ML20027B576

Memorandum & Order CLI-82-25 Providing Guidance Re ASLB 820909 Memorandum & Certification of Questions.Each Party Required to Include Discussion of Probability of Accidents Leading to Alleged Accident Consequences.Addl Views Encl

ML20027B576
Person / Time
Site:	Indian Point
Issue date:	09/17/1982
From:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
To:
References
CLI-82-25, NUDOCS 8209210302
Download: ML20027B576 (25)

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USNRC UNITED STATES OF AMERICA 82 SEP 17 P4:34 NUCLEAR REGULATORY COMMISSION 0FFICE OF SECRt.IM -

00CKEipG & SERVIC?

COMMISSIONERS:

oRANCH Nunzio J. Palladino, Chairman Victor Gilinsky John F. Ahearne Thomas M. Roberts SERVED SEP 201ajg2 James.K. Asselst1ne In the Matter of

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CONSOLIDATEDIEDIS0N COMPANY OF NEW YORK

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Docket Nos. 50-247 e

50-286 (IndianPointUnit.2)

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POWER AUTHORITY.0F THE STATE OF

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NEW YORK-

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(Indian Point Unit 3) -

ORDER CLI 25 The Commission issued a Memorandum and Order on July 27, 1982 offering guidance to the Licensing Board in this special proceeding.

CLI-82-15.

The Board has now certified several questions to the Commission regarding its intent in issuin.g that Memorandum and Order and the future course of the proceeding in light of recent developments in emergency planning.. Memorandum and Certification, A> gust 9, 1982 (hereinafter " Board Order").

Those questions are as follows:

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Must each witness's testimony address both consequences and probabilities, or must each party address both factors in its direct case?

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Alternatively, may we hear a combination of consequence and probability testimony taken from different sources, e.g., from the testimony of witnesses presented by different parties, or from cross-examination?

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Shall we continue to hear evidence on the " status and degree of confonnance with NRC/ FEMA guidelines" aspect of Question 3 and the " improvements in the level of emergenc'y planning" and

" time schedule" aspects of _Comission Ques _ tion 4?

2b.. If we. limit our. proceeding.to the minimum hours warning"

. aspect of Question 3 and the'"other specific bffsite emergency procedures" aspect of Question 4, should we. investigate those a

matters as they are now or as they are expected to be in four months?

Board Order at 4-6 [ footnotes omitted].--

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Questions la and Ib are. motivated, the Board tells the Comission, by a concern that its_ order might mean that only those witnesses who can qualify as experts in multiple and diverse fields.can testify on accident risks..That was 'not the Comissi.on's intenti.on.

It intended '

that each party (or each group of parties consoPidated by the Board I)

I be required to,includeCin any direct testimony and related contentions (and underlying bases) that it may choose,t.o file on accident consequences a discussion of the probability of the accidents leading to the alleged c.onsequences.

It is clearly not sufficient for a party offering testimony and contentions on consequences to rely on other jarties to. develop the issue of probability.

Each party offering testimony on consequences must offer.at least a discussion of probability for the Indian Point plants.

That discussion may be based on information which was ' developed by another party, including the staff E

See 10 CFR 2.715a.

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3 or licensee.2/ Because it was necessary for the Comission to reiterate its guidance after the hearing had comenced, the Board can allow any testimony already heard to remain in the record. However, for any already accepted testimony on consequences th Board itself is directed to develop the necessary linkage to accident probabilities for the Indian Point plants-to insure the testimonytis useful-to the Comission

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in assessing risk.

For any testimony-not yet heard, the Board is

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directed to require a~ discussion of the probability of the accident

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sequence for-the Indian Point reactors that will lead to the consequer)ces to be discussed..

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In 1980 the NRC staff did-a preliminary risk analysis for the Indian Point plants. The staff concluded that, compared with other U.S.

o operating nuclear power plants, the consequences of an accident' at

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Indian Point would be about an order of magnitude greater but that the probability of an accident was about an order of magnitude less. Thus the risks were comparable. However, in its order of January 8,1981, the Commission stated that the risk analysis report was to be " tested in an adjudicatory setting wilere parties may present additional or' rebuttal

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evidence."

