ML19318B481

Memorandum in Response to Commission 800530 Order Initiating Informal Proceeding.Urges Development of industry-wide Policy,Guidance & Stds Prior to Consideration of Units Separately in Adjudicatory Hearings

ML19318B481
Person / Time
Site:	Indian Point
Issue date:	06/20/1980
From:	Brandenburg B, Pratt C CONSOLIDATED EDISON CO. OF NEW YORK, INC., POWER AUTHORITY OF THE STATE OF NEW YORK (NEW YORK
To:	NRC COMMISSION (OCM)
References
NUDOCS 8006260212
Download: ML19318B481 (23)

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d UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ,. __

COMMISSIONERS:

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.M p John F. Ahearne, Chairman

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Victor Gilinsky  ! ,,x n '"

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Richard T. Kennedy

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Joseph M. Hendrie Peter A. Bradford

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In the Matter of )

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CONSOLIDATED EDISON COMPANY OF )

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

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POWER AUTHORITY OF THE STATE OF NEW )

YORK (Indian Point, Unit No. 3) )

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LICENSEES' INFORMAL PROCEEDING MEMORANDUM IN RESPONSE TO THE COMMISSION'S ORDER OF MAY 30, 1980 CONSOLIDATED EDISON COMPANY POWER AUTHORITY OF THE STATE OF NEW YORK, INC. OF NEW YORK Licensee of Indian Point Licensee of Indian Point Unit 2 Unit 3 4 Irving Place 10 Columbus Circle New York, New York 10003 New York, New York 10019

, (212) 460-4600 (212) 397-6200 Dated: New York, New York June 20, 1980 8 0082 6 CLZ12.] }p.

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e UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:

John F. Ahearne, Chairman Victor Gilinsky Richard T. Kennedy Joseph M. Hendrie Peter A. Bradford

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In the Matter of )

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CONSOLIDATED EDISON COMPANY OF )

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

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POWER AUTHORITY OF THE STATE OF NEW )

YORK (Indian Point, Unit No. 3) )

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LICENSEES' INFORMAL PROCEEDING MEMORANDUM IN RESPONSE TO THE COMMISSION'S ORDER OF MAY 30, 1980 The 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, submit this memorandum in con-nection with the informal proceeding initiated by the Commission's order herein dated May 30, 1980. In its order, the Commission soli-cited the views of interested members of the public concerning the course of the adjudicatory hearings which the Commission has concluded should be held concerning the continued operation

I l of the Indian Point units. We accept the Commission's invi-tation in its May 30 order and hereby incorporate by reference our earlie' respective comments submitted on March 10, 1980.

For the reasons set forth in our prior submissions and below, the licensees respectfully submit that certain procedures should be provided in connection with any future adjudi-catory haarings, so that matters which are truly industry-wiae in scope and application are not prematurely considered in connection with these units alone, and before specific Commission policy, guidance and standards have been developed.

Introductory Statement This proceeding was initiated pursuant to Section 2.206 of the Commission's Rules of Practice, whereby the Union of Concerned Scientists ("UCS") sought an order commencing a proceeding to modify, suspend or revoke the operating licenses for Indian Point Units 2 and 3. In a decision dated February 11, 1980, the Commission's Director of Nuclear Reactor Regulation determined that such a proceeding need not be conducted. In an order dated May 30, 1980, however, the Commission everruled the Director's conclusion and stated its intent to empanel an Atomic Safety and Licensing Board to adjudicate certain issues raised by UCS.

The UCS petition was filed on September,17, 1979.

Remarkably, the petition nowhere suggested that Indian Point Units 2 or 3 f ailed to comply in any way with applicable r

Commission regulations, nor did it contend that Indian Point was any less safe than other power plants located throughout the country. The UCS petition complained primarily of two things: (1) that relatively high population levels in the vicinity of Indian PGint made necessary " specific added safety features and of f-site emergency measures," (peti-tion at p. 25), and (2) that the Commission's "backfitting" prac-tices should be changed to require a demonstration "that specific design features in each plant provide a degree of protection equivalent to that which would be provided by . . . new pressurized water reactors," (petition at pp.

