ML20039B601

Response to Licensee 811125 Motion for Stay,Dismissal or Certification.Aslb Has Power to Certify to Commission But Does Not Have Power to Stay or Dismiss Proceeding.Issues Should Be Dismissed Sua Sponte.W/Certificate of Svc

ML20039B601
Person / Time
Site:	Indian Point
Issue date:	12/18/1981
From:	Blum J, Holt J, Jordaan W, Jordan W HARMON & WEISS, PUBLIC INTEREST RESEARCH GROUP, NEW YORK, UNION OF CONCERNED SCIENTISTS
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-SP, NUDOCS 8112230290
Download: ML20039B601 (9)

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f UNITED STATES OF AMERICA COLXETED NUCLEAR REGULATORY COMMISSION LT::7

'81 DEC21 P3:16 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 0.-I V 1~SECRE DDCE.E :MG & SEftV!CE BiiANCH In the Matter of )

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CONSOLIDATED EDIS0N COMPANY OF NEW YORK ) Docket Nos. 50-247 SP (Indian Point Unit 2) ) 50-286 SP

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POWER AUTHORITY OF THE STATE OF NEW YORK )

(Indian Point Unit 3) )

RESPONSE OF UNION OF CONCERNED SCIENTISTS AND NEW YORK PUBLIC INTEREST RESEARCH GROUP TO LICENSEES' MOTION FOR A STAY, DISMISSAL, OR CERTIFICATION

• INTRODUCTI0'N On November 25, 1981, the Licensees filed a 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.

At the direction of 'the Board, Union of Concerned Scientists (UCS) and New York Public Interest Research Group, Inc. (NYPIRG) respond herein to the Licensees' Motion on the narrow question of whether the Board possesses the authority to stay or dismiss this proceeding or to certify to the Commission the issues raised in the Licensees' Motion.

We have concluded that the Board is empowered to certify to the Commission, butnottostayArdismissthisproceeding.

Although the Board has the authority to certify, the issues presented by The following intervenors have agreed to join in this response written and submitted by UCS and NYPIRG: the Greater New York Council on Energy, Parents Concerned About Indian Point, Westchester People's Action Coalition, Inc.,

Friends of the Earth, Inc., West Branch Conservation Association, Rockland 1 Citizens for Safe Energy, and New York City Audubon Society. ,

8112230290 811218 3 PDR ADOCK 05000247 f G PDR Ij l

the Licensees' Motion are not sufficiently serious or meritorious to warrant certification. 3ecause certification is at the Board's discretion, 10 C.F.R. .

Sec. 2.718(i), we urge the Board to deny the request sua sponte, and to deny the Licensees' Motion in its entirety. Should the Board desire to consider the certification request seriously, we ask that a briefing schedule be set 9 providing parties the opportunity to submit substantive arguments on the merits of the issue at the appropriate time.

4 I. THE BOARD HAS NO AUTHORITV TO STAY OR DISMISS THIS PROCEEDING.

This proceeding was initiated by UCS on September 17, 1979 with the filing of a petition with the Nuclear Regulatory Comission for the suspension of operations of Indian Point Units 2 and 3 and the review of safety issues in light of the extremely high population densities in the area of the facility.

The petition was referred to the Director of Nuclear Reactor Regulation, who granted it in part and denied it in part in an order of February 11, 1980.

The Comission later approved publication of a notice soliciting public coment on the D: rector's decision. 45 Fed. Reg.1196 (Feb. 22,1980). On May 30, 1980, the Comission responded to those coments with an order-setting forth a "four-pronged approach" to resolution of the safety issues, which included a discretionary adjudicatory hearing, "with the decision on the merits to be made by the Comission itself." Id. at 2. The other three prongs consisted of an expedited informal proceeding to detennine issues and criteria, generic consid-eration of the question of reactor operation in areas of high population density, and the establishment of an intra-agency task force to review issues concerning interim operation.

In July of 1980, after the Task Force study had been completed, Licensees filed with the Comission a Motion for Reconsideration of That Part of the Commission's Order of May 30, 1980. Which Directs Adjudicatory Hearinas. The

Licensees argued that in light of the Task Force's conclusion that the risks at I6dian Point were no greater than at other facilities, there was no basis

' 'for" singling out Indian Point .for a unique adjudicatory proceeding. -

- fn an. order dated January 8,1981, the Commission rejected those arguments and fingly reiterated its comitment-to holding adjudicatory hearings. Refusing to treat the Task Force report as the " final word" on safety at Indian Point, the Comissibn noted the importance of " testing" the Task Force's conclusions in an adjudicatory setting. I_d. at"6. Furthermore, the Task Force report was found z not, to " answer all of th question which the Commission wishes explored by the C .N ticensing Board in a full ~ proceeding." The Commission's specific questions,

,z o, listed ']n the January E ' order, ~were subseauently modified in its order of s ' S'eptem'be'r 18, 1981 (CLI-81-23).

