ML20052G246

Answer Opposing PASNY Motion for Directed Certification of Motion for Stay of Commission Orders Requiring Investigation Into Safety of Plants or for Dismissal of Adjudicatory Hearing.Certificate of Svc Encl

ML20052G246
Person / Time
Site:	Indian Point
Issue date:	05/07/1982
From:	Blum J, Holt J, Potterfield A NEW YORK UNIV., NEW YORK, NY, POTTERFIELD, A., PUBLIC INTEREST RESEARCH GROUP, NEW YORK, UNION OF CONCERNED SCIENTISTS
To:	NRC COMMISSION (OCM)
References
ISSUANCES-SP, NUDOCS 8205140449
Download: ML20052G246 (12)

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'82 12V 12 N0:34 Nunzio J. PallaM no, Chairman Victor Gilinsky John F. Ahearne P A_ _ , , ~ ., , .U V' 1x Thanas M. Roberts U"" i I T ~

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In the Matter of )

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OCNSOLIDATED EDISW CXNPANY T NEW YORK, INC.) Dockets Nos. 50-247 SP (Indian Point, Unit No. 2) ) 286 SP

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D POWER AUDDRITY T THE STATE T NEW YORK ) May ,9'1982 ' -, ,

(Indian Point Unit No. 3) )  ; Q SpOp Y

hQ UCS/NYPIRG'S OPPOSITION 'IO PASNY'S MOTION EUR DIEtL:1w CERTIFICATION OF M7fICN FOR A STAY T OCft11SSICN'S ORDERS REQUIRING INVt.Sff1GATION INIO SAFETY T INDIAN POINT PIANIS OR FOR DISMISSAL T ANUDICA'IORY HEARING By its order of March 29, 1982,1the Atomic Safety and IJcensing Board in this proceeding (Board), denied the November 25,1981 joint motion of Con Edison and PASNY to stay the Nuclear Regulatory Camtission's (Ccmnission) orders that directed an investigation into the safety issues raised by the operation of Indian Point nuclear power plants Units 2 and 3. Order of March 29, pp. 4-5.

The Board declined to certify to the Ccmnission the Ilcensees' motion 3

for a stay pursuant to C.F.R. @2.718(i), because no " major or novel questic'ns of policy law or procedure" were presented bv the motion.

Order of March 29, 1982, pp. ;-6.

1 A copy of the Order is annexed hereto as Appendix A, since PASNY failed to include the Order with its attachments to the notion for, directed certification.

8205140449 020507 PDR ADOCK 05000247 PDR

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PASNY alone seeks revieV f the Board's March 29th" Order'in its , . ,

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/, v i* motion to tiis Ccmnission for directed certification dattdd April 20, 1982. s

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The rotion should be denied? #The n,ard ' correct 1.y'.,mled that thshissue s

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of the atay is inappropriate for cer$1fication. Further, the underlying s-c -

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.. motion 3cr a stay was frivolous9 arYI, we subnit, interposed printtily

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4 tio ' thwart the mardate of the. Board' to conduct a full' investigation of x

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m the cannission's qtiestions ebcut t, hep %ety of the Indian Point plpnts , '

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eand to subdkt'its reww=.3ations to the Ccanission by Septaber 18c 1982. *

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, 's'; I. , THE BOARD CORRECILYiD'MRT THE ISSUE ,

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4 ( OF A STAY PRESENPS. NO MAJOR OF< NOVEL

, QUESTION OF POLICY;IAW OR 3ROCE: DURE. " ' ,,,

' WRTHER, THE PUBLIC INTERT@@UID SUFFER j? r,

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%TOUNTERED IF 'I'HE COTISSION D1.tel.;rw \ / '

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The; Licensee.9' untimely 2 Novbbe'r3 25, ,,.982 nr> tion for a%tay of the

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a Comtission's January 8th and September 18, 1901. orders, or for a dis- ,

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missai of thelinvestigation, was"Ih'effect an attstph to Appeal,the' . ,