CLI-81-1, 13 NRC 1, 5. ~This hearing was to be focused on the. risk of the Indian Point plants compared with that for other U.S.

planfs.

In the past, those opposed to operating plants have criticized 5/ ' That information should be available to parties before the hearing through discovery.

It should be available in the record through either direct testimony or cross-examination (e.o., for assumptions, calculations and other information underlying the direct testimony).

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the NRC's staff probability estimates, while themselves merely discussing consequences. There is substantially less controversy over the consequences than the' probabilities. Thus, in this hearing, the real focus should be on the probabilities. Since the consequences are a function of what is released, the risk will be directly affected by the probabilities of release.

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.A party providing testimony on consequences must provide at least some discussion of probability. The probability discussion should be at least as detailed as the consequences discussion so that risk can be discussed in the same level of detail. We would anticipate that the Board would in its discretion give varying weight to testimony depending on its level of detail.,

Turning to Questions 2a and 2b, the Board notes that the NRC staff has started the "120-day clock" pursuant to 10 CFR f 50.54(s)(2)(ii) as a result of a July 30, 1982 report by FEMA in which FEMA found deficiencies-in the Indian Point emergency plan.

Board Order at 5.

In 1.ight of this development, and based upon the Commission's perception that to hear testimony regarding what is likely to be a rapidly changing situation would be wasteful of the time and resources of the Board and the parties, the Commission believes that the Board can (after reconsidering its rulings on the contentions and completing any necessary prehearing matters) proceed first to take evidence on Commission questions 1, 2, 5, 6 and 7.

Then the Board can take evidence on questions 3 and 4 under the Commission guidance previously provided.

If the concerns that prompted the Board to certify questions 2a and 2b S

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5 remain at the conclusion of the testimony on these other Comission questions (i.e., questions 1, 2, 5, 6 and 7), the Board can return to

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the Comission for furthe'r guidance if needed. The Comission I

. recognizes that evidence on plant risks (.in particular questions 1 and

5) may depend to some extent on assumed levels of emergency response.

- However, it believes that the parties ca'n p('esent testimony concerning 3

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accident risks. based on assumptions as to ranges of ' emergency responses. ~~~ ~

Any disputes as to the feasibility or likelihood of particular-emergency response testimonial assumptions can be either add'ressed expeditiously without inquiring into detaiis of questions 3 and 4 or postponed until questions 3 and 4 ar'e addr'essed on thefi merits. '

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The Commission has received coments on the certified questions from various particip~ ants in the proceeding and a request by the Union of Concerned ~ Scientists, 'thh New York Public Interest Research Group, Friends of the Earth,'Inc., The New York City Audubon~ Society, Parents Concerned About Indian Point,' West Branch Conservation Association, Westchester Peoples Action Coalition, and Dean Corren that they be afforded an opportunity to address the Commission orally regarding the questions. The Comission has considered these comments in making its finaf decision and does not believe that oral presentations at this time woul[beuseful. Ac'cordingly, the request for oral presentations is denied.

Commissioners Gilinsky and Asselstine dissent from this Order.

The separate views of all Commissioners are attached.

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It is so ORDERED.

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For the Comission, I\\

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• SAMUEL J CHILK I

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., Secretary of th Comission x

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. Dated'at ashington, DC thisf7 day of at v,.1982, 4

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SEPARATE VIEWS OF CHAIRMAN PALLADINO

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I believe that the Commission is not' requiring that each

' party provide witnesses able to present and support hn' dependent'lyitscaseonprobabifity.

In my opinion, that

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is not what the Commiss' ion order siys and that is not what I' intended. ~~In preparing testimo'n'i, a party will have access, through discovery and through 'estimony and x

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cross-examination f rom any' earlier-hea' ring se'ssions, to. _

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.n:, 7' information de'veloped' by the other ' parties.