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s After failing to obtain dismissa1 of this proceeding from the Comission,

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Ythe Licensees have now moved this Board to stay or dismiss it or to certify the t

ihsuestotheCommission. Not only does the Licensees' Motion ask the Board 3 to contradict the expressed intentions of the Commission, but it asks the a Board to tAke action for which it has no authority. The rule is clearly establishcd thattlicensing boards "are delegates of the Commission and exercise only thess powers which the Comission has given them." Public Service Co. of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-316,

'3 NRC 16,7,170 (1976) (in proceeding on health and safety issues, licensing board had no authority to accept petition to intervene on antitrust issues);

Northern Indiana Public ServiccCo. (Bailly Generating Station, Nuclear 1),

ALAB-249, 8 AEC 980, 987 (1975) (licensing board had no authority to provide l

for discovery measures precluded by Commission's order); Houston Light and Power C6~.M (South Texas Units 1 and 2), ALAB-381, 5 NRC 582 (1977) (licensing board had no independent authority to reopen construction permit proceeding).

In Marble' Hill, the limitations on the Board's powers were found in the Com-ission's hearing notices, which referred only to health and safety issues, and s

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not to antitrust matters.

The limitations on the Board's powers here have been even more clearly .

delineated. The Commission has called for this adjudicatory proceeding in no e

less than three separate orders. It has already rejected a motion by the Licensees to dismiss the proceedings, indicating in doing so that it considers j the adjudicatory hearing to be a necessary forum for testina data from other i

- sources. Order of January 8 at 6. In rejecting the Licensees' Motion for  ;

Reconsideration, tne Commission emphasized the importance of developing answers to ,

its specific questions in the context of a " full proceeding." I d_. To dismiss .

i the proceeding in the face of this clear mandate to answer the Comission's questions would be an abuse of the Board's authority.

The Commission has clearly empowered the Licensing Board to develop recommendations on its questions, not to dispose of those questions summarily.

In fact, the Board has been instructed not to make an initial decision, but instead to formulate recommendations to the Comission based on those questions.

The Comission has clearly reserved the " decision or. the merits" to itself.

Order of May 30 at 2. It is therefore inconceivable that a Licensing Board which has been restrained from making any final decision in this proceeding could be empowered to dispose of the entire case in sumary fashion.

The Cosnission has also limited the amount of time allotted to the Board to develop its recomendations to within one year from September 18 order.

Order of September 18 at 5. Unless othemise permitted by the Commission, the Board is required to adhere to this timetable. In light of this extraordinarily tight schedule, the Board would be unable to grant a stay without delaying its final recomendations to the Comr.ission, thereby violating the Comission's order.

The Commission's commitment to these proceedings, first made in the order of May 30, 1980, has been tested and reemphasized in the orders of January 8,1981 and Septembe- 18, 1981. In light of this strong and clearly expressed commitment

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l to the holding of an adjudicatory hearing, the Board has no authority j to dismiss or stay this proceeding. .

l II. DISMISSAL OF THE MOTION IN ITS ENTIRETY IS PROPER AT THE PRESENT TIME BECAUSE THE ISSUES RAISED IN LICENSEES' MOTION ARE NOT APPROPRIATE FOR CERTIFICATION TO THE COMMISSION.

UCS and NYPIRG believe that the Licensing Board has the authority to certify the issues raised by Licensees to .the Comission pursuant to 10 C.F.R. 2.-718(i). However, the issues presented in the Licensees' Motion have beeen considered by the Commission previously. Furthermore, the legal theories contained in the Motion are sufficiently farfetched as to not justify taking up more of the Commission's time. We urge the Board to deny the motion sua sponte.

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p ctfully submitted

$ AAM, i 2/A+1 rk ity Law Scho 423 Vanderbilt Hall 40 Washington Square South New York, New York 10012 AI L 4v, 4 -

~aM Tilliam'S. Jordan, III /(f' Hamon & Weiss / (/

1725 I Street, N.W., ite 505 Washington, D.C. 2006 10

'V Jf n Holt ff w York Public Interest Research Group, Inc.

Beekman Street New York, New York 10038 l

Dated: December 18, 1981 I

UNITED' STATE 5 LF A!'.EF.ICA DQ;,,K NUCLEAR REGULATORY C COMMISSION"(TEr-l

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'81 DEC 21 P3:16 BEFORE THE ATOMIC SAFETY AND LICENS1 rig BOARD s' Fik: , IECF.ETAH: 'i D3CKEhMG & SERV!CE ,

ERANCH In the Matter of )

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i CONSOLIDATED EDISON COMPANY OF NEW YORK ) Decket.Nos. 50-247 SP .

4 (Indian Point Unit 2) ) 50-286 SP

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POWER AUTHORITY OF THE STATE OF NEW YORr: )

(Indian Point Uni 3) }

CERTIFICATE OF SERVICE i

This is to certify that copies of " RESPONSE OF UNION OF CONCERNED SCIENTISTS AND NEW YORK PUBLIC INTEREST RESEARCH GROUP TO LICENSEES' MOTION j FOR A STAY, DISMISSAL OR CERTIFICATION" have been mailed first class, postage prepaid, on December-18,1981 to the following: .

t Lcuis J. Carter, Esc. , Chairman - Janice Moore, Esc.