3-4). The petition asserted that despite " rigorous tests" for new operating licenses, "the NRC has f ailed to formally face up to the existence of numerous safety problems in currently operating plants," (petition at p. 19).

Both before and af ter the filing of the UCS petition, the Power Authority and Con Edison have continued to demon-strate their present and past awareness of the safety con-siderations involving the operation of the Indian Point units.

Their immediate and positive response to the Director's Con-fi4matory Order of February 11, 1980 and the continuing implementation of additional safety enhancement actions emphasize this awareness. Recently docketed material developed f rom intensive study efforts by recognized experts in the field of nuclear engineering and risk assessment illustrate that these plants, by original design and as further modified, are substantially safer than the Commission Staff had estimated at the February 5 briefing. This information has been developed by plant-specific comparative risk analyses, utilizing WASH-1400 methodology.

POINT I THE COMMISSION'S MAY 30 ORDER REPRESENTS AN ABRUPT CHANGE IN POLICY WHICH SHOULD BE EXPLAINED AND JUSTIFIED The May 30, 1980 Commission order represents an historic and abrupt change in Commission policy regarding the licensing of light water reactors. The policy, both impli-cit and explicit, which permitted the siting, construction, li-censing and operation of the Indian Point reacto rs , as well as all other light water reactors, specifically did not i call for the consideration of accidents of exceedingly remote probability, nor did it assume that all reactors had to meet the precise revel of safety met by more recent plants.

Previous Commission policy similarly did not require that a )

l licensee prove that each and every safety problem generic to classes of reactors had been resolved prior to operation.

The UCS petition seeking to terminate operation of the Indian Point reactors, on the contrary, did seek to compel just such changes in Commission policy, and thus to require the Indian Point licensees to meet' an unprecedented regulatory l l

standard. l Under the May 30 Commission order, for the first

time highly improbable beyond design basis accidents, which had formerly been excluded f rom consideration, are now to be con-sidered in a plant-specific context. Moreove r, this change in policy is proposed to be made without the benefits of industry-wide participation. This is flatly contrary to recent Commission rulings. In Black Fox Station, NRC , CCH Nuc. Reg. Rpts. 1 30,466 (March 21, 1980), the Commission addressed the circumstances under which beyond design basis accidents should be considered. Construing its earlier decision in the Offshore Power case, the Commission stated that:

"[W]e did not believe that the NRC's generic policy on consideration of Class 9 accidents would properly be developed ruling on a case-by-case basis. Such piecemeal consideration is not appropriate to such an important policy area, and we decline to adopt such an approach now."

The marked departure f roa this policy, occurring less than two months later in the Commission's May 30 order herein, is unexplained.

The Commission decision to direct adjudicatory hearings involving Indian Point is itself a clear-cut departure f rom established Commission practice. The UCS petition care-fully avoided making any allegations that the Indian Point units violated applicable NRC regulations. No one has suggested thar the licensees have violated any of their license conditions, or that there has been any material change in plant conditions. Under these circumstances there is no

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predicate for adjudicatory proceedings as required by 10 CFR S 2.206.

Fairness and due process, as well as general prin-ciples of administrative law, require that the Commission define what its safety goals and policies are before individual licensees be put on trial to defend their compliance with as yet unenunciated standards. The Court of Appeals expounded on the question of agency policy revision in Columbia Broadcasting System, Inc. v. F.C.C., 454 F.2d 1018 (D .C. Cir. 19 71) , where it stated that there is an " equally essential proposition that, when an agency decides to reverse its course, it must provide an opinion or analysis indicating that the standard is being changed and not ignored, and assuring that it is faithful and not indif ferent to the rule of law." Id. at 1026.

While the Commission has indicated that adjudicatory hearings on Indian Point will determine the safety of the plants, the licensees have not yet been put on notice by the Commission as to what that new safety standard might be, or what specific aspects of risk to the public warrant such a hearing, and why it should be confined to Indian Point. In order to meet the notice requirements under the Administrative Procedure Act, 5 U.S.C. S 551 et seq., and to provide a reasonable basis for resulting decisions, these issues should be clearly de-fined by the Commission prior to the start of the hearing.