Its discussion of probability may rely on that information.

I expect that information which has been obtained through discovery and which is not in the recor'd at the time of 'such discussion

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will become a part of the record when the other' party presents its witnesses and those witnesses are cross-examine'd.

As the o'rder provides, eac'h party that addresses consequences must include a discussion of the probability of the accident sequences at.the Indian Point plants leading to the alleged consequences.

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ADDITIONAL VIEWS OF COMMISSIONER AHEARNE l '.

When it comes to intent, I can. speak only for myself.. Over the last two years there have been seven Commissioners

-involved in writing numerous Indian Point orders.

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have to vouch for his own private thoughts.

However, I have participated in Commission, discussions from the very beginning

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,~.My own objectives,-and the Commission's objectives as I

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understand them, have' remained unchanged.

The purpose of the proceeding was to gather information which would help the Commissioners assess.the risk at Indian Point in light

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of the population density issue and compare it to risk at

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other plants.

We wante.d further information on a very g.

specific area, not a wide ranging discussion of the Indian

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Point plants.

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The measure of risk is a combination of probability and consequences.

A. discussion of consequences alone is not helpful.

I believe we all recognize that release of a very

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large amount of radiation on Manhattan is a catastrophe.

That is not the issue.

In assessing release situations that are, going to lead to major consequences, we need an integrated discussion of the accident sequences that lead to those releases, the likelihood of those. sequences, and then the consequences.

This is why, in explaining the very first 9

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question which dealt with risk, the commission directed

" Attention shall be ' given both the probability 6f occurrences

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of releases and to the environmental consequences of such releases....Thus, a description of a~ release" scenario ~ must include a discussion ~ of the probability' of such a release for the specific Indian Point plants."l/

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Th'e Commissioners recognizbd that' soh&'p'a'rties' might face

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limited capabilities in this area.~ That is why we specifically-

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chose the word " discussion" rather than ~ " calculation" or

" estimate."2/~It was 61early not~our intent to~ require each party.to come with ' a cattery of specialists 'ih ~ support of a full blown probabilistic risk assbssm6nt.

It does mean testimony should address the issue 'of probabilEty and there f

should be~ some basis for any assumptions made.

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In answer to the charge'that'I sould' require intervenors.to 9

this send great armies into the field to do calculatiens, order makes clear intervenors may use staff or licensee studies--with the. proviso they.be for. Indian Point, rather I

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than for reactors in general.. When someone argues that

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consequences of accidents should dominate judgment about operatibn of the Indian. Point plants, that person at least l

l must give attention to the probability of those consequences.

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1/ " Memorandum and Order," CLI-81-23, 14 NRC 610, 612 (1981).

2/ Tr.,11-14 (September 18, 1981) (Commission meeting to discuss language in CLI-81-23).

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Thus, if the consequence presentation is described as "very large," then the probability discudsion can also use general terms.

If' the consequence testimony, gets to the level of detail

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of "1500 fatalities in the first 4 hours4.62963e-5 days <br />0.00111 hours <br />6.613757e-6 weeks <br />1.522e-6 months <br /> due to close to a 400 rem

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dose being received at 20 miles," then the. probability discussion'

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400 rem to be. deposited at 20 miles," with either the calculation or the reference given.

I would expect.the Board to be much more 2

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demanding.of a nuclear engineer or physicist witness--a person who_.,,,J._.

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has been trained in technical ca'lculations--than of a non-technical witness.

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%a Some argue the~ hearing should serve as an educational process.

If so, I believe it would be very educational for tho e who in the '

past have only talked a out consequences to be forced to'look at probabilities of release, just as it is also useful for those who only deal in probabilities of release to be forced-to consider consequences.

Testimony on emergency planning involves a distinct set of questions.

