the societal norms are." J. Skelly Wright, Beyond Discretionary Justice, 81 Yale L.J.

575, 589 (1972).

4 Agriculture v. United States, 347 U.S. 645, 653-54 (19 54); Ohio Bell Telephone Co. v. Public Utilities Commission, 301 U.S.

292, 303-05 (1937).

Because the proposed discretionary adjudication fails to give the licensees "' fair notice or warning'" of what is acceptable so they may act accordingly, Parker v. Levy, 417 U.S. 733, 752 (1974), quoting Smith v. Goguen, 415 U.S. 566, 572 (19 74), it is unconstitutionally void for vagueness.

Coates v. City of Cincinnati, 402 U.S. 611, 614, (1971) ("no s tandard of conduct is specified at all"). The rule that the requirements of a statute must be specified clearly and precisely has been defined as "a basic principle of due process." Grayned v. City of Rockford , 4 08 U.S . 104, 108 (19 72). A basic constitutional assumption has always been that one "is free to steer between lawful and unlawful conduct," and that the laws are to "give the person of ordinary intelligence a reasonable opportunity to know what is prohibited." Id. The i

contemplated proceeding illegally " trap [s] the innocent by not providing fair warning." Id. (footnote omitted).

Not only are "there [here] no standards governing the exercise of discretion," the proposed proceeding " permits and encourages an arbitrary and discriminatory enforcement of the law." Papachristou v. City of Jacksonville, 405 U.S. 156, 170 (19 72). Vague, inconsistent " goals" and " suggestions" as to what might satisfy agency requirements have been harshly dealt

with by the courts. Paccar, Inc. v. NHTSA, 573 F.2d 632, 645-46 (9th Cir.), cert. denied, 439 U.S. 862 (1978), emphasized a specific reason for plain standards:

Statutes prescribing penalties, civil or criminal, must be draf ted without ambigu-ity. Successive authorities of NHTSA might take an entirely different view than that announced by the incumbents, and subjecting

[ regulated parties] to such a risk does not comport with due process requirements.

Such "definitional uncertainty is open invitation, if indeed not inevitably an antecedent, to virtually unrestrained administration." Ricks v. District of Columbia, 414 F.2d 1097, 1101 (D.C.Cir. 1968).

The standardless proceeding to be held "'does not provide for government by clearly defined laws, but rather for government by the moment-to-moment opinions. '" Id . (footnote omitted). The ASLB may not constitutionally hold a hearing "without any legally fixed standards," and decide "what is prohibited and what is not." Giaccio v. Pennsylvania, 382 U.S.

399, 403 (1966). Such a procedure "impermissibly delegates basic policy matters (to the ASLB] on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discrimin-l atory application." Grayned v. City of Rockford, 408 U.S. at 108-09 (footnote omitted).

Because " [v] ague [ application of the laws] in any area suffer [s] a constitutional infirmity," Ashton v. Kentucky, 384 l U.S. 195, 200 (1966) (footnote omitted), the standardless i _ _ - _ -

proceeding contemplated by the Commission is void for vague-ness.

The petitioner admitted that the NRC must " decide crucial policy matters of first impression in this case." Union of Concerned Scientists' Comment on Director's Decision Under 10 CFR 2.206, at 4 (filed Mar. 10, 1980). Yet, a case-by-case adjudication of " crucial policy matters of first impression" necessarily " avoid [s] an overall policy statement of approach." American Airlines, Inc. v. CAB, 359 F.2d 624, 630 n.16 (D.C.Cir.), cert. denied, 385 U.S. 843 (1966).

The " breadth of the questions involved" requires that rulemakings should be completed first. Minnesota v. NRC, 602 F.2d at 417 (gan'eric consideration of waste disposal) .

While the line of dividing them may not always be a bright one, (there is] a recog-nized distinction in administrative law between proceedings for the purpose of promulgating policy-type rules or stand-ards, on the one hand, and proceedings designed to adjudicate disputed f acts in particular cases on the other.

United States v. Florida East Coast Ry., 410 U.S. 224, 245 (1973); accord, Independent Bankers Association v. Board of Governors of the Federal Reserve System, 516 F.2d 1206, 1215 (D.C.Cir. 1975) (agencies generally employ rulemaking to resolve broad policy questions). Rulemaking is "particularly adapted to and needful for sound evolution of policy in guiding the future development of industries subject to intensive administrative regulation in the public interest." American

Airlines, Inc. v. CAB, 3 59 F.2d at 629 (emphasis added);

accord, WBEN, Inc. v. United States , 39 6 F.2d 601, 618 (2d Cir.), cert. denied, 39 3 U.S . 914 (1968).

Generic proceedings, like the Indian Point hearings, address complex, technical issues, and rulemaking is the "more suitable context," American Commercial Lines, Inc. v. Louis-ville and Nashville R.R., 39 2 U.S . 571, 592 (1968),1 especially when ef forts to resolve generic issues are underway.2 See Ford Mo to r Co . v . FTC, 654 F.2d 599, 6 01-0 2 (9 th Cir,. 1981) (because a "pending rulemaking proceeding and this adjudication seek to remedy, more or less, the same credit practices" and "the rule of the case . . . will have general application," the agency

" exceeded its authority by proceeding to create new law by

1. Rulemakirg " opens up the process of agency Felicy innovation to a broad range of criticism, advice and data that is ordinarily less likely to be forthcanirg in adjudication." National Petroleura Refiners Association

v. FTC, 482 F.2d at 683; see Minnesota v. tEC, 602 F.2d at 419 (rulemaking would keep the NRC and the industry abreast of the " continuing evolution of the state of pertinent knculedge"); Ecology Action v. AEC, 492 F.2d 998, 1002 (2d Cir.1974) (citations omitted) ("the idea that a licensing agency should endeavor to identify . . . issues ccmnon to many [ facilities) and handle than in ' generic' proceedings would seen to benefit all parties");

National 'Ibur Brokers Assaciation v. United States, 591 F.2d 896, 902

( D.C.Cir. 19 78 ) (rulemakirg allows "the agency to benefit fran the expertise ad input of the parties who file coments with regard to the prop 3 sed rule"); Texaco, Inc. v. FPC, 412 F.2d 740, 744 (3d Cir.1969)

(agency needs "to educate itself before establishirg rules ad procedures which have a substantial impact on those regulated").

2. 'Ihe NRC's Statement of Policy strorgly supprts the use of generic rulemaking to resolve issues arising out of the 'Ihree Mile Island Unit 2 accident in March 1979. As "plicy rather than factual or legal decisions" are mast often involved, a generic resolution would be the most responsible course. NRC, Further Ccmmission Guidance for Power Reactor Operatirg Licenses: Statement of Eclicy at 6-7 (June 16,1980).

adjudication rather than by rulemaking"); Patel v._ INS, 638 F.2d 1199, 1204 (9th Cir. 1980) (agency " recognized the

- desirability of establishing a job-creation standard by rulemaking when it proposed the 19 73 regulation" although it did not include the standard in the rule, and court "conclud e (d ) that if the INS wished to add the job-creation criterion, it should have done so in a rulemaking proce-dure"). A preliminary safety goal proposal has been issued by the NRC. NRC, Toward a Safety Goal: Discussion of Preliminary Policy Considerations (NOREG-0764) (1981); see 4 5 Fed. Reg.

71,023 (1980) (notification of the NRC's plan to promulgate a safety goal); Plan for Developing a Safety Goal (NUREG-0735)

(1980); An Approach to Quantitative Safety Goals for Nuclear Power Plants (NUREG-0739) (1980). Additionally, the petitioner and the nuclear industry have been allowed to participate in the establishment of this safety goal. They have a forum in which their concerns and grievances are being addressed.1

1. See T. Cochran, D. MacLean, R. Pollard, & E. Weiss, Cmcrents on the NRC OHTce of Policy Evaluation's " Discussion Paper: Safety Coals for Nuclear Power Plants" (July 1981). 'Ihe UCS presented its views, which include an alternative safety goal to that presented by the NRC, at an NRC workshop in Harpers Ferry, Wst Virginia, on July 23, 1981.

See also Atmic Industrial Ebrum, A Prop 3 sed Approach to the Establisrznent and Use of Quantitative Safety Goals in the Nuclear Regulatory Prccess (May 1981). 'Ihe Atomic Industrial Ebrun ( AIF) has reconmersled that the Cmanission issue a policy statement that individual hearings will not preertpt generic proceedings. Istter frm D. Clark Gibbs to Secretary of the Commission at 2 (Dec. 31,19 80); see generally Atomic Industrial Ebrum Canmittee on Peactor Licensing and Safety, Caments on 10 CFR Bart 50, Etraestic Licensing of Production and Utilization Facilities [--]

Consideration of Degraded or Melted Cores in Safety Regulation, ;dvance

_ 19 _

Most importantly, the Congress expressly adopted this position in the following words:

It is the Committee's intention that the NRC follow the standard rulemaking pro-cedure in dealing with the safety goal issues as it does with other proposed rule changes.

Energy and Water Development Appropriation Bill, 1982, H.R.

Rep.No. 177, 97th Cong., 1st Sess. 151-52 (1981) (emphasis added). The NRC's decision to promulgate a safety goal is supplemented by 42 U.S.C.A. S 5845(f) (Supp. l980).1 _

The NRC has issued an Advance Notice of Rulemaking on damaged core issues. 45 Fed. Reg. 65,474 (1980). The AIF has simultaneously taken steps to formulate its suggestions regard-ing core damage through the Industry Degraded Core Rulemaking

( IDCOR) Program which has superseded the AIF Subcommittee on Degraded Core Rulemaking. See Atomic Industrial Forum Commit-tee on Reactor Licensing and Safety Comments on 10 CFR Part 50, Domestic Licensing of Production and Utilization Facilities (--]

l Notice of Proposed Rulemaking (45 Fed. Reg. 65,474), Cetober 2,1980 (Dec.