The items which must, at a minimum, be defined prior to the commencement of any adjudicatory hearings are:

1. Recognition of previous Commission safety goals as already inherent in past licensing decisions;

2. Definition of present Commission safety policies, and in particular whether there should be an objective to equalize per capita or per site residual risks;

3. Explanation of the basis for new Commission policy requiring the consideration of beyond design basis accidents in connection with certain, but not all, licensed reactors.

4. Definition of the basis for and grounds upon which backfitting of new equipment or standards is to be required in existing plants;

5. The effect of such policy changes on Commission practice in general and its effects on the nuclear industry and plants both operating and under construction throughout the nation.

POINT II THE SUBJECT MATTER FOR ANY HEARINGS SHOULD BE DIVIDED INTO SEPARATE PLANT-SPECIFIC AND GENERIC CATEGORIES, WITH REGULATORY STANDARDS CLEARLY ARTICULATED BEFORE PLANT-SPECIFIC ISSUES ARE ADJUDICATED The Commission's May 30 order sets forth six (6) questions -- all said to be " subject to modification" --

which the Commission proposes to refer to an Atomic Safety and Licensing Board for a " trial-type adjudication." In the form in which these six questions are set forth in the May 30 o rde r, they constitute a mix of both generic and plant-specific

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issues. These two types of issues require separate and distinct treatment in any adjudicatory hearings which are 4 to be held.

The first and second enumerated questions relate to j the status of state and local emergency planning at Indian Point.

This topic is site-specific to the extent of an inquiry into exactly what emergency planning measures are actually being taken at Indian Point and how they comply with current regulatory

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, requirements.* However, to the extent that the question requires

! an examination of the need for emergency planning beyond the NRC's proposed 10-mile plume exposure pathway, the question is generic.

With respect to the third enumerated question, relating to the so-called " interim measures' and studies voluntarily I undertakon by the licensees in connection with the Director's February 11 Confirmatory Order, that question is generic to the extent of the material which is footnoted, relating to 4

additional safety measures not covered by NRC regulations i which any party might propose be required as a condition of operating the facility. The footnoted material is overly broad as well, inviting abuse of the adjudicatory hearing process by requiring the Licensing Board to consider and

• As stated in Point I, above, there is substantial unfairness associated with the requirement of an adjudication even on this and other site-specific issues, inasmuch as Indian Point is being singled out for trial without any stated basis, and absent any_ claim that, for example, Indian Point emergency planning fails to comply with Commission requirements.

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r the licensees to defend against literally any purported safety measure which might be proposed by any intervenor. -

The fourth possible Licensing Board question set forth in the May 30 order relates to the " risk" (defined to include both probability and consequences) which may be posed by serious accidents beyond the design basis at Indian Point. Excepting the substantial significance of extraordinary design features which are particular to the Indian Point units (see Point IV below), and excepting certain site-related and meteorological n tters, this question is entirely generic. Fu rthe rmore , it will be impossible for the licensees to determine the risk unless the Commission first defines the types of "beyond design basis accidents" which they are to consider. l The fif th question is the only one which is ger-maine to why Indian Point should be singled out for adjudi-catory hearings. As discussed in Point IV below, we submit that recent probabilistic studies provide an answer to this question sufficient to require Commission reconsideration of its May 30 order. As a topic for Licensing Board consideration, however, except as noted above, the subject of nuclear power plant risks is clearly generic.

Similarly, many of the energy, environmental, economic, national security and other consequences of shutting down opera-ting reactors as contemplated by the sixth enumerated question are generic in nature, and raise such issues as the price and availability of OPEC oil, national balance of payments, energy

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cost-induced economic impacts, and the environmental consequences which would accompany aay replacement combustion power generation.