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.I Camlission's orders to the"floard( The Board notbd in-its order of

.g . w March 29th that the objohtions to the proceedings' raised bypcensees -

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.in their'Novenber motion for a stay had been raised'to7the Canaission s' '

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in 1979 and 1980, before the issuance of the 1901 orders. Yet,PASjPI in its present notion, beat's the dead horse once again,- seeking to 2mde -

- mine the integrity of the.adjudicatdy process establishe'd by the x

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Camtission and unnecessarily burdening all of the[ parties to this u ,( '

proceeding, which is r m in the discovery stage. '

The Cannission must rule, crnsistently with its pr.ervions orders U -

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directing the investigationrand-deny the motion for directed certific-m . .# '

ation. We urge'the Cannission to take this opportunitiy, further, to warn w+

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A motion for a stay must be filed withul ten days after service of the decision or action sought to be stayed; he,re,, within ten days of -

the Septmber 18th,1981 order.10 C.F.R. @2.788 (a) . )\

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Page 3 the Licensees against future meritless litigation undertaken at rate-payers' expense.

The Board found at page 5 of its March 29th order that the Licencees' motion for a stay or dismiscal of the Indian Point hearings raised no

" major or novel questions of policy law or s W ure." PASNY would have the Cm mission apply the more liberal standard for interlocutory appeals, that "the public interest will suffer or unusual delay or expenses will be encountered" if the certification is not forthemdng. PASNY's M morand s of Law in Support of Petion for Directed Certification, etc, at p.2. The application of either standard empels the same result: cert-ification to the Ca mission would result in severe delay and egense contrary to the public interest. In this proceeding, parties have been admitted, contentions have been formulated and discovery has begun. The taking of testimony is scheduled to begin June 22nd, 1982.

Regardless whether the Licensees presented the exact legal theories to the Cmmission in 1980 as were presented in their Novmber 1981 motion,3 the relief they seek is the same: a reversal of the Ca mission's decision to act on its responsibility to protect the health and safety by investigating the Indian Point nuclear power plants. If the Licensees presented, as they claim at pp. 6-8 of the nunorands in support of the motion for directed certification, different argments in 1980 than were included in their 1981 motion, the answer is sinply that they should have presented all of their argments directed at avoiding an investigation of their operation of the Indian Point plants at the earlier time. Now that an Atmic Safety and Licensing Board has been appointed and the proceeding 3Those issues are briefly discussed in the pages that follow.

,Page 4 undenay,the presentation of new argtnents is especially inapp1.@,.iate.

The only unprecedented aspect of the Licensees' attstpts to abort the Indian Point hearings would be the waste of time and money and the outrage and disillusioment of the public should the Omnission revoke its previous decisions to investigate the safety of the Irdian Point plants.

II. LICENSEES' ARGlNE2ES FOR SIAY OR TIE COM4ISSICN'S ORDERS OR FOR DISMISSAL OF TFE lEARING ARE FRIVOLOUS The licensees' joint November 1981 motion purports to argue for a stay of the Ca mission's orders or a dismissal of the Indian Point site-specific hearings on six grounds. M morandtn of Law in Support of Motion on Nov. 25, 1981, pp. 2-3. The Board requested a response to the motion limited to the issue of the power of the Board to grant the relief re-quested, and UCS/NYPIRG sutmitted a response on that issue only.

UCS and NYPIRG now take this opportunity to briefly address Licensees' arguments only to illustrate the distortion of constitutional principles that characterizes each of these argtments.

1.) Cmmencment of an adjudicatory proceeding prior to cmpletion of ongoing proceedings to establish generic standards constitutes a denial to licensees of procedural due process.