1980). 'Ibe AIF supp3rts "(aln integrated approach to rulemakings, with l

priority attention given to development of a safety goal and methodol-

ogy." Iatter from Eyron Iae, Jr. to the Honorable John Ahearne at 1 (Dec.

l 31, 1980). Upon empletion of the safety goal rulenaking, research and

! analysis should then be performed to determine whether to proceed with the damaged core rulemaking based upon technical considerations. Iatter fran D. Clark Gibbs to Secretary of the Comission at 2. '1he IEC staff's long-range research plan advocates a broad basis of technical infomation sufficient to supp3rt a rulemaking. Menorandtra from William J. Dircks to Ccmmissioners at 2 (SECY-Sl-229) (Apr. 9, 1981). ,

1. Section 5845(f) pecnides that the "Cmmission shall develop a long-teun plan for projects for the develognent of new or improved safety systens for ntx: lear power plants." 42 U.S.C. A. S 5845(f) .

20 -

Consideration of Degraded or Melted Cores in Safety Regulation, Advance Notice of Proposed Rulemaking (45 Fed. Reg. 65,474),

October 2, 1980 (Dec. 31, 1980). Additionally ,

the NRC has been exploring ways to system-atically apply probabilistic analysis to nuclear power plants. The NRC, in its Interim Reliability Evaluation Program (IREP) which is now underway, is developing and giving trial use to a procedures guide which could be the basis for systematic analysis of all nuclear power plants, a National Reliability Evaluation Program (NREP).

46 Fed. Reg. 28,536 (1981) (emphasis added). to further this program, the NRR has awarded grants to the Institute of Electrical and Electronics Engineers (S238,000) and the American Nuclear Society (S?28,000). Id.1 Thus, there has been significant progress in the establishment of quantitative safety goals for industry-wide application, the analysis of damaged core phenomena, and the preparation of a probabilistic analysis for systematic evaluation of all reactor units. Prompt completion is a l necessary precondition to a fair and meaningful adjudication and is in the public interest, for

! [t]he comprehensive, rather than the indi-vidual, treatment may indeed be necessary for quick effective relief. . . . To require separate judicial proceedings . . .

l would be to create delay where in the interest of public health there should be

1. 'Ihe IREP program provides for analyses of five nuclear pDwer plants.

21 -

prompt action. A single administrative proceeding . . . is constitutionally per-missible measured by the requirements of procedural due' process.

Weinberger v. Hynson, Westcott & Dunning, Inc. , 412 U. S . 609, 625 (1973) (citation omitted) (emphasis added).

II. _ PRINCIPLES OF RES JUDICATA AND COLLATERAL ESTOPPEL BAR RECONSIDERATION OF THE PHYSICAL AND POPULATION CHARACTERISTICS OF THE INDIAN POINT SITE A finding that the Indian Point site was safe was an essential pre-condition to the issuance of construction permits and operating licenses.1 "(T]he site and all its properties are among the most important ingredients of a finding of safety vel non." Power Reactor Development Co. v. International Union, 367 U.S. at 414. In 19 74, regarding existing sites including Indian Point, the NRC wrote:

population density always has been an important consideration in the process for determining the suitability of any proposed site and nuclear plant design. All presently approved sites have been found, in terms of population density as well as other c_onsiderations, to be acceptable by the AEC.

7 s

v D

w

1. See brthern Indiana Public Service Co. v. Porter County Gapter of the Izaak halton League, Inc_._, 423 U.S.12 (19 75), on remard, Porter County GaE ter of tne Izaak Walton Isacue, Inc. v. AEC, 533 F.2d 1011 (7th r Cir. ) , cert. denied , 429 U.S . 945 ( 19 76 ) ; Power Ibactor Developmnt Co. v.

International Union, 367 U.S. at 414; thw England Coalition on Nuclear Pollation v. NRC, 582 F.2d 87 (1st Cir.1978); tbrth Anna Enviromental Coalition v. NRC, 533 F.2d 655 (D.C.Cir.19 76) .

, i

i Press Release No. T-160, AEC Makes Public Staff Working Paper on Population Density Around Nuclear Power Plant Sites 1-2 (Apr. 9, 1974) (emphasis added) (Press Release).

Despite that, the principal purpose of this proceeding is "a final decision on the long-term acceptability on the Indian Point site," In re Consolidated Edison Co., 13 N.R.C. at 5, and the primary concern expressed "is the extent to which the population around Indian Point affects the risks posed by Indian Point." Id. at 6. .

In the absence of changes in the site or new facts relating to the site, elementary principles of res judicata and collateral estoppel bar readjudication of its suitability.

Indian Point's physical characteristics were subjected to extensive study. The NRC fully considered the site "in terms of population density as well as other considerations." Press Release at 1-2. Indian Point met the unchanged 1 requirements

1. 'Ihe exclusionary area aM the low population zone (LPZ) are established on the basis of the maximtm radiation dose to which an individual can safely be exposed in the event of a major credible accident aM enbody the idea of iMividual risk. 10 C.F.R. SS 100.3(a), .3(b),

.ll(a)(1), .11(a)(2). 'Ihe population center distance requirenent, id.

SS 100.3(c), .11(a)(3), incorporates the concept of societal risk. We In re Public Service Co. (Seabrook Station, Units 1 aM 2), 6 N.R.C. 33, 49'"~

' (1977), aff'd, 7 N.R.C.1 (1978) (citation cxnitted) (footnote cnitted)

( ("[P]rotecting individuals . . . is [acccmplisha3] through the dose limita-tions and other protective requirements applicable up to the LPZ bound-ary. . . . [T]he population center requirenent is impased to insure that the etnulative exposure doses to the population as a whole is kept within bounds in the event of a pastulated major accident.") . See also Statenent of Consideration, Beactor Site Criteria, 27 Fed. Reg. 3,509 (1962).

l  !

of the NRC's legal standards--the Siting Criteria.1 See generally North Anna Environmental Coalition v. NRC, 533 F.2d 655, 659 (D.C.Cir. 1976); Porter County Chapter of the Izaak Walton League, Inc. v. AEC, 533 F.2d 1011, 1016 (7th Cir.),

cert. denied, 429 U.S. 945 (1976).

The general population in the vicinity of Indian Point has not exceeded estimates. The distance of Indian Point from New York City has not changed.

4 Evidence of the actual cumulative population at various distances from the site was presented and considered prior to i

the issuance of construction permits and operating licenses for both plants. Substantial population increases were projected.

The AEC's Safety Evaluation Report in the Indian Point 3 construction permit proceeding contained the following projected cumulative population for 1980: 1 mile--2,100; 2 miles--20,900; 3 miles--59,520; 4 miles--78,800, 5 miles--

1. In re Consolidated Edison Co. (Indian Ibint, Unit 2), 3 A.E.C. at 151 (construction permit hearing) ("taking into consideration the site criteria contained in Part 100, the proposed facility can be constructed and operated at the proposed location without undue risk to the health and safety of the public"); In re Consolidated Eison Co. (Indian Point, Unit 3), 4 A.E.C. at 262 (construction permit hearing) ("taking into considera-tion the site criteria contained in 10 CFR Part 100, the proposed facility can be constructed and operated at the proposed location without undue r m to the health and safety of the ptblic"); see In re Consolidated Edison Co.

(Indian Ibint, Unit 2), 6 A.E.C. 751, 752 (1973) (authorization of full

~

power license), aff'd, 7 A.E.C. 323, 328 (1974); In re Consolidated Eison Co. (Indian Ibint, Unit 2), 7 A.E.C. 971, 973 (1974) (cenial of motion to reopen the record); In re Consolidated Eison Co. (Indian Point, Unit 3),1 '

N.R.C. 593, 599-601, aff'd and modified in part on other grounds, 2 N.R.C.

379, aff'd and vacated insofar as it modified the coolirn tower stipulation, 2 N.R.C. 835 (1975) (authorization of full Iower license) .

108,060, and lu miles--312,6 4 0. Safety Evaluation by the Division of Reactor Licensing, AEC, at 4-5, In re Consolidated Edison (Indian Point, Unit 3), No. 50-286 (Feb. 20, 19 69).

Virtually the same projections were made in the Indian Point 2 proceedings. For example, the 19 80 population projection at 10 miles was 325,000. In re Consolidated Edison Co. (Indian Point Unit 2), 3 A.E.C. at 145; see In re Consolidated Edison Co.

(Indian Point Unit 2), 5 A.E.C. 43, 45 (1972) (authorization of limited operation) (projected 19 80 population a,,t 15 miles--

670,000). The Safety Evaluation Report prepared prior to the authorization of the full power license for Indian Point 3 estimated that the population within a ten mile radius by 2010 would be more than 700,000. Safety Evaluation by the Directorate of Reactor Licensing, AEC, at 2.1-2.6, 2.8-2.9 (Sept. 21, 19 73).

According to updated population estimates, the population surrounding the Indian Point site has not exceeded the 1980 projections, let alone the projections for 2010.

Additionally, the Atomic Safety and Licensing Appeal Board found that the site was safe insofar as its physical characteristics were concerned. See, e.cL. , In re Consolidated Edison Co. (Indian Point, Units 1, 2, and 3), 6 M.R.C. at l

624. As far as the site is concerned, these proceedings were over five years ago.

l l

l -

The principle of res judicata applies to the Government as well as private parties. Sunshine Anthracite Coal Co. v.

Adkins, 310 U.S. 381, 402-03 (1940). See also Montana v.

United States, 440 U.S. 147, 157-58 (19 79) (collateral estoppel applies to the Government); Continental Can Co. , U.S. A. v.

Marshall, 603 F.2d 590, 59 6 (7th Cir. 19 79 ) . Res judicata

" bars future litigation between the same parties not only as to all issues actually raised and decided but also as to those which could have been raised." Angel v. Bullington, 330 U.S.

183, 186 (19 4 7) (citations omitted) ; accord, Continental Can Co., U.S.A. v. Marshall, 603 F.2d at 59 3-9 4 n.4. The NRC, as successor to the AEC's licensing and regulatory functions, 42 U.S.C. S 5814, is bound by the prior site determinations, see Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381,1 and i

there was notice and opportunity for.any interested persons to

1. See also United States v. Utah Ganstruction & Minirg Co. , 384 U.S.

394, 422 (1966) (citations crutted) ("then an administrative agency is actirg in a judicial capacity and resolves disputed issues of fact properly '

before it which the parties have had an cppartunity to litigate, the courts have not hesitated to apply res judicata to enforce repose."); In re Alabama Pow r Co. (Joseph M. Farley, Units 1 and 2), 7 A.E.C. 210, 211, renarded on other arounds, 7 A.E.C. 203 (1974) .

i

! l l

intervene in these proceedings.1 Consolidated Edison, as. licensee, was a party to the prior proceedings. The Authority, as holder of the license for Indian Point 3 and purchaser of that plant from Consolidated Edison, is in privity with Consolidated Edison.