In order to prevent confusion and unf airness both to tne Indian Point licensees on the one hand, and the nuclear industry's vital interest in the generic issues on the other, and to avoid the possibility of inconsistent deter-minations and duplication, the Commission should separate the generic issues from the site-specific issues and consider each separately. It should be apparent that the Commission's l

May 30 order raises many more generic issues than merely those relating to high population density sites (see paragraph C of the May 30 order at p. 5) . All of these truly generic issues should receive distinct treatment in any final Commission order herein, whether in the " generic proceeding" contemplated in the May 30 order, or in connection with presently ongoing or announced rulemakings which will consider the same generic issues in any event.* Indeed, having pre-viously selected a generic format for the resolution of these The Commission has already initiated or announced rulemakings on the subjects of emergency planning (Advance Notice of Rulemaking, 44 Fed. Reg. 41483), fire protection (Announcement of proposed rulemaking, 45 Fed. Reg. at 36062, dated May 28, 1980), risks of low probability accidents (Commission order dated September 14, 1979; see also 45 Fed. Reg. at 40101), and siting and population density considerations (Task Force Report NUREG-0625) . In light of the imminent Com-mission scrutiny which each of these topics will receive, and  :

the need for input f rom a variety of sources in the process, i it is particularly inappropriate to place this burden upon two l licensees to first litigate such major questions in an adver-sarial, license revocation context.  ;

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and other questions of industry-wide application, the Commission would be reversing its course if it were to require that they be considered in the context of plant-specific Indian Point adjudicatory hearings.

With respect to those matters under consideration for referral to a Licensing Board which are viewed as plant-specific, in each instance the Commission should supply a rationale for non-generic treatment. This is especially appropriate where, as here, there is no claim of violation of applicable regulations, and there is also a finding of regulatory compliance in the Director's February 11 decision.

Each surviving plant-specific issue, if any, which the Commission concludes may properly be adjudicated before a Licensing Board should await Commission formulation of a safety standard prior to the actual adjudication of that issue. The May 30 order pointedly cbserves that the " ultimate issue in the adjudication" is whether or not the Indian Point units should continue to operate, be shut down, or the licenses other-wise modified. Any requirement that the licensees litigate the acceptability of their units prior to the definition of the standard to be met would constitute a patent violation of due process and equal protection of the law.

l It is self-evident that the licensees cannot argue for, nor cat. a Licensing Board determine, the satisfaction of some Commission safety requirement until the Commission establishes the requirement. Certainly, a judgment i

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l as to whether Indian Point is " safe" must be preceded by l the formulation of an objective standard. The yardsticks of acceptability must be set before the Indian Point licensees can be made to argue that they comply or will comply with them. It is totally at odds with our system of justice to first collect the facts and then decide what rule of law is r.eeded to reach a certain result.

Considerations both of administrative good house-keeping and also fairness to the licensees thus support a deferral of plant-specific proceedings until standards have been set. This is not to suggest, however, that a Licensing Board may do nothing pending the outcome of ongoing Commission pro-ceedings to establish safety-related standards, if for whatever reason the Commission concludes that hearings limited to Indian Point are essential. The formulation of questions in the May 30 order we submit would be inappropriate. There are several issues upon which a Licensing Board might properly take testimony, once a proper basis for singling out Indian Point has been established:

1. Do the Indian Point units f ail to meet current Commission standards for emergency planning?

2. Do the Indian Point units f ail to meet any current Commission standards for accident risk, taking into account the risks of shutdown?

3. What would be the increased societal costs in the event the Indian Point units were to cease operations?

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However, for the reasons set forth above, any more ambitious program for Licensing Board adjudicati".i -- and cer-tainly the six questions set forth in the May ';0 order -- would be unworkable and unsustainable until the new generic standards by which the Indian Point units are to be judged have been set.

POINT III THE COMMISSION IS REQUIRED BY THE NATIONAL ENVIRONMENTAL POLICY ACT TO PREPARE AN ENVIRONMENTAL IMPACT STATEMENT IN CONNECTION WITH THE UCS PETITION The course of action proposed in the Commission's May 30 order is a major federal action significantly affecting the quality of the human environment. The May 30 order effectively constitutes a re-review of the site suitability of Indian Point under new rules and standards not yet articulated. This l reexamination of Indian Point could lead to a Commission decision l co tecminate operation of the Indian Point units. l Such a j decision, if it were ever to be mede, would have its own environmental consequences which must be assessed. A detailed environmental impact statement must therefore be prepared. I This environmental review should not be treated as an "af ter thought" but should be undertaken as early in the Commission's proceedings as possible.