As I understand it the Commission intended to allow testimony con-cerning emergency planning within ten miles -(the plume exposure emergency planning zone) without any specific link to risk or popula-tion density.

In order to discuss planning beyond ten miles,' a party was obligated to relate its proposed discussion to the risks posed by the Indian Point plants.3/

3/ See Qu,estion 3; cf.

50.47 (c) (2).

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4 However, it is necessary to keep the basic objective in mind.

The intent was to obtain information which would be helpful in evaluating the risk at Indian Point, not to m

e determine and enforce compliance with_the emergency planning

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regulations.

Compliance w th the regulations is. being addressed through a separate, hopefully much faster, process.

Since the basic _ objective is to provide,information which

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" the commissioners can' consider in ~evaluaEing risk, it is.

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appropriate that we attempt to have information which.will be most useful for that consideration.

It will be of little use to us if the information we receive. is clearly outdated.

Since the status of emergency planning appears to be changing 4

more. rapidly than other' areas of ' interest, it makes sense to i

n me to take testimony on emergency planning last.

Testimony in other areas 'will not become 'date'd as quickly, and we will have the benefit of more accurate information on emergency planning.

Finally, I would like to make. it clear that in. developing and supporting the recent -Commission _ direction to the Licensing Board, my objective was to address the Licensing Board's general. interpretation of the Commission's ground rules rather khan to achieve a particular result with respect to specific contentions or testimony. Based largely on discussion in th~e Board's orders, I did not believe it was using the basic framework the Commission tried to establish.

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I obviously disagree with. Commissioner Gilinsky's characteri-zations of the Commission's motivation in taking action as well as his interpretatio.ns of the intended consequences of these actions.

In addition, I note the referenced ACRS

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discussion'had no direct and only slight indirect application ra _..= i-

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to the probability issue involved here.

The interee.ted r ~:, ;

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.~ s, reader definitely should refer to the.transcrip,t of.the.ACRS

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. discussion rather than accepting the view of either Commissioner.""',.-

I agree with' the descrip' tion of the' Commission proce's's as indicated by Commissioner Roberts.

I also concur in Chairman Palladino's views.

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ADDITIONAL VIEW OF' COMMISSIONER ROBERTS Administrative Judge Louis J. Carter resigned from the Atomic Safety.

-.and Licensing Board Panel, stating that the Comission does not " share his concern for the processes'which regulate the resolution of these matters."

To the contrary,'due to my concern that the Board apparently.did not uncherstand the task' assigned to it and had changed the nature of the Indian Point proceeding'from that established by the Comission, I voted for the ~

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. July :27 prder.' That order restated earlier Ccmmission guidan.ce and ordered ? -

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the Board to review expeditiously its orders and actions so as 'to make them.

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consistent,with. Commission guidance.

A little background will explain the -

Commission's action, and hopefully improve the understanding of the nature of 1 --

this hearing. -

In May 1980,.the Commission dec.ided to respond;to the Union of Concerned t

,..e Scientists (UCS') petition to suspend operation at Indian Po' int Units 2 and 3 by holding a trial.-type hearing on specific Commission questions regarding Indian Point. The proceeding is to investigate'UCS's assertions that Units 2 and 3 should be ' closed due to the density of nearby population. Specifi-cally, the Commission wanted parties to address the question of how the risk posed by Indian' Point Units 2 5nd 3 compared with the range of risks posed by other nuclear power plants licensed by the NRC.

Subsequently, the Commission concluded that Units 2 and 3 should a.

continuf to operate during the hearing. This decision was based, in part, on the conclusion of a Task Force formed by the Commission to determine the

' comparative risk of interim operation of Units 2 and 3.

The Task Force concluded that the overall risk of the'-Indian Point reactors is about the same as that of a typical reactor on a typical site.

In the order e e me

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authorizing continued operation, the Comission again explicitly stated that the primary concern to be addressed in, the hearing was the extent' to which the population around Indian Point affects the riN posed by Indian Point as

. compared to the spectrum o'f risk posed by other" nuclear power plants.