In Power Reactor Development Co. v. International Union, 367 U.S. at 414 (citation omitted), the Supreme Court expressly rejected the argument that the Commission "may not authorize the construction of a reactor near a large population center without ' compelling reasons' for doing so." The Court deter-mined that

[t]he statute and regulations say nothing about " compelling reasons" . . . . Of course, . . . the problem of safety . . .

is most acute when a reactor, potentially d angerous , is located near a large city.

But the Commission found reasonable assurance . . . that the reactor could be operated at the proposed location, and that is enough to satisfy tne requirements of law. The Commission recognized that the site and all of its properties are among the most important ingredients of a finding of safety vel non. It considered the site along with all other relevant data.

Id. (emphasis added).

1. See Penn-Central Mercer & N&W Inclusion Cases, 389 U.S. 486, 505-506 (1968) ("[ Plaintiff) had an adequate op!rrtunity to join in the litiga-tion . . . . [T]he decision of the . . . court . . . precludes further

. . . adjudication of the issues upon which it passes."); Nader v. IRC, 513 F.2d 1045,1054 (D.C.Cir.1975); Easton Utilities Caum'n v. AEC, 424 F.2d 847, 851-52 (D.C.Cir.1970); Red River Broadcasting Co. v. FCC, 98 F.2d 282, 286-87 (D.C.Cir.), cert. denied, 305 U.S. 625 (1938) .

27 -

_ - - - - - . -- -m

-.g .

The public interest requires that licensees not be forced to engage in " endurance contests modeled after relay races"1 to again and again justify the safety of acreage. The policy con-siderations of " finality to litigation, prevention of needless litigation, avoidance of unnecessary burdens of time and expense . . . are as relevant to the administrative process as to the judicial" process. Painters District Council No. 38 v.

Edgewood Contracting Co., 416 F.2d 1081, 1084 (5th Cir. 1969);

see Montana v. United States, 440 U.S. at 153-54 (footnote omitted) (doctrines of finality foster "the conclusive resolu-tion of disputes" by avoiding "the expense and vexation attend-ing multiple lawsuits, [by] conserv[ing] judicial resources, and (by) foster [ing] reliance on judicial action by minimizing the possibility of in. consistent decisions").

When as here, there has been no change in the binding legal standards, " (nl o such policy considerations mitigate

~

against the application of collateral estoppel to facts pre-viously adjudicated . . . . Indeed, all the judicial policies behind collateral estoppel apply." Mosher Steel Co. v. NLRB, 568 F.2d 436, 440 (5th Cir. 1978) (citation omitted); see Continental Can Co., U.S.A. v. Marshall, 603 F.2d at 596-97.

1. Easton Utilities Canm'n v. AEC, 424 F.2d at 852 ("We do not find in statute or case law any ground for acceptire the premise that [adminis-trative proceedings] are . . . erdurance contests modeled after relay races in which the baton of proceedirg is passed . . . successively fran one legally exhausted contestant to a newly arriving legal strarger.") .

o .

The " litigation of issues at some point must come to an end." James Talcott, Inc. v. Allahabad Bank, Ltd., 444 F.2d

'451, 463 (5th Cir.), cert, denied, 404 U.S. 940 (1971).1 III. THE COMMISSION'S FAILURE TO ADHERE TO ITS EXISTING SITING CRITERIA CONSTITUTES ACTION WHICH IS ARBITRARY, CAPRICIOUS, AN ABUSE OF DISCRETION, AND A DEPRIVATION OF PROPERTY WITHOUT DUE PROCESS OF LAW A. The Siting Criteria are violated by the Commission's January Order.

There is nothing new about the Indian Point site. It was found suitable years ago. Bonds were issued, the plants were built. The Commission's af firmative finding of the safety of the site was a pre-condition for granting the licenses.

1. 'Ib proceed with this hearing in the absence of char:ged circum-stances also violates the guarantee of due process of law because it is inconsistent with the purposes of 10 C.F.R. S 2.206 (1981), governing petitions to institute proceedings to suspend, modify or revoke an operating license. "The purpose of 10 CFR S 2.206 is fully consistent with the principle that agency decisions must be accorded finality, once all administrative and judicial appeals have been exhausted." In re Ibrthern IMiana Public Service Co. (Bailly Generating Station, Nuclear 1), 7 N.R.C.

429, 431 (1978), aff'd, Porter County Q1 apter of the Izaak Walton Imague, Inc. v. NRC, 606 F.2d 1363 (D.C.Cir. 1979). Section 2.206 is not a

" vehicle for reconsideration of issues previously decided, or for avoiding an existing forum in which they more logically should be presented." In re Consolidated Edison Co. (Indian Point Station, Units tb.1, 2, and 3), 2 N.R.C. 173, 177 (1975). Yet, the Caumission has not indicated that "the standard [for petitions under 10 C.F.R. S 2.206] is being changed and not ignored," tnereby " assuring that it is faithful and not irdifferent to the l rule of law." CBS, Inc. v. FCC, 454 F.2d 1018,1026 (D.C.Cir.1971)

(footnote anitted) . If tne Commission is in fact changing the standard for petitions brought uMer 10 C.F.R. S 2.206, and not fashioning an impermiss-ible special rule for one case, it has not adequately explained the reasons

for the change. 'Ibe Canmission must "'do nere than enumerate factual l differences . . . it must explain the relevance of those differences to the purposes of the'" Ati

Inic Energy Act. CBS, Inc. v. FCC, 454 F.2d at 1026, qu3tira Melody Music, Inc. v. FCC, 345 F.2d 730, 733 (D.C.Cir.1965) .

l

The application of a new standard would be an abrupt departure from the Commission's longstanding, and congression-ally ratified, siting practices. Existing Siting Criteria--the generic or legislative rules promulgated by the Commission pursuant to congressional authority1--have the " force of law."2 Paul v. United States, 371 U.S. 245, 255 (1963); Joseph

v. CSC, 554 F.2d 1140, 1154 n.26 (D.C.Cir. 1977). The Commission "is bound not only by the precepts of its governing statute but also by those incorporated into its own regula-tions." Nader v. NRC, 513 F.2d 1045, 1051 (D.C.Cir. 1975); see Vitarelli v. Seaton, 359 U.S. 535, 539-40 (1959); Service v.

Dulles, 354 U.S. 363, 388 (1957); United States ex rel. Accardi

v. Shaughnessy, 347 U.S. 260, 266-67 (1954). The Siting Criteria are " regulations . . . attempt [ing] to accomplish the statutory mandate . . . 'to prescribe such regulation or orders 1

1. See e.g. tbrthern Indiana Public Service Co. v. Porter County Chapter oT~t'he Izaak Walton Irague, Inc. , 423 U.S.12; New Ehgland Coalition on Nuclear Pollution v. NRC, 582 F.2d 87; tbrtn Anna Environ-mental Coalition v. NRC, 533 F.2d 655. Congress may, of course, mandate that an agency use a particular procedure, thereby retoving an agency's i discretion. However, if an agency has the power to develop legal staM-ards, to fill "in the interstices of the Act" by rulemaking or by ad hoc adjudication, the choice of methM rests in the first instance within the discretion of the agency. SEC v. Chenery Corp., 332 U.S. at 202. Once an agency exercises this discretion aM proceeds by rulemakirg, another set of legal principles emes into play, and an agency is bound to follow its rules until changed or amended in a subsequent rulemaking.

2. Compliance with the Cmmission's regulatory guides aM working .

papers concerning site suitability is not required because they do not have the bindirq effect of regulations. Ibrter County Chapter of the Izaak Walton Isaaue, Inc. v. AEC, 533 F.2d at 1016 s n.5; York Comuttee for a Safe Envirorment v. NRC, 527 F.2d 812, 814 (D.C.Cir.1975) .

l l

. . . necessary . . . including standards and restrictions governing the design, location, and operation of facilities

. . . in order to protect health and to minimize danger to life or property.'" New England Coalition on Nuclear Pollution v.

NRC, 582 F.2d 87, 91 (1st Cir. 1978) (citation omitted).

Despite the existence of its Siting Criteria, the Commission has stated that its decision as to the "long term acceptability" of the Indian Point site will be based on "how extreme are the individual and societal risks . . . compared to the spectrum of risks from other operating stations." In re Consolidated Edison Co., 13 N.R.C. at 5-6. The January Order requires that the ASLB address the risk that "may be posed by serious accidents at Indian Point 2 and 3, including accidents not considered in the plants' design basis, pending and after any improvements" in the levels of emergency planning and safety which result from the Director's Order. Id. at 7 (emphasis added).

Thus, the adequacy of the site under the AEA having been determined, any reconsideration contravenes the Siting l Criteria. In clear conflict with the governing precepts of the i

AEA and the Commission's own siting regulations, the Commission seeks to reopen the issue of the adequacy of the Indian Point l

site. See Power Reactor Development Co. v. International Union, 367 U.S. a t 414.

l

b C .

Legislative rules , such as the Siting Criteria, are

" determinative of the issues or rights to which [they] are addressed," Pacific Gas & Electric Co. v. FPC, 506 F.2d 33, 38 (D.C.Cir. 1974), and, "until amended, are controlling alike upon the [ agency] and all others whose rights may be affected by the [ agency's] execution of them." CBS, Inc. v. United States, 316 U.S. 407, 422 (1942). The NRC cannot now say that its own Siting Criteria do not apply even if "in this case the Commission thinks that the 'public interest' requires a differ-ent interpretation . . . . The Commission's notion of the public interest cannot justify its failure to abide by its own rules and to act in a manner inconsistent with its own precedents." Teleprompter Cable Communications Corp. v. FCC, 565 F.2d 736, 742 (D.C.Cir. 1977).1 By finding that the Indian Point plants were properly situated, the NRC acted in accordance with the AEA and the regulations enacted pursuant to that statute. That finding was l a condition precedent to the granting of the operating l

1. Panhandle Eastern Pipe Line Co. v. FERC, 613 F.2d 1120,1135 (D.C.Cir. 1979), cert. ceniec, 449 U.S. 889 (1980) (footnote cmitted) ( "'Ihe fact that a regulation as written does not provide [an agency] a quick way l

to reach a desired result does not autrorize it to ignore the regulation or label it 'inapsupciate.'"); Boston Edison Co. v. FPC, 557 F.2d 845, 849 (D.C.Cir.) , cert. denied , 434 U.S. 956 (1977) (agency " acted arbitrarily l and abused its discretion in applying a standard contrary to existing regulations"); In re Pub. Serv. Co. (Seabrook Stations, Units 1 and 2), 6 N.R.C. at 50 n.TI (1977) ("Until amended by the Com:nission . . . we are bound to apply the (Siting Criterial according to its terms . . . .").