According to the Licensees' argument, the Nuclear Regulatory Cmmission could never have an adjudicatory proceeding focussed on a single plant until it has empleted all of its generic proceedings. Ibwever, because the Nuclear Regulatory Cm mission is almost always engaged in setting generic standards, it would never be able to investigate the safety of any given plant. Thus, the generic standards, by virtue of their ongoing revision, could never be applied. The due process clause of the fifth amendment entitles the licensees to neither an irrevocable operating license nor imtunity from investigation of safety probles at the Indian Point plants.

Page 5 2.) Principles of res judicata and collateral estoppel bar reconsideration of the physical and population char-acteristics of the Indian Point site.

and 3.) The Cm mission'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.

The Licensees' .attspt to endow their licenses with unlimited tenure, here, by arguing that a question of safety in the rapidly changing tech-nology of nuclear power plants can never be re-opened without " changed ciretastances" and, in point three, that a plant's site is impervious to reasoned challenge once the plant is built.

The operation of a nuclear power plant does not terminate the Ccm-mission's first mandate to protect the public health and safety. See, Power Reactor Develoment Co. v. International Union, 361 U.S. 396 (1961) .

UCS/NYPIBG rmtind the Licensees' of troubling develognents like the accident at Three Mile Island, the Indian Point plants' frequent unplanned shutdowns, steam generator problems leading to relaxed license specifications, vessel mbrittlement and the continuing serious criticisms of the Indian Point mergency plans - all indicating the need for the Cmmission to take a new look at the safety of the Indian Point plants.

4.) The Constitution requires that the Ccmnission establish cx:stpelling reasons to justify a shutdown at Indian Point.

Despite the Licensees' assertions, their "cmpelling interests" test for shutdown has no basis in the Tenth Amendment nor in any statute or case law. However, protection of the public health and safety is a cmpelling reason that would justify any decision to shut down the Licensees' plants.

5.) An adverse ruling frm a readjudication of the Indian Point site would result in an inpairment of omtract and a taking of property without due process of law.

Page 6 Licensees' inmi=nt of contract tieory has not been taken seriously since the days of Inchner v. New York,198 U.S. 45 (1905) . A license to operate a nuclear power plant is not a contract, but even if it were, it could be altered or superwul if the public safety or welfare demanded.

See, Building And Loan Association v. Blaisdell, 290 U.S. 398 (1934).

6.) The Cm mission lacks jurisdiction to conduct the hybrid investigatory-adjudicatory sccMing which constitutes an unconstituticnal singling out of the Indian' Point licensees.

The Licensees' cmplaint of selective investigation is hit another facet of their illogical first argment, that generic rulemaking must be empleted before their plants at Indian Point can be investigated.

Both of these argments ask the Ccmmission to ignore the unique dangers of operating the Indian Point plants.

III. A RECORD OF ALL EX PARTE CONI 74TS SHOUID BE KEPT AND MADE PUBLICLY AVAIIABLE.

IX'S and NYPIBG join in the cmplaint of the Licensees that g parte contacts with the Nuclear Regulatory Conmissioners are permitted in the Indian Point proceedings. Mmorands of Iaw in Support of Motion of Nov. 25, 1981, at pp. 53-54. UCS and NYPIBG request that the Ccruission keep detailed record of the occurence and substance of all g parte contacts that pertain to Indian Point. A current copy of this record must be made available to the public in order to ensure that the Ccumission's final ruling on Indian Point is " supported by an independent agency determination, not one dictated or pressured by external forces." SDC v.

Wheeling Pittsburgh Steel Corp., 648 F. 2d 118,130 (3rd Cir.1981) .

CONCLUSIN The Licensees' motion for a stay or for dismissal of the Indian

Page 7 Point hearings was based on frivolous and misleading argtanents. PASNY's notion for directed certification of the notion can only be regarded as a ploy to exhaust the NRC Staff and intervenors. The Cm mission nust firmly decline to direct certification and order PASNY to begin to partic-ipate constructively in the hearings. PASNY and Con Edison both have a duty to contribute to a omplete record on the serious questions raised about the Indian Point plants by the Camission in its January 8 and Septaber 18, 1981 orders.

