ML20028F195

Response to ASLB 830107 Memorandum & Order Reformulating Contentions Under Commission Questions 3 & 4.Supports Elimination of Contentions 3.2,4.3,4.5 & 4.6.Certificate of Svc Encl

ML20028F195
Person / Time
Site:	Indian Point
Issue date:	01/24/1983
From:	Morgan C MORGAN ASSOCIATES, POWER AUTHORITY OF THE STATE OF NEW YORK (NEW YORK
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-SP, NUDOCS 8301310246
Download: ML20028F195 (21)

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DOCHETED Usta; e

UNITED STATES OF AMERICA 03 8N 28 IllIld NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD before Administrative Judges:

James P. Gleason, Chairman Frederick J. Shon Dr. Oscar H. Paris

_____________________________________________x In the Matter of Docket Nos.

CONSOLIDATED EDISON COMPANY OF NEh YORK, 50-247 SP INC. (Indian Point, Unit No. 2)  : 50-286 5P POhER AUTHORITY OF THE STATE OF NEh YORK,  : January 24, 1983 (Indian Point, Unit No. 3)

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x POWER AUTHORITY'S RESPONSE TO REFORMULATED CONTENTIONS UNDER COMMISSION OUESTIONS 3 AND 4 ATTORNEY FILING THIS DOCUMENT:

Charles Morgan, Jr.

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

Washington, D.C. 20036 (202) 466-7000 8301310246 830124 PDR ADOCK 05000247 PDR O

Preliminary Statement Power Authority of the State of New York (" Power Authority"), licensee of Indian Point 3 Nuclear Power Plant, hereby responds to the Board's Memorandum and Order (Reformu-lating Contentions Under Commission Questions 3 and 4) dated January 7, 1983 (the " January 7 Order").

The Power Authority supports the Board's decision to eliminate Contentions 3.2, 4.3, 4.5 and 4.6 for the reasons stated in the January 7 Order, and for the additional reasons stated in the Power Authority's Objections and Answers to Contentions of Potential Intervenors filed December 31, 1981 and the Autllority's Reply to Responses to Objections to Con-tentions of Potential Intervenors filed February 11, 1982 (collectively the " Power Authority's prior objections") .

The Power Authority also supports the rejection of the addi-tional contentions proposed by UCS/NYPIRG and Parents Concerned About Indian Point. With respect to the contentions reformu-lated or retained in the January 7 Order, we respectfully refer l

the Board to the Power Authority's prior objections, which we incorporate by reference as if fully set forth herein.

Accordingly, we devote the remainder of our response to objections to issues raised (1) by the reformulated conten-l i

tions which were not addressed in our prior objections; and (2) by the Commission's Memorandum and Order (CLI-82-15) dated July 27, 1982 (the " July 27 Order") providing further guidance. We respectfully suggest that the deletion of addi-tional unfocused and/or unimportant contentions will greatly assist the Board and parties in completing this proceeding within its tight schedule.

The July 27 Order The July 27 Order contains very specific guidance to the Board regarding the admissibility of contentions. It makes clear that this is not an operating license-type proceeding, in which compliance with all Commission regulations may be explored. Rather, this is a "special proceeding" designed to focus on narrow issues relating materially and site-specifi-cally to the population surrounding Indian Point.

Hence, when the Commission inquires in Question 3 as to the " current status and degree of conformance with NRC/ FEMA guidelines" it is clearly interested only in those guidelines which bear directly on the population density issue.

It is not an invitation to litigate every criterion contained in 10 CFR Part 50 or NUREG-0654.

Most of the contentions contained in the January 7 Order fail to satisfy the Commission's guidelines. The July 27 l

I Order sets forth the following specific additional tests for ad-missibility, within and beyond the requirements of 10 CFR Part 2:

(1) Contentions must include a statement of bases, " stated with reasonable specificity."

(2) The Board should screen out issues which would not con-tribute materially to the resolution of the Commission questions in light of the stated purpose of the proceeding, i.e., the extent to which nearby population affects the risk posed by Indian Point as com-pared to the spectrum of risks posed by other nuclear power plants.