'Further, the Comission explained. ts interest in' emergency planning in the i

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vicinity of ~the plant.

It indicated that the difficulty of evacuation in an

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emergency is a component of the risk to individuals.

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Before the proceeding began, the Comissiqn issued a third order clari-

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e y.-(: fying its_ intent.

It emphasized.that the Board was to conduct a focused '-.

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proceeding and that the Board was empowered to accept only those contentions

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which seemed likely to be important in resolving the. Comission's questions.

Because the proceeding is to focus on the risk of operation of Units 2 and 3 in light of population den,sity, the Commission required parties to discuss the probability of a particular accident asSell as the consequences.

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is defined not on.ly as consequences, but also as the probability that those Because the coinnission. concluded that re-consequences will' be realized.

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quiring parties to do calculations or. estimates of risk would be too diffi-

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cult, it merely' required a discussion of probability. The NRC Staff had already imposed requirements en Units.2.and 3 at the time it responded to the UCS petition.. Thus, the Commission required parties alleging that additional saf aty measures. were necessary to state why the additional measuressould result in a significant reduction in risk.

I Whe'n the Board issued its order setting out the contentions to be litigated in the proceedihg, I became aware that the Board apparently had not understood Commission guidance. My concern arose from Board statements that although it was mindful of the Comission's instruction to conduct a focused

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proceeding, the Board believed it should 'not limit its investigation by

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imposing inflexible legal standards." The Board admitted severa1 contentions that were so broad as not to address specifically Comission concerns and admitted others that were peripheral.

Additio'nally, the Board admitted contentions alleging severe _ consequences without even requiring a l

discussion of the probability of.such. consequences..

Given the Comission's conclusion that the Board was not implementing its p'rior guidance, the Comission undertook to clarify once more its

. hile recognizing the imminence.of the hearing, we also directions.

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__'..'... recognized the special' nature;.of;this. proc.eeding. ;I.t is one which did not '

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arise automatically under the Atomic Energy Act but was specially created by

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the Commission to address specif.ic Commission concerns.

In these circumstances, I believed the Comission was duty-bound to explain once again what it meant and to correct the course of the proceeding.

There has been a perception by some that. the 'Comission has changed the s

3 ground rules of the proceeding.or has been unfair..The Comission has done neither.

It merely repeated what has to be done in the hearing.

In its January 1981 order, the~ Comission stated that it would reach a final decision on the UCS petition by comparing the risk of Indian Point to the spectrum of risks posed by otaer licensed nuclear power plants. It is in the

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interests of all parties,.the Board and the.Comission that this issue be the focus of the Indian Point. hearing, and~that these hearings" proceed to an

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expeditious conclusion.

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I apree with Commissioner Ahearne's explanation of Commission intent underlying its July 27 Order and defer to his personal recollections of Commission intent recarding emergency planning as these discussions were conducted before I joined the Commission.

I also agree with Chaiman Palladino's views.

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L SEPARATE VIEWS OF COMMISSIONER GILINSKY

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I agree with Commissioner Asselstine's opinion that the y

Commission's further guidance to the Indian Point Board,

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contained in today's. Order, is erroneous, improper, and

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probably self-defeating.' I would only add a few words about e.

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the 'fi$st part of t'he' Cominission's Order which' fundamentally p'w.+ g*

misrepresents the Commission's original intent in launching

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this procee' dins,

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When it set up this fact-finding proceeding, the Commission

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s' instruc'ted'the hearing board to evaluate both the

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probabilities and consequences of accidents at the Indian- -

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Point plants.

The Commission majority now claims that this instruction applies. to each. -. party.

They now propose to ~

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rejectthefuturebestimony (and perhaps past testimony) on f, i. f. W:

accident-consequences provided by parties which are not

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prepared'or equipped to t'estify also on accident'.

probabilities.

Such a restriction is unprecedented in our hearings.