In November 1978, the President's Council on' Environmental Quality ("CEQ") issued regulations for the guidance of all agencies which implement the National Environmental Policy Act ("NEPA"), 40 CFR Pa rt 1501.

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l The Commission has proposed revisions to Part 51 l of its regulations to take into account the CEQ's l l

requirements. See 45 Fed. Reg. 13739. l The CEQ regulations provide that agencies "shall integrate the NEPA process with other planning at the earliest possible time to insure that planning and decisions reflect environmental values, to avoid delay later in the process, and to head off potential conflicts" (emphasis added). (40 CFR S 1501.1)

The preparation of an environmental impact statement in connection with any course of action similar to that set i

forth in the Commission's May 30 order is not only necessary, but should be started as soon as possible. NEPA review is mandated by Congress, and would also have the salutary effect of encouraging the Commission to carefully consider and set forth the costs and benefits of its unprecedented order together with consideration of all available

. alternatives.

This potential termination of operation of the Indian Point reactors based on a new view of the risk to the public constitutes a major, unexplained departure froe settled Commission practice whereby serious accidents beyond the design basis were not required to be evaluated on a site-specific basis. The Commission position as set forth in the May 30 order, if not changed, will have a direct and imme-diate chilling effect upon prospective licensees who can

no longer rely upon the licensing stage as the limit to their litigation exposure to possible shutdown. The deviation from settled Commission practice with respect to license revocation petitions, particularly in light of the Director's February 11 decision, will make the nuclear option singularly less attractive to utilities throughout the country. These factors both individually and collectively supply ample basis for concluding that the Commission's action has a significant effect upon the quality of the human environment which requires early NEPA evaluation.

POINT IV THE CCMMISSION'S DECISION TO DIRECT FURTHER PROCEEDINGS SHOULD BE FULLY REEVALUATED IN LIGHT OF THE INTERIM OPERATIONS TASK FORCE REPORT The Commission's May 30 order does not contain any articulated rationale setting forth the basis for the contem-plated adjudication. Nor is any disagreement expressed with the Director's previous contrary determination. The transcript of the Director's February 5,1980 public briefing does suggest that the Commissioners may have been concerned about the staff's carefully limited and qualified preliminary estimate (Tr. pp. 162-63) that the operation of the Indian Point units, together with the Zion site, posed thirty percent of the aggregate nuclear power generation risk in the United States.

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Both Con Edison's and the Power Authority's memoranda submitted in response r.o the Commission's solicitation of comment

• took issue with the thirty percent societal risk figure. Since the percentage given assumed only a typical pressurized water reactor " transplanted" to the Indian Point and Zion sites, the licensees submitted that this preliminary determination was flatly incompatible with the Director's observation that the Indian Point plants employed many excep-tional design features "which would limit the potential radiological consequences of a major accident."**

The extent of the inaccuracy reflected in the preliminary estimate societal risk figure recently became clear. In con-nection with the Commission's near-site study program, an extensive report on the evaluation of residual risk for the Indian Point power plants was submitted by the licenseas. A principal conclusion of the report is that the residual rie.k of a serious accident at Indian Point is as much as ten times less than at a composite site. The report was sent to the Director, the Commissione rs ,

and the UCS on May 23, 1980.

• " Solicitation of Comment on Director's Decision under 10 CFR 2.206," dated February 15, 1980.

• • Among these are a containment weld channel and weld channel pressurization system, a penetration pressurization system, an isolation valve seal water system, extra containment fan cooler capacity, post-LOCA hydrogen control, a third naxiliary feedwater pump, containment atmosphere radioactivity removal, and confirmatory emergency safeguard features. Tbc operation of each of these exceptional safety features, and the manner in which they enhance safety at Indian Point, is summarized in the Director's February 11 Decison at pp.10-12.