(

license.1 42 U.S.C. S 2235; Power Reactor Development Co. v.

International Union, 367 U.S. at 411. Indeed, even the Petition did not--as it could not--allege a f ailure to comply with the siting Criteria. It clearly states:

The NRC has never determined what the consequences would be of a so-called Class 9 accident-especially a core melt down with breach of containment-at the Indian Point site. Conformance with NRC regulations does not guarantee that such an accident will not occur; it is an attempt only to reduce the probability of having one.

Petition 1 5 (emphasis added).

The Siting Criteria establish the Commission's previous yet still current, indeed, only, standards that establish acceptable levels of individual and societal risk.

Essential to the Siting Criteria is protection from a major accident, 10 C.F.R. S 100.11(a)--a major accident but not

1. i.bdergirded by the reasonable assurance that the public health and safety can and will be protected, Power Beactor Develognent Co. v.

International Union, 367 U.S. 396; Nader v. NRC, 513 F.2d at 1052, an

"[a}bsolute[ly) risk-free sitirg is similar to other absolute p:sitions and arguments that have been rejected by the courts." tbrth Anna Environtental Coalition v. NRC, 533 F.2d at 665 (citations anitted) . As tne Court of Appeals for the District of Columbia has explained:

As a precordition to grant of a license for operation i of a nuclear facility, the Atomic Energy Act i

explicitly requires a Camtission finding that the licensed facility will afford " adequate orotection to the health and safety of the puolic." "he Conrassion has long interpreted this provision as a demand for

" reasonable assurance" of that protection, and the Supreme Court in its B3wer Beactor decision has squarely sustained that administrative construction.

Nader v. NRC, 513 F.2d at 1052 (enphasis added) (footnotes anitte?3 i

F D e an accident so unlikely to occur that it is beyond the realm of reason.1 It is in that context that the Siting Criteria " strike a balance between site isolation and proximity to load (popula-tion) centers." D. Bunch, Metropolitan Siting--A Historical Perspective 2 (NUREG-0478) (19 78) (hereinafter Bunch).2 In another departure from its Siting Criteria, the Commis-sion indicates that its ultimate determination will depend upon a comparison of the " risks posed by Indian Point Units 2 and 3 with the range of risks posed by the other nuclear power plants licensed to operate by the Commission." In re Consolidated Edison, 13 N.R.C. at 8. The AEA does not speak in terms of relative levels of safety among nuclear facilities. The AEA does speak in terms of unconditional standards which must be met by every licensee. Thus, even though a study'of the comparative safety of nuclear power plants may be useful for other regulatory purposes, the Commission seeks to do more.

1. 'Ihe Siting Criteria require that " reactors be so designed that no design basis accident will result in calculated offsite doses exceeding specified guideline values . . . (which) are well below levels at which serious injury or death would be expected to occur." SECY-79-594, Class 9 Accident Considerations, Ehclosure 1, at 1 (1979). The size and distance fran the site of the exclusion area, the LPZ, and the population center distance are based upon the calculation of the radiation dose exposure resulting frcra a major credible accident.

2. See_ Proposed Extension of AEC Indemnity Iegislation, Hearings before the Subcom. on Legislation of the Joint Can. on Atomic Energy,

• 89th Cong. ,1st Sess. (19 65) (Statenent of James T. Ramey, Commissioner, AEC), reprinted in Bunch at 32 ("Under the site criteria . . . provision is made to balance . . . engineered safeguards in relation to the distance between reactor and population centers.").

Such a study can provide no legal basis for determining whether the Indian Point site complies with the requirements of the s tatute as construed in the Siting Criteria.

B. The application of existing Siting Criteria to existing plants has been ratified by Congress.

The Siting Criteria were "a contemporaneous construction by those . . . presumably intimately familiar with the legislative history and who (were] charged with enforcement of the" AEA. Shell Oil Co. v. Kleppe , 4 26 F .Supp. 89 4, 9 01 (D.Colo. 1977), aff'd sub nom., Shell Oil Co. v. And rus , 591 F.2d 59 7 (10th Cir. 19 79), aff'd, 446 U.S. 657 (1980)

(citations omitted). The Joint Committee on Atomic Energy (JC AE) was established to keep Congress "in constant touch with what was happening in this unfolding area of industrial applications of atomic energy." Siegel v. AEC, 400 F.2d at 783. In Power Reactor Development Co. v. International Union _,

367 U.S. at 4 09, the Supreme Court considered this f act significant when finding congressional ratification of the AEC regulations there at issue. Until abolished by the Energy Reorganization Act of 19 74, the JCAE monitored the NRC's siting policy and its balancing of engineered safety features with the site.1 l

1. See, e.c. , Letter fran W.H. Libby, Ictirg Chairman, AEC, to

• Senator IE~rke dekenlooper (March 14, 1956), reprinted in Bunch at 25; Proposed Extension of AK Indemnity Iagislation, HearirgTBefore the Subcamn. on Ingislation of the Joint Cann. on Atanic Energy, 89th Cong. ,

1st Sess. (1965) (Statement of James T. Ramey, Canmissioner, AK),

l l

When Congress enacted the Energy Reorganization Act of 1974, it restructured nuclear regulation. However, it did not alter the approach of the Siting Criteria.

Last year, Congress directed the NRC to promulgate siting regulations that "shall specify demographic criteria for facility siting, including maximum population density and population distribution for zones surrounding the facility without regard to any design, engineering, or other differences among such facilities." Act of June 30, 1980,, Pub.L.No.96-295, S 108, 94 Stat. 783. Simultaneously, Congress, aware of then existing policy,1 ratified then-existing Siting Criteria insof ar as then-existing facilities were concerned. It specifically exempted from any new siting criteria, construc-tion permits applied for prior to October 1, 1979. Id.

S 108(b). By requiring the NRC to promulgate new siting rules and to apply them only prospectively, Congress removed any discretion to apply them retroactively, whether formulated in the NRC's first hybrid investigatory-adjudicatory proceeding, or not.

reprinted in Bunen at 32. .

1. See H. Conf. Rep. Ib. 96-1070, 96th Cong., 2d Sess. 24-25, reprinted in 3 U.S. Code Cbrg. & Ad. News 2267-68 (1980); Rep rt of the Siting PolTcy Task Force (NUR m-0625) (1979).

C. The retroactive application of new siting standards would violate the due process clause.

The Commission cannot impose "new liability . . . for past actions . . . taken in good faith reliance" on the NRC's determination that the Indian Point site was a safe location.

NLRB v . Bell-Aerospace Co. , 416 U.S. 267, 295 (1974). The licensees, in reliance upon the. Commission's prior decisions, have procured and expended substantial sums of money for the construction, and, in the case of the Authority, the purchase

~

of Unit 3.1 As the Second Circuit has warned, a decision branding as " unfair" conduct stamped " f air" at the time a party acted, raises judicial hackles . . . . And the hackles bristle still more when a financial penalty is assessed for action that might well have been avoided if the agency's changed disposition had been earlier made known, or might even have been taken in express reliance on the standard previously established.

[T]he problem of retroactive application has a somewhat different aspect in cases

! not of first but of second impression,

! where an agency alters an established rule r defining permissible conduct which has been l

generally recognized and relied on through-out the industry that it regulates.

NLRB v. Majestic Weaving Co., 355 F.2d 854, 860 (2d Cir. 1966) i

1. See United States v. Caceres, 440 U.S. 741, 752-53 (1979) (due process claun triggered wnen a Ierson has relied u;cn an agency rule and suffers substantial detriment because of its violation) .

i j --_ - _ _

(citations omitted) (emphasis added).1 The extent of reliance by the licensees and their inves-tors on the Commission's prior determination is substantial, self-evident, known to the public and to the Commission, and a subject of judicial knowledge.2 As the court in Shell Oil Co.

v. Kleppe, 426 F.Supp. at 908, stated:

I

[T]he Government cannot assert that the very oil shale claims it had encouraged are not valid. The reversal of the original intention of the Interior Department and of Congress requires application of estoppel against the Government. . . . Moreover, where an established rule has long been relied upon by investors, an administrative agency should not reverse its position on a retroactive basis.

Id. at 908 (citations omitted).3 l

1. See Retail, molesale & Department Store Union v. NLRB, 466 F.2d 380, 390 (D.C.Cir.1972) (retroactive application determined by "whether the . . . case is one of first impression"; "whether the new rule repre-sents an abrupt departure from well established practice or merely attempts to fill a void in an unsettled area of the law"; "the extent to which the .

party . . . relied on the former rule"; "the degree of the burden which a retroactive order imposes"; and "the statutory interest in applyirg the new rule").

2. Ibcuments reflecting the financial statements of Consolidated Edison and the Authority, which detail the financirg of the Indian Point units, are on file with the NRC. "It is . . . well established that a regulatory agency has the right to take official notice of reports filed with it by a regulated c mpany." P. Saldutti & Son, Inc. v. United States, 210 F.Supp. at 313; see Market Street Ry. v. Failroad Cmm'n, 324 U.S. at 561-62; Wisconsin v. FPC, 201 F.2d at 186.

3. In Shell Oil Co. v. Kleppe, 426 F.Supp. at 903, the court held that the Department of Interior could not retroactively apply a new stand-- '

ard to determine the validity of oil shale claims because that agency through public statements of its officials and through its rulirgs "ac-tively encouraged Westerners to invest in Colorado's oil shale deposits,"

an investment "which had been scorned by prudent persons at the turn of the 1

l l

= , - . , , - - - -

When Congress enacted the AEA, the United States entered into a partnership with the states and private industry to promote and to develop nuclear power for commercial use.1 See Duke Power Co.' v. Carolina Environmental Study Group, 438 U.S.