Moreover, it is inconsistent with getting all the relevant facts,'and it betrays an unseemly eagerness to be rid of these parties.

Because of the vagueness of today's Order, it is difficult to discern what the Commission's new requirement will amount to in practice.

If it can be satisfied by a passing reference to another party's testimony on the probability of accidents, this new requirement will be no more than an 3

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(Although in the process of, imposing this irritant.

requiremet, the Commi,ssion succeeded in shaking up the membership of a hearing board which seemed to the Commission majority to be too generous to the public participants.)

If, however, the Order is interpreted literally, this

-requ rement. may we_ll,elimin, ate some of_the. parties from th_e i

hearing.I The Commission would thereby lose the benefit ofn.,..

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. testimony.from some of t.he p. art.ies which.are most ~

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knowledgeable about local conditions \\.-. In either event,2 the' 30--M, s' s M~~

Commission'is actions.will mire this case in endless disputes about precisely how.2nu,ch testimony on probabilities is required and whether a party has satisfied this te,st.

• . 1 The majority's decision to im' pose this burden on the i.

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intervenors cannot be justified either on the basis of logic _

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or common s'ense.

A party testifying on accident f

consequences would gain no advantage by not filing testimony on the likelihood of accidents.

In the absence of such testimony, the Board would rely, to a greater extent than otherwise, on the evidence of the licensees and NRC staff, which is likely to be unfavorable to the intervenors.

1 The majority h~as attempted to modify this aspect of the Order by having two Commissioners agree with the separate views of the Chairman on the sort of " discussion" of probability which each party will be required to produce.

As these views are internally inconsistent, the majority succeeds only in confusing matters further.

In any event, this modification is of no legal significance since a Commission Order cannot be modified without a formal vote of the Commission.

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L Interestingly, the majority has taken the position that the Order does not require a party'which is prepared to testify only about probabilities to a'1so' sponsor testimony about consequences.

Apparently, the majority would be pleased to have s'omeone bring them good news on low probabilities

<u without dwelling on unpleasant ~consequenchs.

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has gone so 'f ar as to say' this h' earing is maii11y. about the

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'. - ),D probabilities of reactor-accidents at Indian Point rather

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b a :.cD E N' than a6o^ui tie poten'tikl conseqt$ences off s tek This' Nhj"

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en completes the' process'of standing the Indian Point hearing on its head.2 i

What in f act makes 'the Indi'an Point site st'a'n'd ' out, 'and what

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led to this hearingy.is Ehat the' surrounding area is'very densely populated and that it is close to New York City.

The question whic'h.th.e Commission.mus't answer i's whether the consequences of a serious, accident -- in terms of lives and property

".may be so large that, even taking into account 2 The Commission's discussion of this Order makes me wonder whether the Commission majority understands that a at probabilistic analysis of a nuclear power plant can, best, yield only a very rough indication of the overall likelihood of a serious accident.

Because of the lack of sufficient operational data, probabilistic analysis involves a lot of. educated guesswork.

As a result, wide error bands attach to the various parts of the analysis.

When such uncertainty factors are compounded in a long chain of events the final ~ result is very mushy -- as.we have just been informed by our advisory. committee.

.(See transcript of the meeting of the ACRS with.NRC Commissioners, September 10, 1982, particularly pp.,24-30.)

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reasonable estimates of the likelihood of such consequences, steps beyond those cur'rently contemplated in our regulations need to be taken.

Thitt is what the hearing should be about.3 Tinally,IstronglyagreewithbommissionerAsselstinethat the Commission's refusal to hear from the parties prior to affirming this Order will further undermine public Q

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_ confidence in the fairness'of our proceedings.

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Commission's majority loses no opportunity to confirm the worst fears of its critics.

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3 I would have preferred'at the outset of this inquiry to adopt a rule defining the criteria to be applied to high population density sites.

This proceeding could then have focused on whether Indian Point met the requirements of the rule.

Unfortunately, the Commission decided to do otherwise, apparently because it feared delay.