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l The Interim Operations Task Force established by j the Commission's May 30 order was similarly asked to consider the actual risks posed by operation of Indian Point. The Commission's order directed that the Task Force Report be submitted on June 12, 1980, and that it discuss and compare the accident probabilities of Indian Point compared to other re-actor designs which have been analyzed. The Commission's order specifically provided that the Task Force should address

" technical design comments received in response to the Commission's February 15 solicitation of comments ," i.e.,

evaluate the particular design features of Indian Point.

The future course of this proceeding should in all f airness to the licensees and to the public be determined after Commission consideration of the actual risks posed by opera-tion of Indian Point, not before. Since the Commission's May 30 order does not contain a rationale for singling out the Indian Point units f rom among the more than 70 operating reactors for sweeping adjudicatory review, the licensees are unable to address the evident Commission concerns directly. However, if in fact the preliminary societal risk estimated by the Staff on February 5 played a major role in the regulatory decision to have an adjudication, then it is incumbent upon the Commission to first search the underpinnings of its own logic. Before expensive and time-consuming resources are committed to the unprecedented site-specific inquiry contemplated by the May 30 order, the Commission should first reevaluate the need for case-by-case inquiry into emergency planning, demographics, and core melt scenarios in light of its own careful and deliberate consideration of the risks posed by operation of Indian Point.

The Commission now has the results of such an inquiry, in the form of the Task Force Report. After affording an opportunity for licensee comment on the Report,*

but before directing any further proceedings, the Commission

should first consider whether the actual risk assessment data reinforces or instead eliminates any supportable basis for elaborate adjudicatory proceedings relating solely to Indian Point.

POINT V THE CRITERIA FOR THE ACCEPTABILITY OF THE RISK POSED BY ALL NUCLEAR REACTORS IS ESTABLISHED BY THE ATOMIC ENERGY ACT, AND CANNOT BE DEVIATED FROM The Commission's May 30 order inquired as to the risk criteria by which the Indian Point units should be considered. This matter has been addressed by the Congress which set forth the requisite licensing safety stand'. in the Atomic Energy Act. Section 182(a) of the Act, 42 U.S.C.

• The Task Force Report was presumably submitted to the Commis-sioners on June 12, as directed by the May order. The licensees have not yet had an opportunity to review the Report or to comment upon it.

S 2232(a), provides in pertinent part that:

" [T] he [ utilization facility license] applicant shall state such technical specifications . . .

and such other information as the Commission may, by rule or rc';ulation, deem necessary in order to enable it to find that the utilization or production of special nuclear material will be in accord with the common defense and security and will provide adequate protection to the health and safety of the public."

The Congress has also mandated in Section 186(a) of the Act, 42 U.S.C. S 2236(a), that the Commission apply the sdme standard to license revocations:

"Any license may be revoked . . . because of conditions . . . which would warrant the l Commission to refuse to grant a license on an original application. . . ." l Implementing these provisions of the Act, and j l

pursuant to the rulemaking authority granted by Section l 161(1)(3), the Commission promulgated its utilization f a-cility safety regulation in 10 CFR S 50.40. This regulation states in pertinent part that: l "In determinina that a license will be issued to an applicant, the Commission will be guided by the following considerations:

(a) The processes to be performed, the 1 operation procedures, the facility and equipment, the use of the facility and other technical specifications . . .

provide reasonable assurance . . . that the health and safety of the public will not be endangered." (emphasis supplied). I It is this standard -- whether the health and safety of the public will be " endangered" -- which the I

. Commission is required by both the Atomic Energy Act and

its own regulations to apply to the UCS contentions here in issue.* Any lesser threshold of sensitivity would offend the Act as it has been construed, and also the pertinent Commission regulation. It is of course well-established that administrative action inconsistent with the regulatory body's own written rules deprives a regulated entity of due process, and will not be sustained by the courts.