59, 63-65 (1978). The AEA embodies this deliberate policy choice. The Price Anderson Act, 42 U.S.C. S 2210, is a clear cut congressional acknowledgement that, even though nuclear power is not risk free, the public interest requires its development as an energy scurce. This Act incorporates the

" dual purpose of ' protect [ing] the public and . . . encouraging the development of the atomic energy industry.'" Duke Power Co. v. Carolins Environmental Study Group, 438 U.S. at 64 (citation omitted).

The AEA and the Siting Criteria embody this policy decision. Until irrational fears escaped from Three Mile Island, this proceeding wou'.d have been unthinkable. To apply new rules or, as is true in this case, no rules at all, to plants previously licensed at an unchanged site previously ruled safe is unconstitutional, l

i l

i century."

1. The history of the siting policy indicates that "[t]o accconplish the policy towards peaceful uses of nuclear energy, broad participation on the part of the utility inSustry was necessary." Bunch at 1. 'Ibe shift in policy to balancing site isolation with containment was deemed necessary in order for nuclear power to be feasible for private utilities. Id .

t

IV. THE CONSTITUTION REQUIRES THAT THE COMMISSION ESTABLISH COMPELLING REASONS TO JUSTIFY A SHUTDOWN OF INDIAN POINT Consolidated Edison, a privately owned public utility, is a constitutionally protected person. Its rights arise under the fifth amendment. See Kaiser Aetna v. United States, 444 U.S. 164 (1979). Its duty is to protect the rights of its security holders. Regarding its security holders, the Authority has the same obligation.

Additionally, the Authority as a state governmental agency has a statutory duty to furnish inexpensive electricity to "the metropolitan transportation authority, . . . the New York City transit authority, the port authority of New York and New Jersey, the City of New York, the State of New York (and] other public corporations." Power Authority Act, N.Y. Pub. Auth. Law .

SS 1001, 1005 (McKinney Supp. 1980-81).1 Operation of Indian

1. Among the ptblic bodies served by Indian Point 3 are 39 cities, i towns, and villages, 2d school districts, 8 housing authorities, and 2 water districts. Ibwer Authority of the State of New York, Meeting New York's Energy Needs . . . Past, Present and Future 30 (1980). A state's determination of what is in the public's interest is a legitimate exercise of governmental power. Compare the wards of Justice Rehnquist writing for the majority in National Imue of Cities v. Usery, 426 U.S. 833, 855 (1976), " Congress may not exercise that power so as to force directly upon the States its choices as to how essential decisions regarding the conduct of integral governnental functions are to be made," with the wrds of Justice Willian O. Dat*31as:

A State's project is as much a legitimate govern-mental activity whether it is traditional, or akin to private enterprise, or conducted for profit. ... A State may deen it as essential to its own econcrny that it own and operate a railroad, a mill, or an irrigation systen as it does to own ard operate bridges, street lights, or a sewage disposal plant.

Point 3 is crucial to the Authority's capacity to meet its peakload demand and its reserve margin required by the New York Power Pool, and to produce low cost electricity.

The State of New York, pursuant to its powers to protect the public health, safety, and welfare of its people, has declared that "the public interest requires that (the Authority] participate in the generation of supplemental electric power and energy by . . . nuclear means." Power Authority Act, N.Y. Pub. Auth. Law 5 1001 (McKinney Supp. 1980-81).1 In our federal system, states share power with the federal government, and a state's interest is a fundamental interest protected from commerce clause infringement or impairment by What might have been viewed in an earlier day as an improvident or even dangerous extension of state activities may today be desned indispensable. . . .

(Alny activity in which a State engages within the limits of its police power is a legitimate governmental activity.

New York v. Uniued States, 326 U.S. 572, 591 (1946) (Ecuglas, J. ,

dissentirg) (citation cmitted) . See also New State Ice Co. v. Liebnann, i

285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) ("To stay experrnenta-

tion in things social and economic is a grave responsibility . . . . It is I one of the happy incidents of the federal systen that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and econanic experiments without risk to the rest of the country.").

1. See also Power Authority Act, N.Y. Pub. Auth. Law S 1001-a (McKinney supp. 1980-81) (" extraordinary circumstances, including excessive '

I costs, shortages of supply, and the inflated price of fuel threaten the capacity to provide utility service essential to the continued safety, health, prosperity an3 well-being of the people of the metro;olitan area of the city of New York") .

i l

4 0 e the tenth amendment. Pearce v. Wichita County, Wichita Falls, Hospital Board _, 590 F.2d 128, 132 (5th Cir. 19 79); Usery v.

Allegheny _ County Institution District, 544 F.2d 148, 155 (3d Cir. 1976), cert. denied, 430 U.S. 9 46 (1977); Marshall v.

Delaware River & Bay Authority, 4 71 F.Supp. 8 86, 892 (D. Del.

19 79 ).1 Federal legislation that infringes upon state sovereignty is subjected to strict scrutiny. See National League of Cities v. Usery, 426 U.S. 833, 849 (1976). The tenth amendment is .

an affirmative limitation on the exercise of (congressional) power akin to other commerce power affirmative limitations contained in the Constitution. Congres-sional enactments which may be fully within the grant of legislative authority con-tained in the Commerce Clause _may nonethe-less be invalid because found to offend against the right to ' trial by jury contained in the Sixth Amendment, or the Due Process Clause of the Fif th Amendment.

i

1. Cf. , Buckley v. Valeo, 424 U.S.1, 25 (19 76) (citation onitted)

(first a:tiiridment) ("In view of the fundamental nature of the right to asmciate, govermental ' action which may have the effect of curtailirg the freedon to associate is subject to the closest scrutiny.'"); Shapiro v.

'Ihompen, 394 U.S. 618, 634 (19 69) (citations onitted) (emphasis in original) (right to travel) ("any classification which serves to penalize i the exercise of (a constitutional] right, unless shown to be necessary to promote a _ compelling governmental interest, is unconstitutional"); United States v. Jackson, 390 U.S. 570, 582 (1968) (citations onitted) ("Whatever might be said of Congress' objectives (in the Federal Kidnapping Act), they j cannot be pursued by means that needlessly chill the exercise of basic l constitutional rights [includire right to jury trial) . . .; the question is l

whether that effect is mnecessary ard therefore excessive.").

Id. at 841 (citations omitted).1 As the Supreme Court has consistently recognized, " [ t] he Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States." National League of Cities v. Usery, 426 U.S. at 844, quoting Texas v. White, 74 U.S. (7 Wall.) 700, 725 (1869). " (N] either government may destroy the other nor curtail-in any substantial manner the exercise of its powers." Metcalf & Eddy v. Mitchell, 269 U.S.

514, 523 (1926). .

The Authority acts with the state's power. In some respects its powers exceed those of the federal government, in others its powers are subordinate, in others they are co-equal. In its sovereign capacity, the Authority delivers services necessary to the health, safety, and welfare of the citizens of the State of New York. In addition, the Authority

1. Mr. Justice Rehnquist, who wrote for the majority in National Iaaque of Cities c. Userv, 426 U.S. 833, had elaborated upon this concept more fully in his dissenting opinion in Fry v. United States, 421 U.S. 542, 552-53 (1975) (citations omitted):

[T]he Tenth Amendment 'is not without significance'

... . [I]t is useful to explore further the situation of an individual confronted with Commerce Clause regulation. . . . (A]n individual wir attacks an Act of angress, justified urder the Ccrnmerce Clause, on the ground that it infrirges his rights under, say, the First or Fifth Amerdment, is asserting an affirmative constitutional defense of his own, one which can limit the exercise of power which is otherwise expressly delegated to Corgress.

That the . . . claim . . . may succeed . . . is well established.

(and Consolidated Edison) enters into contractual relations, through issuance of bonds, upon which individuals and businesses--constitutionally protected persons--throughout the nation rely.1 Despite the NRC's previous rulings regarding the site, this proceeding threatens to impair those contracts by depriv-ing them of security and a revenue source. Thus, while "(i)t is one thing to recognize the authority of Congress to enact laws regulating individual businesses necessarily subject to the dual sovereignty of the government of the Nation and of the State in which they reside [,] [ilt is quite another to uphold a similar exercise of congressional authority directed, not to private citizens, but to the States as States." Id. at 845; cf. Kaiser Aetna v. United States, 444 U.S. at 174 (if con-gressional regulation of private property constitutes a "taking", just compensation is due). Because of this difference, the Court in National League of Cities refused to apply the Fair Labor Standards Act to municipalities despite finding a "sufficiently rational relationship to commerce to

1. "It is of the essence of sovereignty to be able to make contracts l

and give consents bearing u;on the exertion of governmental power. . . .

l 'Ihe reservation to the States by the % nth Amendment protected, and did not destroy, their right to make contracts and give consents where the action muld not contravene the provisions of the Federal Constitution. . . . The State is free to make contracts with irdividuals and give consents upon l which the other contracting party may rely with respect to a particular use of governmental authority." United States v. Bekins, 304 U.S. 27, 51-52 (1938).

validate the application of the overtime provisions to private employers." Id. at 849 (emphasis added).1 V. AN ADVERSE RULING FROM A READJUDICATION OF THE INDIAN POINT SITE WOULD RESULT IN AN IMPAIRMENT OF CONTRACT AND A TAKING OF PROPERTY WITHOUT JUST COMPENSATION GUARANTEED BY THE FIFTH AMENDMENT The State of New York declared that "the public interest requires that [the Authority) participate in the generation of supplemental electric power and energy by . . . nuclear means." Power Authority Act, N.Y. Pub. Auth. Law S 1001 (McKinney Supp. 1980-81). The NRC granted a construction permit. The Authority and Consolidated Edison relied upon that permit.2 The NRC granted an operating license. The Authority and Consolidated Edison relied upon that license. The Authority issued $1,460,000,000 worth of bonds in part to raise funds for the purchase of the plant from Consolidated Edison

1. Pry v. United States, 421 U.S. 542 (1975), is not contrary. As interpreted in National League of Cities v. Usery:

'lhe enactment at issue (in Fry] was occasioned by an extre:nely serious problem which endangered the well-being of all the conponent parts of our federal systen and which only collective action by the National Government might forestall. '1he means selected were carefully crafted so as not to-interfere witn the States' freedon beyond a very limited, specific period of time.

tutional Inacue of Cities v. Usery, 426 U.S. at 853 (enphasis added) . .