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yCKst6ru DISSENTING OPINION OF COMMISSIONER ASSELSTINE

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Before turning to my specific objections to the Commission majori-ty's responses to the. Board's ques.tions,.'a few ' genera 1 ' observations :

i about the present' status of this proceeding appear to be in order. The x/ 1 '

Commission' majority,'in defense of this order.and of'its July 27,.1982

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mis.tS:f2:.c order (CLI-82-15), steadfastly maintains that it is.only reiterating.the. -

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guidance given to the Board in the Commission's earlier orders in this

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proceeding. This assertion is' simply incorrect.

In its July 27,' 198'2 order, the' Commission. majority decided to impose at'this late stage of'the proceeding a number of stringent legal-

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restrictionsonthe[ontinuedpart{hipationofpartiesintheproceed-ing. -The'buFden of these restrictions fell almost entirely on the F

These restrictions. included, public participants in this proceeding.

among oth'e.' things,' the following:

r (1) a ' requirement that before admitting contentions addressing the second Commission' question ~, the Board must make a thre'shold

finding for each such cont'ention, based upon written material

- submitted by the proponent of the contention, that (a) there exists e

t significant risk to public health and safety, notwith' standing

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' measures already imposed by NRC, and (b) the additional proposed measures w'ould result in a significant reduction in that. risk; e

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(2) a requiremenNhat,the Board.now rsquire a statement of.

of ths bases for 'each cortention in order for the contention to cdntinue t'o be admitted;

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(3) a requireme~nt that thi Board dete'nnine for each

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-7 contention, prior to admitting the contentio'n','whether the' contention will contribbte materially to the resolution of the

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Commission's questions and what time and resources will be

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required to._ address the contention;. ' " '

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..va, (4) restrictions on the extent to which the Board may accept contentions that include challenges to the Comission's

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regulai; ions;: and *;' ~

(5) a requifement that a par'y seeking to present testimony 4

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on the consequenc6s'of'an accident scenario at the Indian Point plant must also present its'own' affirmative case detailing th

. probability thht:th5 acciden't scenario will occur.

I continu'e to believe that the imposition of these new restrictions constitutes' a radical and: unjustified departure from the gr~ound rules for this proceeding that were established in ti e Commission's January 8, h

198 (CLI-81.1)andSeptember 18,1981 (CLI-81-23) orders.

Contrary to the assertions of theTmajority, none of these new restrictions can be found in the Comission's pr6vious orders in this proceeding.

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Individual Comissioners may:well have intended. from the outset of this proceeding that one or more'of these restrictions apply.

If so, they failed to incorporate that intent in.the.comission's previous orders.

As our regulations make clear, the Comission's orders must remain the exclusive and, definitive source of guidance on the Com-Seef0CFRsection9.503.

In this. case, I believe

' mission', intent.

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that a fair reading of the Comission's previous orders can only lead to the conclusion that. the Comission major.ity is now.. changing the rules in N.O.

mid-stream...

m Predictably, the Comission majority's actions have, created a stom of controversy surrounding this proceeding.

In addition, they have resulted in the resignation-of the Chainnan of the Indian Point Board',. a distinguish'ed and well-respecte.d, member of our Atomic Safety and Licens-ing Board Panel.. At[present, the Indian Point proceeding is at a standstill; it i's unclear when the hearing will resume and it is even more uncertain when this proceeding will. reach a conclusion.

Perhaps in an effort to blunt the criticism now directed at the Commission and to spare the remaining members and a new Chaiman of the Indian Point Board. the acute embarrassment of having to reject imedi-ately large portions of the testimony already submitted by the public participants, the C~ omission-majority has agreed in this order to a small. concession regarding the continued admissibility of testimony a)r'eady submitted to the Board on. accident consequences.