Adrinistrative Judae Office of the Executive Lecal atcFic $afety 3nd Licensing ECarc' DireCIOr L.~S. N; clear Feculatory Corrissien c.S. Nuclesr Regulatcry Commission s Wasnington, D.C. 20555 Washinoton, D.C. 20555 Er Oscar H. aris Brent L. Brandenburc, Esc.

Adrinistrative Judoe Assistant r-eneral Counsel atomic Sa#ety erd ficensinc Board Consolidated Ediscr Cc.

U.S. Nuc'. ear Reculatory Commission of New York, Inc.

Washinoton, D.C. 20EE5 4 Irvinc Dlace' New York, NY 10003

v. r Frederick J. Shon AcT.insitrative Judoe Charles M. Dratt, Esc.

Atomic Safety and Licensing Board Assistant General Counsel l'.S. Nuclear P2?ulatory Commission Dower Authority of the State of I Washington, D.C. 20555 New York 10 Columbus Circle 4 Docketing and Service Section New York, NY 10019 -

Office of the Secretary U.S. Nucitar Reculatory Comnission

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- " . Ellyn R. Weiss,'Esq. Charles J. Maikish, Esc.

William S. Jordan, III, Esc. Li'.ication Division Harmon & Weiss The Port Authority of 1725 I Street, N.W. , Suite 505 New York and New Jersey Washington, D.C. 20006 One World Trade Center New York, NY 10048 Jeffrey M. Blum, Esq. -

New York University Law School Ezra I. Bialik, Esq.

423 Vanderbuilt Hall .

Steve Leipsiz, Esa.

40 Washington Souare-South Environmental Protection Bureau New York, NY 10012 New York State Attorney General's Office Pat Posner, Spokesperson Two World Trade Center parents Concerned About New York, NY 100?7 Indian Point P.O. Box 125 Alfred B. Del Bello Croton-on Hudson, NY 10520- Westchester County Executive Westchester Ccunty Charles A. Scheiner, Co-Chairperson 148 Martine Avenue Westchester Peoole's Action Coali- New York, NY 10601 -

tion, Inc.

P.O. Box 488 Andrew S. Roffe, Esc.

White Plains, NY 10602 New York State Assembly Albany, NY 12248 Alan Latman, Esq.

44 Sunset Drive Renee Schwartz, Esq.

Croton-on-Hudson, NY 10520 Botein, Hays, Sklar & Herzberg Attorneys for Metropolitan Lorna Salzman Transportation Authority Mid-Atlantic Representative 200 park Avenue Friends of the Earth, Inc. New York, NY_10166 208 West 13th Street New York, NY 10011 Stanley B. Klimberg General Counsel Zipporah S. Fleisher New York State Energy Office West Branch Conservation 2 Rockerfeller State Plaza Association Albany, NY 12223 443 Buena Vista Road New York, NY 10956 Judith Kessler Rockland Citizens for Safe Honorable Euth Messinger Eneray Member of the Council of the D.0. Box 74~

City of New York New City, NY 10956 District 34 City Hall Eric Ole Thorsen New York, NY 10007 Assistant County Attorney County of Rockland l Greater New York Council 11 New Hempstead Road

. . on Energy New City, NY 10956 i c/o Dean R. Corren, Director

New York University Richard L. Brodsky 1

26 Stuyvesant Street County Office Building New York, NY 10003 White Plains, NY 10601 I-

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Sec#f-e Cctb Dyar, Mayor George '.' Beoany Vil.: ace c:..sucnanan Ccns er.43: ion Cc=1 :et Chti'<.an, Direc:ce 236 Tate Avenue

• e< Yerk City Audubcr Society Euchanan,!!Y 10511

7. ',-lest 23rd Street, Suite 1828

,e ve icn , NY 1001C-I l

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UNITED STATES OF AMERICA CDCKETEP NUCLEAR REGULATORY COMMISSION N

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31 DEC 21 P3:16 I BEFORE THE ATOMIC SAFETY AND LICENSING BOARD (E?!CI ]? EECREl AF i DOCELiir1G & SERVICE BRANCH .j i

In the Matter of -

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CONSOLIDATED EDIS0N COMPANY OF NEW YORK ) Docket Nos. 50-247 SP (Indian Point Unit 2) ) 50-286 SP

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P0',!ER AUTHORITY OF THE STATE OF NEW YORK )

(Indian Point Unit 3) ) --

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N NOTICE OF APPEARANCE ON BEHALF 0F UCS E%EO

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Notice is hereby given that the undersigned will a#"eaW p 0 7331,%

CidIT}{97ng.a this matter 'on behalf of the Union of Concerned Scientis s',  %'48 J Name: Jeffrey M. Blum, Esq. TS' Address: New York University Law School 423 Vanderbilt Hall 40 Washington Square South New York, New York 10012 Telephone: (212) 598-3452 bk, MEFFREY M. BLUM N_

DATED: December 18, 1981 9 5o3 5

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