2. Interference with reliance interests may constitute a taking. See Agins v. City of Tiburon, 447 U.S. 255, 262-63 (1980); Kaiser Aetna v.

United States, 444 U.S. 164, 174-75 (1979).

t _ - _ _ _ _ _ _

and for its continued operation. Power Authority of the State of New York, Financial Statements 11 (Dec. 31, 1980). The Authority pledged its revenues as security and undertook the generation of low cost nuclear energy for the people of the City and State of New York. Id . a t 8 . Now, the Authority furnishes electricity to "the metropolitan transportation authority, . . . the New York city transit authority, the port authority of New York and New Jersey, the city of New York, the state of New York (and) other public corporations." Power Authority Act, N.Y. Pub. Auth. Law S S 1001,100 5; see id .

S 1001-a. Consolidated Edison produces, purchases, and distributes power to citizen consumers.

Lighting the lamps of New York requires capital, massive expenditures of money from private persons who purchase the stocks and bonds of Consolidated Edison and the bonds of the Authority. Yet, as an afterthought, without any change of facts, the Commission has decided that a site which it has adjudicated to be " safe" may be " unsafe." This is the very l

kind of governmental conduct that the impairment of contract, due process, and taking without just compensation clauses were designed to prevent.1 Constitutional guarantees safeguard i

i

~

1. 'Ihe underlying protection of property anS of investors' expectations contained in the contract clause applies to the federal gwernment through the due process clause of the fifth ameniment. 'Ihorpe

v. Ibusina Authority of Durham, 393 U.S. 268, 277 n. 31 (1969) quoting Lynch v. United States, 292 U.S. 571, 579 (1934) ("Although the constitutional prohibition of the impairment of contracts . . . applies

contract-based rights against government impairment because national economic development totally depends upon adequate, reliable, and dependable credit markets in which money can be raised for investment purposes.1 See y me Building & Loan Association v. Blaisdell, 290 U.S. 398, 427 (1934). The Authority issued its bonds for the purchase and operation of Indian Point Unit 3. Power Authority of the State of New York, Financial Statements 8, 11, (Dec. 31, 1980) (General Purchase Bonds, Series C, E, F, G, and H). Private citizens and their institutions purchased the bonds and the Authority is obligated to protect them. Power Authority Act, N.Y. Pub. Auth. Law SS 1010(6)-(8) (McKinney 1970). All of this "as done in only to the States, ' [vlalid contracts are property, whether the obligor be a private individual, a municipality, a State or the United States. Rights against the United States arisirg out of a contract with it are protected by the Fifth Amendment.'"); John McShain, Inc. v. District of Columbia, 205 F.2d 882, 884 (D.C.Cir.) ("a measure of protection against contract impairment by the federal goverrment is given by the Fifth Amendment"),

cert. denied, 346 U.S. 900 (1953); see Larionoff v. United States, 533 F.2d IT67,1179 (D.C.Cir.1976) (citations omitted) ("[s)ince contractual rights against the government are property interests protected by the Fifth Amendment, Congressional power to abrogate existiry government contracts is narrowly circumscribed"), aff'd, 431 U.S. 864 (1977); Hepburn v. Griswold, 75 U.S. (8 Wall.) 603, 623 (1869), overruled on other grounds, Legal 'Iender Cases, 79 U.S. (12 Wall.) 457, 553 (1870) (wnile express pronibition that no state shall pass any law impairirg obligation of contracts is not applicable to the federal goverrment "we cannot doubt that a (federal] law not made in pursuance of an express power, which necessarily and in its direct operation impairs the obligation of contracts, is inconsistent with the spirit of the Constitution").

1. Cf. Enshwiller, Some Investors Shun Nuclear-Powered Utilities, JeocardizTIn Funds to Buila New Atanic Plants, Wall St.J. , Nov. 20, 1980, ,

at 56, col.1 ("the erosion [of the bond market for utilities involved in nuclear power) is eatirg at the foundations of the nuclear industry. If it spreads, it could do more to foreclose a future for atan-powered electric-ity in this country than all the efforts of nuclear opponents cmbined.") .

reliance upon the Commission's affirmative finding of the appropriateness of the Indian Point site.

The protections underlying the Contract Clause " impose some limits upon the power of . . . [ government) to abridge existing contractual relationships, even in the exercise of its otherwise legitimate police power." Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 242 (1978) (emphasis in orig-inal). Here, as in United States Trust Co. v. New Jersey, 431 U.S. 1, 19 (1977) (emphasis added), an unconstitutional impair-ment of contract would occur if NRC action " totally eliminated an important security provision." See Power Authority of the State of New York, General Purpose Bonds, Series E, Official Statement at 12 (Sept. 21, 1976) ("The General Purpose Bonds will be secured by a pledge of . . . the net revenues of . . .

Indian Point 3 . . . ."). There the Supreme Court found it unnecessary to resolve the extent of " financial loss the bondholders suffered . . . because the State . . . made no effort to compensate the bondholders for any loss sustained by the repeal." Id . (footnote omitted).

Without changed circumstances (new physical or population characteristics at the site), a shutdown of these plants based upon the previously considered attributes of the site would operate as a " substantial impairment of [the licensees']

contractual relationship [s]." Allied Structural Steel Co. v.

Spannaus, 438 U.S. at 244 (footnote omitted) (state law impaired contractual obligations because it retroactively modified company's payment obligations under pension plan and company's reliance on the absence of any previously imposed state obligations was vital). While the Commission cannot relinquish its duty to protect the public health and safety, there are limits on the exercise of this power.1 In United States Trust Co. v. New Jersey, 431 U.S. at 28-30, the Court concluded that the harm incurred by the bondholders could not be justified by the state's claim of public benefit in advanc-ing the goals of "[m] ass transportation, energy conservation, and environmental protection" because the state had not shown that the repeal was " essential" to further these public interests.

If the NRC were to determine that the plant location should cause a shutdown at Indian Point,2 there would be a

1. See Atlantic Coast Line R.R. v. City of Goldsboro, 232 U.S. 548, 559 (1914); Stone v. Mississippi,101 U.S. 814, 817 (1880) ("(1]egislature ca: mot bargain away the police power") .

2. See PrC v. Foyal Milling Co. , 288 U.S. 212, 217 (1933) (PrC erred in suppressing use of trade names for ccmpany's violation of the relevant statute because the trade names were " valuable business assets . . . the destruction of which probably would be highly injurious and should not be ordered if less drastic means will acccuplish the same result"); New Orleans Gas Co. v. Iouisiana Light Co.,115 U.S. 650, 673 (1885) (tne police power does not justify elimination of exclusive franchise by a state constitutional amendment; "[t]he rights and franchises . . . can be taken by the public, upon just compensation to the cmpany"); Q1urchill Tabernacle v. FCC, 160 F.2d 244, 247-48 (D.C.Cir. 1947) (citations cmitted)

("(V)aluable rights and investments made in reliance on a license . . .

should not be destroyed except for the most empelling reasons. . . . [I]n ordinary fairness [an agency) owes the duty to exhaust all possible avenues of ccmpliance with the Corgressional purpose before requiring emplete

compensable "taking" under the fifth amendment.1 " [ P] roperty may be regulated to a certain extent, [but] if regulation goes too far it will be recognized as a taking." Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922).2 When this seemingly absolute (fifth amend-

• ment) protection is found to be qualified by the police power, the natural tendency of human nature is to extend the qualifica-tion more and more until at last private property disappears,. But that cannot be accomplished in this way under the Consti-tution of the United States.

Id. The consitutional bar against regulatory taking has. been reiterated by the Supreme Court in its discussions of the legal principles underlying the just compensation clause.3 cestruction or the private interest.") .

1. United States v. Carmack, 329 U.S. 230, 242 (1946) ("when the Federal Goverment thus taxes for a federal public use the in3ependently held and controlled property of a state or of a local subdivision, the Federal Goverment recognizes its obligation to pay just ccmpensation");

California v. United States, 395 F.2d 261, 263 (9th Cir. 1968) (footnote emitted) ("tna Fifth Amendment protects the property of the State frcra .

appropriation by the Uttited States without 'just ccmpensation'") .

2. In Pennsylvania Coal, the Court held that when the claimant had sold property which reserved undergrouM mineral rights and a subsequently enacted Pennsylvania law which prohibited the mining of coal that caused the subsidence of a residence had the effect of destroying the clainant's expectation of use of these reserved rights, the law constitutes a ccmpensable regulatory "taking." Pennsylvania Coal Co. v. Maron, 260 U.S.

at 414-15.

3. See, e.g. , United States v. Central Eureka Mining Co. , 357 U.S.

155,168 (1958T (citations amitted) (" action in tne form of regulation can so diminish the value of property as to constitute a taking"); Pu:npelly v.

Green Bay & Mississiopi Canal Co., 80 U.S. (13 Wall.) 166, 177-78 (1872)

(enphasis added) (goverment cannot destroy property "value entirely, . . .

inflict irreparable and permanent injury to any extent . . ., in effect, subject it to total destruction without making any canpensation, because,

A shutdown of the Indian Point units would effect a taking because of the economic impact upon the licensees and the

" interference with reasonable investment-backed expectations."

PruneYard Shopping Center v. Robins, 447 U.S. 74, 83 (1980);

see Penn Central Transportation Co. v. New York City, 438 U.S.

104, 124 (1978). Kaiser Aetna v. United States, 444 U.S. at 179, involved mere statements rather than the orders of a commission. Even so, the Supreme Court wrote that while mere statements of government officials "cannot ' estop' the United States [from altering its regulatory policies, theyl can lead to the fruition of a number of expectancies embodied in the concept of ' property' - expectancies that . . . the Government must . . . pay for [the] property."

A shutdown in any way based upon the unchanged character-istics of Indian Point would deprive the licensees of the only reasonable use of the property;l it would not merely extinguish in the narrowest sense of that w rd, it is not taken for the public use").

1. In Penn Central, a different result would have been reached if the site was rendered ecornaically unviable by the larxtrark designation. 'Ihe Court stated:

We emphasize that gur baldirg today is on the present record, which in turn is based on Penn Central's present ability to use the Terminal for its intended purp ses and in a gainful fashion. The city conceded l at oral agrument that if appellants can demonstrate at s:me pint in the future that circumstances have so charged that the Terminal ceases to be "econcred-

• cally viable," appellants may obtain relief.