Although this act, ion by the majority is a step in the right direction, I fear that it will do little to moderate the serious adverse impact of the majority's 9

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s iuly 27 order on the ability of th'e.public participants to participate meaningf.ully in this proceeding. !Indeed, one need look no further than the Se'ptember 1,' 1982 Coments to the. Board by the Power Authority of the State of New York regarding the Comission's order to reformulate contentions,-- a document that calls.upon the Board to strike most, if.;

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not all, of the contentions already admitted in this proceeding -- to see where this. proceeding may be heading.

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Probability and consequence testimony I am not participating irt the Comission decision on the Board's questions (question;1a. and Ib.) regarding probability and

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consequence testimony,. Thosel questions address the need for clarifica-tion of the majority,,'s rul,ing on contentions contained.in the Com-mission's July 27,,19B2,. order in this proceeding -- a ruling that I dissented f. rom at,the, time.

I continue to believe that the Board's inherent supervisory authority over the conduct of this, proceeding is, sufficient to assure a complete record that includes evidence on both the probability and consequences of postulated accident scenarios.

In that regard. I see no j stification for the majority's holding in this order that a party seeking to offer testimony and contentions on consequences may not rely on the probability testimony, including cross-examinat' ion, or con-,

tentions and bases of another hon-consolidated party.

The use of c

cross-examination by intervenors t,o' establish their case on contentions is a practice long embedded in our adjudicatory proceedings, and I see no reasonable basis for rejecting that practice in this proceeding.

Emergency Planning 2.

I do not. agree with the majority's response to 'the Board's

't questions (questions 2a. and 2b.) regarding testimony on the emergency 1

, planning issues.

I believe that we should address now the impact of the Regional Administrator's decision to start the "120-day cl.ock" rather than simply postpone resolution of this issue until the end of the l

Board's hearing.

Specifica11y, I woul'd advise the Board that it should.

continue to heaf evidence on the," status and degree of conformance with L

NRC/ FEMA guidelines" aspect of Comission Question 3 and the " improve-ments in the -level of emergency planning" and " time schedule" aspects cf Comission Question 4.

,In my. view, each of these elements relates directly to the ove'rall ~ risk. posed by the Inlian Point plants, and therefore must be considered as par.t of this proceeding.

I would direct

'the Board to treat'the-July 30, 1982, findings by the Federal Emergency Management Agency ase'stiablishin'g 'a': rebuttable presumption on the issue of the status and degree of conformance with the NRC/ FEMA guidelines, and L would direct the Board to allow the parties to present testimony on whether there are additional deficiencies in emergency preparedness beyond those identified in the July 30, 1982, FEMA report, and if so, how those deficiencies affect the risk posed by the Indian Point plants.

On the, " minimum hours warning" aspect of Comission Question 3 and the

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"other specific offsite emergency procedures" aspect of Comission Question 4, I would direct the Boa'rd to investigate those matters as they exist at the present time. Tinally, I would allow the Board to decide, in its discretion,' when to take testimony on the emergency planning issues (Comiss. ion Questions 3 and 4).

I believe the. Board is

. in the best position. to dicide~ the orderin wh'ich.th'e.Comission

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. Questions are.to be addressed in this proceeding:so as' to assure the efficient conduct of.the proceeding and the compilation of a record that addresses each of the Comission Question [

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UCS Request to address the Comission

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One final aspect of the Comission majority's action on this matter deserves coment.

On Iugust 2),1982, the Union of Concerned Scien-

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tists, a party to t.hi's proceeding', requested the opportunity to address the Comission before the Comission acted to affirm this order. The-majority declined to-hear.from.the parties before affirming this order.

I strongly disagree with.this action by the majority.

Given'the poten-tial significant adverse impact of this order on the future participa-

' tion by a number of parties to this proceeding, I would have afforded the parties an.opportuni.ty to address-the Comission on the subject of this. order.

Public confidence in.the fairness of this proceeding and in thef airness of our regulatory program in general has already suffered as a result of the Comission majority's July 27, 1982 order and the manner in which that decision was reached. Today's action simply makes matters worse.

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