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Dated: New York, New York vs _~ Qw May 7, 1982 s M go.

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of Corcerned Sci sts York University Iaw School 423 Vanderbilt Hall Washington Square South New York, New York 10012 212-598-3452 n

W Nh% i C HOLT, DIRDCIOR York Public Interest Research Group, Inc 5 Street NeM York, New York 10038 212-349-6460 0

AMANDA PunuWu.1D, ESQ. V Luht$6f Counsel for New York Public Interest Research Group, Inc.

Bax 384 Village Station New York, New York 10014 212-227-0265 t

UNITED SIKIE & MERICA NUCIEAR RDGUIA'IORY 03 MISSION 03MISSIOERS Nunzio J. Palladino, Chairman Victor Gilinsky John F. Ahearne Thmas M. Roberts

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In the Matter of )

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CQ4SOLIDATED EDISON COMPANY T NEW YORK, INC. ) Dockets Nos. 50-247 SP (Indain Point, Unit No. 2) ) 50-286 SP

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POWER AUDORITY OF 'HE STATE T NEW YORK ) May 7, 1982 (Indian Point Unit No.3) )

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Certificate of Service I hereby certify that copies of:

UCS/NYPIRG'S OPPOSITION 'IO PASNY'S MOTIOJ FOR DIRECTED CERPIFICATION OF M7flG4 FOR A STAY OF C0ft1ISSION'S ORDERS REQUIRDG IN-VESTIGATION INIO SAFETY OF E4DIAN POINT PIANTS OR FOR DISMISSAL OF ADRJDICA'IORY HEARD 4G PAREtfrS, UCS AND NYPIRG'S NCTfICE OF DTIHTTIGI NOT 'IO RESPOJD 'IO POWER AUDORITY'S NOTICE OF APPEAL OF BOARD'S ORDER GRAF7THE DTIERVEtIIION AND DENYING REQUEST FOR EVIDD7fIARY HEARING G4 ISSUES OF SIANDING have been served on the official minimum service list *and to Chairman Nunzio J. Palladino, Ccanissioner Victor Gilinsky, Camissioner John F.

Ahearne and Camissioner Thmas M. Roberts for the above captioned pro-ceeding by depositing in the United State mail, first class, this 7th day of May, 1982.

• Absent Appendix A, March 29,1982 Board Memorandum and Order.

• r 6 i 14 Amanda Potterfield, Esq. g liolt P.O. Box 384 York Public Interest Research Group, Inc.

Village Station Street New York, New York 10014 York, New York 10038 f

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b UNITED STATES OF AMERICA NUCLEAR REGULATORY COMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter o#: Docket Nos. 50-247 SP CONSOLIDATED EDIR 'OMPANY OF 50-286 SP NEW YORK (Indian voint, Unit 2) l POWER AUTHORITY OF THE STATE OF NEWYORK(IndianPoint, Unit 3)

SERVICE LIST Docketing and Service Branch Paul F. Colarulli, Esq.

Office of the Secretary Joseph J. Levin, Jr., Esq.

. U. S. Nuclear Regulatory Comission Pamela S. Horowitz, Esq.

l Washington, D.C. 20555 Charles Morgan, Jr., Esq.

Morgan Associated, Chartered

, Louis J. Carter, Esq., Chairman 1899 L Street, N.W.

, Administrative Judge ~

Washington, D.C. 20036

! 7300' City Line ivenue ~

Philadelphia, Pennsylvia 19151- Charles M. Pratt, Esq.

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Thomas R. Frey, Esq.

Power Authority of the Dr. Oscar H. Paris State of New York Administrative Judge 10 Columbus Circle Atomic Safety and Licensing Board New York, N.Y. 10019 U.S. Nuclear Regulatory Comission Washington, D.C. 20555 Ellyn R. Weisf Esq.

William S. Jordan, III, Esq.