Penn Central Transprtation Co. v. New York City, 438 U.S. at 138 n.36; see

one of several alternative uses. Id . a t 137.1 See Pennsyl-vania Coal Co. v. Mahon, 260 U.S. 393 (a state law retro-actively destroying the claimants' expectation of the use of the reserved underground mineral rights constituted a com-pensable regulatory taking).2 Fundamental principles require that any such loss be borne by the government on behalf of the public. "The Fifth Amendment's guarantee . . . [is] designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by tne public as a Benencon v. United States, 548 F.2d 939, 948 (Ct.C1.1977) (goverrment "so restricted ani interfered with plaintiffs' use of their property as to constitute a canplete takirg of plaintiffs' fee interest") .

1. Much state regulation of land-use deprives owners of the most beneficial use of their land. Natwithstandirg the individualized harm suffered, the pecperty so regulated can be put to another econonically viable use. See coldblatt v. Hengstead, 369 U.S. 590 (1962) (safety regulation prohibitirg excavation below a certain level); Corieb v. Ebx, 274 U.S. 603 (1927) (requirement that buildirgs be set back fran street line); Village of Euclid v. Pmbler Bealty Co., 272 U.S. 365 (1926)

(prohibition of industrial use); Welen v. Swasey, 214 U.S. 91 (1909)

(height restriction on buildings). However, even in the zoning context,

"[t]he application of a general zoning law to a particular property effects l

a takirg if the ordinance does not substantially advance legitimate state interests . . . or (if it] denies an owner econcmically viable use of his land." Acins v. City of Tiburon, 447 U.S. 255, 260 (1980) (citation l omitted). See also Nectow v. Cambridge, 277 U.S.183 (1928) (zoning law as applied to individual's property was violative of fourteenth ameniwnt).

2. Other cases have recognized " takings" when the governnent action resulted in the destruction of use and enjoyment of private property for a greater public benefit. United States v. Dickinson, 331 U.S. 745, 750-51 (1947) (property flooded because of government dam project); United States

, v. Causby, 328 U.S. 256, 261-62 (1946) (frequent low altitu$e flignts of l Army and Navy aircraft over property); Portsnouth Harbor Lan3 & Hotel Co.

v. United States, 260 U.S. 327, 329-30 (1922) (military installations!

repeated firirg of guns over clairant's land).

whole . . . .

" Armstrong v. United States, 364 U.S. 40, 49 (1960). As the Supreme Court has cautioned, even "a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the consti-tutional way of paying for the change." Pennsylvania Coal Co.

v. Mahon, 260 U.S. at 416.

VI. THE COMMISSION LACKS JURISDICTION TO CONDUCT THE HYBRID INVESTIGATORY-ADJUDICATORY PROCEEDING WHICH CONSTITUTES AN UNCONSTITUTIONAL SINGLING OUT OF THE INDIAN POINT LICENSEES Although the Commission has the power to investigate, 42 U.S.C. S 2201(c), and adjudicate, id. 5 2239, the Commission lacks jurisdiction to hold a hybrid adjudicatory-investigatory hearing. In its January Order, the Commission directed the ASLB to conduct a proceeding "using the full procedural format of a trial-type adj udication, including discovery and cross-examination." In re Consolidated Edison Co. ,13 N.R.C. at S (footnote omitted). In further explanation of the procedural l format, however, the Commission indicated that it was to be i

" investigative" in nature. September Order at 1.

According to that footnote, the proceeding is not "'on the record'" because it is not mandated by the AEA. Id . Because it is not mandated by the AEA, the Commission has substantially relaxed the procedural protections of 10 C.F.R. Part 2. On the ,

basis of this tautology, even restraints on ex parte contacts 53 -

l

will apply only to the ASLB but not to the Commission.1 Thus, inevitably, the proceeding will begin in procedural quick-sand. There will be no burden of persuasion and the ASLB "will not be bound by the provisions of 10 C.F.R. Part 2 with regard to the admission and formulation of (contentions not based on allegations in the petition)" and to " establish whatever order of presentation it deems best suited to the proceeding's investigative purposes," without being bound by the provisions of Part 2. d. at 2. Adding a Kafkaesque quality, the ASLB may request even further relaxation of the NRC's rules if it deems such action necessary. Id . Thereafter, there will be ne decision. Instead, the ASLB will make recommendations and forward the record to the Commission, "for the final agency action on the merits of the proceeding." In re Consolidated Edison Co., 13 N.R.C. at 6.

Congress authorized the Commission, in furtherance of its investigatory powers, "to administer oaths and affirmations, and by subpena (sic] to require any person to appear and testify, or to appear and produce documents." 42 U.S.C.

I S 2201(c). Congress authorized the Commission to conduct adjudicatory hearings for the " granting, suspending, revoking, or amending of any license," id. S 2239, pursuant to the APA.

1. Comoare SEC v. Wheeling Pittsburah Steel Corp. , 648 F.2d 118,130 (3d Cir.1981) (agency " order must be supported by an indeperdent agency l

determination not one dictated or pressured by external forces") .

l l

l

Id. S 2231. The Commission promulgated 10 C.F.R. Part 2 which

" governs the conduct of all proceedings" for "[g] ranting, suspending, revoking, amending, or taking other action with respect to any license." 10 C.F.R. S 2.1 (1981) (emphasis added). Yet, no where in the statute or the regulations is the unique, specially-fashioned hybrid hearing contemplated by the January Order authorized.

The proceeding is not a statutory investigation. The January Order states that the Commission will take final agency action at the close of this proceeding. In re Consolidated Edison Co . , 13 N.R.C. at 6. The proceeding is not a prelimin-ary fact-finding inquiry. Third parties are permitted an ,

opportunity to intervene and to engage in cross-examination and discovery. Fur thermore , the Commission intends to test the weight and sufficiency of the evidence, and that too is a function of an adjudication.1 Simply stated, the proceeding cannot provide a lawful adjudication under the NRC's regulations, the APA, or the AEA. The AEA does authorize the Commission to conduct ad-

! judications. It does authorize it to conduct investigations.

l

1. 'Ihe January Order states that the Indian Point Task Ebrce Reprt "will be tested in an adjudicatory setting where parties may present additional or rebuttal evidence," In re Consolidated Edison Co. ,13 N.R.C. '

at 5, and that " specific allegations [concerning specific safety defects) raise issues which are best resolved in the fortheczning adjudicatory proceedings." Id. at 3 (emphasis added).

It does not, however, authorize a hybrid proceeding which partakes of some of the characteristics of each, but omits important statutory procedural requirements of each.1 Because the substance of agency action rather than the label which an agency places on its exercise of power is con-trolling, Lewis-tiota v. Secretary _ of Labor, 4 69 F.2d 478, 4 81-82 (2d Cir. 1972); see CBS, In c . v . United States, 316 U.S.

407, 422 (1942), this proceeding is obviously an adjudication in fact. Under tie January Order, the proposed hearing, functioning as an agency process for the formulation of a final agency disposition, is an adjudication.2 As such, the proceed-

1. 'Ihe legislative history of the AEA contains no supprt for the proposition that Congress intended to grant the Ccmmission special investigative powers of an adjudicatory nature. See ABC, legislative History of the Atomic Ehergy Act of 1954 (Public Law 703, 83rd Cong.)

(1955). See also Atchison, T.&S.F. Ry. v. ICC, 607 F.2d 1199,1203 (7th Cir.1979 ) ("an administrative agency cannot exceed the specific statutory authority granted it by Congress"); Ebraiswamy v. Secretary of Labor, 555 F.2d 832, 843 (D.C.Cir.1976); Nader v. NRC, 513 F.2d at 1051 ("an administrative agency is bound . . . by the precepts of its governirg statute").

"In the absence of a conflict between reasonably plain meaning ard l legislative history, the words of a statute nust prevail." Aaron v. SEC, i 446 U.S. 680, 700 (19 80) (footnote anitted); see CPSC v. GTE Sylvania l

Inc. , 447 U.S.102,108 (1980); Canmissioner v. Brown, 380 U.S. 563, 571 l (1965).

2. 'Ihe APA defines " adjudication" as an " agency process for the formulation of an order." 5 U.S.C. S 551(7). " Order" is defined as "the l

whole or a part of a final disposition, whether affinnative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making but including licensing." 5 U.S.C. S 551(6) (emphasis added).

'Ihe Supreme Court has noted that "when Congress defined ' order' in terns of a ' final disposition,' it required that [the] ' final disposition' . . .

have sane determinate consecuences_ for the party to the proceeding." IT&T l

v. Iocal 134, IBEN, 419 U.S. 428, 443 (19 75) (emphasis added) .

l l

l 1 L

• 9 0 .

ing lacks the requisite notice and other procedural safeguards guaranteed by statute, regulation, and the due process clause of the fifth amendment.1 The January Order expressly states that the Commission intends to take final agency action at the conclusion of this proceeding. Even assuming that this proceeding is intended as the forerunner of a later adjudication conducted in accordance with all of the lawful requirements, the scope of this proceeding will control and infect the outcome of any second

~

hearing. In fact, this adjudicatory proceeding with final action by the Commission may, for all practical purposes, circumscribe to an impermissible extent a second proceeding based upon the same issues with the same parties. Therefore, this is the determinative proceeding.

In addition, this hybrid hearing is 'an attempt to make b inding , substantive rules during the course of a proceeding in

~

violation of both the applicable rulemaking and adjudicatory

1. 'Ihe AEA provides that "[i]n any proceedirg under this chapter, for the granting, suspending, revoking, or amending of any license . . . the Ccxrmission shall grant a hearirg upon the request of any person whose interest may be affected by the proceeding." 42 U.S.C. S 2239(a). Be Ccmmission's regulations provide that a proceeding to r:odify, suspend, or revoke a license may be instituted by serving on the licensee an order to sh>r cause Wich will, in part, "[i]nfom the licensee of his right . ..

to demand a hearing." 10 C.F.R. S 2.202(a) (3) . If the licensee demands a hearirg, the "Ccmmission w-ill issue an order designatirg the time and place of [the] hearing." Id. S 2.202(c) .

procedures.1 Thus, it constitutes a further impermissible infringement of the licensees' constitutional rights.