An analogous situation arose in Power Reactor Development Co. v. Electrical Union, 367 U.S. 396 (1961),

where a prospective utilization facility construction permittee had been required by the court below to meet a more rigorous risk standard ** than that set forth in the Atomic Energy Act or the AEC regulations. Af ter holding that a predecessor version of 10 CPR S 50.40 setting forth the "endan-gered" standard " comports with the requirements of S 182 (of the Act]

concerning the issuance of a license to operate," 367 U.S. at 407, the Supreme Court reversed the lower court and rejected its more difficult safety standard as incompatible with the Act and the applicable regulations. The Court held that:

• As with the companion provisions of the Act quoted above, the Commission's regulations make clear that the " endangered" )

standard is also applicable to license revocations. See 10 CFR S 50.100.

• • The lower court would have required a showing of " compelling reasons" for the construction of the facility in order to obtain a construction permit. See 367 U.S. at 414.

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"[T]he position (that a different standard may be applied] is without merit. The statute and regulations say nothing about ' compelling reasons.'" 367 U.S. at 414.

Just as applying the " endangered" standard was held essential in the Power Reactor case, so too must that standard be applied here in order that the requirements of the Act and NRC regulations be carried out. The application of any other standard would f rustrate the Congressional mandate of the Act. As the Supreme Court observed in that case, the Congress is required by the Act to regularly review the state of the atomic energy industry, but has never seen fit to either amend Section 182(a) of the Act, or to reject the Commission's " endangered" standard.

The Commission has itself recently reconfirmed its own " endangered" standard as set rorth in 10 CFR S 50.40 in Petition for Emergency and Remedial Action, CLI-78-6, 7 NRC 400 (1978), where the Commission stated that:

"The Commission must have ' reasonable  !

assurance' that public health and safety l are not endangered by its licensing actions."

The " risk" of Indian Point must statutorily also be !

considered in tandem with "the common defense and security" under Section 182(a) of the Atomic Energy Act. Most of the power needed to replace Indian Point when it is not in operation is generated by impoeted oil. In order to fulfill the Congressional mandate it will thus be necessary in connection with any Licensing Board or Commission con-l

sideration of risk that evidence be presented on the extent of the national security csnsequences accompanying an in-creased oil usage of 20 million barrels a year.

Under these circumstances, and as required by both the Congress and the Commission's own regulations, the criteria to be applied by an Atomic Safety and Licensing Board in con-sidering the acceptability of the risk posed by Indian Point must necessarily be whether continued operation of the units would endanger the health and safety of the public, and must include consideration of all national security ramifications.

POINT VI ANY ADJUDICATORY PROCEEDINGS MUST CONSIDER THE ENERGY ENVIRONMENTAL, ECONOMIC AND OTHER CONSEQUENCES OF A '

SHUTDOWN OF INDIAN POINT Any balanced inquiry into the regulatory merits or demerits of Indian Point should consider not only the risks of plant operation, especially in comparison to the risks posed by nuclear plants in general, but also the direct and in-direct costs of not operating the plant. Under the Atomic Energy Act, the Commission is charged with, inter alia, protecting the "public welf are." When the Commission decides to initiate proceedings to modify, suspend or revoke a license, that re-sponsibility must surely include a thorough consideration of all of the consequences to the public of the relief sought.

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In the case where a shutdown of a nuclear reactor is sought, if the Licensing Board ietermines that the petitioner has established sufficient grounds to support its claims, then any further Board inquiry should at a minimum include an exami-nation of the energy, environmental, econcaic, national security, public health and other consequences of the proposed regulatory action. A careful inquiry into these subjects is not only material and useful in resolving the shutdown issues, it is essential.

This in especially true in view of the nation's perilous dependence on foreign oil, continuing inflation, and increasing unemployment.

Any Commission policy change which could conceivably force a shutdown of the Indian Point units, and which would affect the entire nuclear power industry, must be considered in a thorough, deliberate and judicious manner.

Respectfully submitted, CONSOLIDATED EDISON COMPANY POWER AUTHORITY OF THE STATE OF NEW YORK, INC. OF NEW YORK Licenses of Indian Point Licensee of Indian Point Unit 2 Unit 3 4 Irving Place 10 Columbus Circle New York, New York 10003 New Yo rk , New Yo rk 10019 (212) 460-4600 (212) 397-6200 Brent L. Brandenburg, Charles M. Pratt, Of Counsel Of Counsel I

Dated: New York, New York j June 20, 1980 '

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