Mr. Frederick J. Shon Harmon & Weiss Administrative Judge 1725 I Street, N.W., Suite 506 Atomic Safety and Licensing Board Washington, D.C. 20006 U.S. Nuclear Regulatory Comission Washington, D.C. 20555 Joan Holt, Project Director Indian Point Project Janice Moore, Esq. New York Public Interest Counsel for NRC Staff Research Group Office of the Executive 5 Beekman Street Legal Director New York, N.Y. 10038 U.S. Nuclear Pegulatory Comission Washington, D.C. 20555 John Gilroy, Westchester Coordinator Indian Point Project Brent L. Brandenburg, Es.q. New York Public Interest l Assistant General Counsel Research Group Consolidated Edison Co. 240 Central Avenue

! of New York, Inc. White Plains, New York 10606

' 4 Irving Place New York, N.Y. 10003 l

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Jeffrey M. Blum. Esq. EaYcDPNisDsq.

New York University Law School County Attorney 423 Vanderbdilt Hall County of Rockland 40 Washington Square South 11 New Hemstead Road New York, N.Y. 10012 New City, N.Y. 10010 Charles J. Maikish, Esq. Geoffrey Cobb Ryan Litigation Division Conservation Comittee The Port Authority of Chairman, Director New York and New Jersey New York City Audubon Society One World Trade Center 71 West 23rd Street, Suite 1828 New York, N.Y. 10048 New York, N.Y. 10010 Ezra I. Bialik', Esq. Greatei New York Council on Energy Steve Leipsiz, Esq. c/o Dean R. Corren, Director Environmental Protection Bureau New York University l New York State Attorney 26 Stuyvesant Street i

General's Office New York, N.Y. 10003 Two World Trade Center t New York, N.Y. 10047 . Atomic Safety and Licensing Board Panel Alfred B. Del Bello U.S. Nuclear Regulatory Comission Westchester County Executive Washington, D.C. 20555 Westchester County 148 Martine Avenue Atomic Safety and Licensing Appeal Board Panel 4

New York, N.Y. 10601 .)

U.S. Nuclear Regulatory Comission Andrew S. Roffe, Esq. Washington, D.C. 20555 New York State Assembly Albany, N.Y. 12248 Honorable Richard L. Brodsky Member of the County. Legislature Renee Schwartz, Esq. Westchester County Botein, Hays, Sklar & Herzberg County Office Building Attorneys for Metropolitan White Plains, N.Y. 10601 Transportation Authority 200 Park Avenue Pat Posner, Spokesperson New York, N.Y. 10166 Parents Concerned About Indian Point Stanley B. Klimberg P.O. Box 125 General Counsel Croton-on-Hudson, N.Y. 10520 New York State Energy Office 2 Rockefeller State Plaza Charles A. Scheiner, Co-Chairperson Albany, New York 12223 Westchester People's Action Coalition, Inc.

Honorable Ruth Messinger P.O. Box 488 Member of the Council of the White Plains, N.Y. 10602 City of New York District #4 Alan Latman, Esq.

City Hall 44 Sunset Drive Croton-on-Hudson, N.Y.

New York, New York 10007 10520

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k Lorna Salzman Mid-Atlantic Representative Friends of the Earth, Inc.

208 West 13th Street New York, N.Y. 10011 Zipporah S. Fleisher West Branch Conservation Association 443 Buena Vista Road -

New City, N.Y. 10956 Mayor George V. Begany Village of Buchanan 236 Tate Avenue Buchanan, N.Y. 10511 Judith Kessler, Coordinator Rockland Citizens for Safe Energy 300 New Hemstead Road New City, N.Y. 10956 David H. Pikus, Esq.

Richard F. Czaja, Esq.

330 Madison Avenue New York, N.Y. 10017 Ms. Amanda Potterfield, Esq.

P.O. Box 384 Village Station New York, New York 10014 Mr. Donald L. Sapir, Esq.

60 East leunt Airy Ibad I

RED 1, Box 360 l Croton-on-Hudson, New York 10520 l

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