It is axiomatic that an agency is bound to follow its governing statute and rules.2 When the NRC has " laid down

[its] own procedures and regulations, [they] cannot be ignored by the [NRC] even where discretionary decisions are involved."

Smith v. Resor, 406 F.2d 141, 145 (2d Cir. 1969).

The licensees are also deprived of notice because the NRC is permitting the formulation of new contentions and new

1. See NLRB v. Wyman-Gordon Co. , 394 U.S. at 764-65 (citations omitted) (enphasis added):

We rule-makirg provisions of [the Administrative Procedure Act], which the Board would avoid, were designed to assure fairness and mature consideration of rules of general application. . . . Wey may not be avoided by the process of making rules in the course of adjtriicatory proceedings. There is no warrant in law for the Board to replace the statutory scheme with a rule-maPdng procedure of its own invention. Apart from the fact that the device fashioned by the Board does not ccmply with statutory ccamand, it obviously falls short of the substance of

. . . the Administrative Procedure Act. . . . [U)nder the Administrative Procedure Act, the terms or substance of the rule would have to be stated in the notice of hearing, and all interested parties would have an opportunity to participate in the rule making.

2. Vitarelli v. Seaton, 359 U.S. at 540; Service v. Dulles, 354 U.S.

at 373; United States ex rel. Accardi v. Shatx;hnessy, 347 U.S. at 268; National Conservative Political Action Camuttee v. FEC, 626 F.2d 953, 959 (D.C.Cir.1980); Way of Life Television Network, Inc. v. FCC, 593 F.2d 1356, 1359 (D.C.Cir. 1979); VanderMolen v. Stetson, 571 F.2a 617, 624 (D.C.Cir. 1977) (citations omitted) (" Actions oy an agency . . . in vio-lation of its own regulations are illegal and void."); see Yellin v. United States, 374 U.S. 109, 114-16 (1963).

i subissues during the proceeding. The APA provides that

"[p]ersons entitled to notice of an agency hearing shall be timely informed of . . . the matters of fact and law asserted." 5 U.S.C. S 554(b)(3).

The due process clause also requires that rules governing conduct be stated in advance so that notice is given of what conduct is required. Holmes v. New York City Housing Authority, 398 F.2d 262, 265 (2d Cir. 1968); Hornsby v. Allen, 326 F.2d 605, 608 (5th Cir. 1964); cf. United States v. Atkins, 323 F.2d 733, 742 (5th Cir. 1963). As the Supreme Court has repeatedly written:

For more than a century the central meaning of procedural due process has been clear: " Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified." . . . It is equally fundamental that the right to notice and an opportunity to be heard "must be granted at a meaningful time and in a meaningful manner."

Fuentes v. Shevin, 407 U.S. 67, 80 (1972) (citations omitted)

(emphasis added). Where, as here, statutes or regulations impinge upon constitutionally protected rights, they must set forth in advance what is and what is not lawful. See Cantwell

v. Connecticut, 310 U.S. 296, 306-08 (1940); Schneider v. New Jersey, 308 U.S. 147, 163-64 (1939); Hague v. CIO, 307 U.S.

496, 516 (1939). The proper time for giving such notice is

prior to the hearing. NLRB v. Majestic Weaving Co., 355 F.2d at 861.

As the Supreme Court stated nearly 100 years ago, law "must be not a special rule for a particular person or a particular case, but . . .' the general law' . . . so 'that every citizen shall hold his life, liberty, property, and immunities under the protection of the general rules which govern society,' and thus excluding, as not due process of law

. . . special, partial, and arbitrary exertions of power."

Hurtado v. California, 110 U.S. 516, 535-36 (1884) (citation omitted). Adherence to the requirements of the APA, the AEA, and the NRC's regulations " avoids the problem of singling out

[the Indian Point facilities] for initial imposition of a new and inevitably costly legal obligation." National Petroleum Refiners Association v. FTC, 4 82 F.2d at 683 (citations omitted). The Commission cannot ignore its governing statutes and regulations and act in a manner inconsistent with its precedents merely "because in this case the Commission thinks that that the [public health and safety] require [] a different

! interpretation." Teleprompter Cable Communications Corp. v.

FCC, 565 F.2d at 742.

l l

o..-

Conclusion For the foregoing reasons, the licensees' motion for a stay of this hearing pending completion of presently scheduled and proposed generic proceedings, or for dismissal of this proceeding or, in the alternative, for certification of the issues raised in this motion to the Commission for its uetermination, pursuant to 10 C.F.R. S 2.718(i), should be g ran ted .

Respectf ully submitted, e

Brent L. Brandenburg

_ _J s2 ,

Charles Morgan, Jr.

Y$ -

Paul Colarulli 1899 L Street, N.W.

CONSOLIDATED EDIS N COMPANY Washington, D.C. 20036 OF NEW YORK, I C. (202) 466-7000 Licensee of I ian Point -

Unit 2 Thomas R. Frey 4 Irving Place General Counsel New York, New York 10003 Charles M. Pratt (212) 460-4600 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 Madison Avenue New York, New York 10017 POWER AUTHORITY OF THE STATE OF NEW YORK Licensee of Indian Point Unit 3 10 Columbus Circle Dated: November 25, 1981 New York, New York 10019 i

l

9 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSIONERS :

Nunzio J. Palladino, Chairman Victor Gilinsky

. John F. Ahearne Thomas M. Roberts

)

In the Matter of: )

)

CONSOLIDATED EDISON COMPANY OF )

N EW YORK , INC. ) Docket Nos. 50-247 SP (Indian Point, Unit No. 2) ) 50-286 SP

)

POWER AUTHORITY OF THE STATE OF )

NEW YORK )

(Indian Point, Unit No. 3) )

)

CERTIFICATE OF SERVICE I hereby certify that on the 20th day of April, 1982, I caused a copy of the Licensee's Motion for Directed Certifi-cation of 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, for Certification to the Commission and the memorandum in support thereof to be served by first class mail, postage prepaid on:

I

4 Louis J. Carter, Esq., Chairman Janice Moore, Esq. j Administrative Judge Counsel for NRC Staff  :

Atomic Safety and Licensing Board Of fice of the Executive 7300 City Line Avenue Legal Director Philadelphia, Pennsylvania 19151 U.S. Nuclear Regulatory Commission Washing ton, D.C. 20555 Mr. Frederick J. Shon  :

Administrative Judge Brent L. Brandenburg, Esq.

Atomic Safety and Licensing Board Assistant General Counsel U.S. Nuclear Regulatory Commission Consolidated Edison Company Washington, D.C. 20555 of New York, Inc.

4 Irving Place Dr. Oscar H. Paris New York, New York 10003 Administrative Judge Atomic Safety and Licensing Board Ellyn R. Weiss, Esq.

U.S. Nuclear Regulatory Commission William S. Jordan, III, Esq.

Washington, D.C. 20555 Harmon and Weiss 1725 I' Street, N.W., Suite 506 Docketing and Service Branch Washington, D.C. 20006 -

Office of the Secretary U.S. Nuclear Regulatory Commission Charles A Scheiner, Co-Chairperson Washington, D.C. 20555 Westchester People's Action Coalition, Inc.

Joan Holt, Project Director P.O. Box 488 Indian Point Project White Plains, New York 10602 New York Public Interest Research Group Alan Latman, Esq.

5 Beekman Street 44 Sunset Drive New York, New York 10038 Croton-On-Hudson, New York 10520 John Gilroy Ezra I. Bialik, Esq.

Westchester Coordinator Steve Leipzig, Esq.

Indian Point Project Environmental Protection Bureau New York Public Interest Research New York State Attorney Group General's Office 240 Central Avenue Two World Trade Center White Plains, New York 10606 . New York, New York 10047 Jeffrey M. Blum, Esq. Alfred B. Del Bello New York University Law School Westchester County Executive 423 Vanderbilt Hall Westchester County 40 Washington Square South 148 Martine Avenue New York, New York 10012 New York, New York 10601 Charles J. Maikish, Esq. Andrew S. Roffe, Esq.

Litigation Division New York State Assembly The Port Authority of New York Albany, New York 12248 and New Jersey One World Trade Center Marc L. Parris, Esq.

New York, New York 10048 Eric Thorsen, Esq.

County Attorney County of Rockland 11 New Hempstead Road New City, New York 10956

N v Pat Posner, Spokesperson Stanley B. Klimberg, Esq.

Parents Concerned About Indian General Counsel Point New York State Energy Office P.O. Box 125 2 Rockefeller State Plaza Croton-on-Hudson, New York 10520 Albany, New York 12223 Renee Schwartz, Esq. Atomic Safety and Licensing Botein, Hays, Sklar and Herzberg Board Panel Attorneys for Metropolitan U.S. Nuclear Regulatory Commission Transporation Authority Washington, D.C. 20555 200 Park Avenue New York, New York 10166 Atomic Safety and Licensing Appeal Board Panel Honorable Ruth W. Messinger U.S. Nuclear Regulatory Commission Member of the Council of the Washington, D.C. 20555 City of New York District #4 Honorable Richard L. Brodsky City Hall Member of the County Legislature New York, New York 10007 Westchester County County Office Building Greater New York Council White Plains, New York 10601 on Energy c/o Dean R. Corren, Director Zipporah S. Fleisher New York University West Branch Conservation 26 Stuyvesant Street Association New York, New York 10003 443 Buena Vista Road New City, New York 10956 Geoffrey Cobb Ryan Conservation Committee Chairman Mayor George V. Begany Director, New York City Village of Buchanan Audubon Society 236 Tate Avenue 71 West 23rd Street, Suite 1828 Buchanan, New York 10511 New York, New York 10010 Judith Kessler, Coordinator Lorna Salzman Rockland Citizens for Safe Energy Mid-Atlantic Representative 300 New Hemstead Road Friends of the Earth, Inc. New City, New York 10956 208 West 13th Street New York, New York 10011 David H. Pikus, Esq.

Richard F. Czaja, Esq.

Mr. Donald L. Sapir, Esq. 330 Madison Avenue 60 East Mount Airy Road New York, New York 10017 RFD 1, Box 360 Croton-on-Hudson, New York 10520 Ms. Amanda Potterfield, Esq.

P.O. Box 384 Village Station New York, New York 10014

/

Paul F. Colarulli l

. .. - - .