(3) Challenges to Commission regulations are not permitted under Question 3*, and are per-mitted to a very limited extent under Question 4, provided that the parties "first provide a sound basis for this further exploration."** This requires that for each additional emer-gency measure proposed, the Minor adjustments to the size of the plume exposure pathway emergency planning zone (" plume EPZ") can be considered.

Such consideration, however, is consistent with the Commis-sion's regulations, which allow the " exact size and con-figuration" of an EPZ of "about 10 miles" to be determined according to specified local conditions. (See 10 CFR S50.47(c)(2).)

• • Contentions proposing additional measures under Question 4 presumably challenge the Commission's regulations since, if such measures were necessary to meet existing regulations, they would have been designated under Question 3.

parties must first d'emonstrate (a) that a particular risk '

exists.'at In'dian Point in com-parison'with the spectrum of risks posed by other plants; and (b) that the' proposed pro-cedure is a " prudent risk-reduction

[meaA urc] in light of.the risk."

Henco, contentions whi,ch fail to

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propose specific procedures, fail to identify a particular risk, or

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fail to identify the r.isk-reduction x s ig n i f'ican ce , must all,be stricken.

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While we believe that the Board has correctly applied 10 CFR Part 2 and the additional requirements'for this proceeding in eliminating Contentions 3.2, 4.3, 4.5, and 4.6, we submit that it has not fully applied the Commission's directives in considering most of the remaining contentions.*

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• The board al'so appears not to have considered the Commis- .

sion's suggestion in its September 17, 1982 Order (CLI-82-25) that the Board eliminate contentions concerning matters addressed during the so-called "120-day' clock's" operation, a suggestion the Board expressly adopted in its October 1, 1982 Memorandum and Order (Restating contentions.and establishing procedures based on Commission guidance)(the " October 1 Order"). See especially October 1 Order at 28-29, which states:

Why would the Commission admonish us not to waste time taking evidence about a

" rapidly changing situation" yet, at the same instant, require that we spend time (footnote continued on the following page) v

- We address the remaining contentions seriatim.

(footnote continued from the preceding page) reformulating contentions about the same

" rapidly changing situation"? The time that the Board and the parties would spend now on contentions relating to emergency planning could very well be a waste. We note that some of the con-tentions directly address some of the

'- deficiencies found by FEMA in its July 30, 1982, interim report on the Indian Point emergency plan. It is certainly reasonable to expect that the relevancy of some of those contentions might change by December. Although not all of the contentions under Commission Ouestions 3 and 4 will necessarily be affected, in the interests of avoiding a waste of time and a disjointed record, we have decided that the most reasonable course of action is to defer reconsideration of all of them until the 120-day clock has run.

The January 7 Order, however, reflects no consideration of the developments which occurred during the 120-day corrective period. It is clear, however, that great progress was made during that period, and that FEMA cites only two areas - bus transportation and Rockland County's relationship with the State - which require continued review. The intervenors have consistently refused to acknowledge the significant improvements made in emergency planning, despite the fact that such improvements are undeniable.

Thus, Contentions 3.1 (implicating every Commission planning I standard); 3.4 (regarding licensee notification of authori-ties); and 3.6 (regarding consideration of accident scenarios and meteorological conditions) are all contentions which are no longer (and may never have been) material, and would therefore "make only a minor contribution [if any) to the i Commission's goal, incommensurate with the time and resources required to address them." (July 27 Order at 13.) For this reason, as well as the reasons set forth below, those con-tention3 y 1ould be stricken.

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Power Authority's Response i

COMMISSION OUESTION 3 l

What is the current status and degree of conformance with NRC/ FEMA guidelines of state and local emergency planning within a 10-mile radius of the site and, of the extent that it is relevant to risks posed by the two plants, beyond a 10-mile radius? In this context, an effort should be made to establish what the minimum number of hours warning for an effective evacuation of a 10-mile quadrant at Indian Point would be. The FEMA position should be taken as a rebuttable presumption for this estimate.

Contention 3.1 Emergency planning for Indian Point Units 2 and 3 is inadequate in that the present plans do not meet any of the sixteen mandatory standards of 10 C.F.R. 50.47(b), nor do they meet the standards of Appendix E to 10 C.F.R. Part 50.

Power Authority Respo_nse The Power Authority objects to Contention 3.1 on the ground that it is not only too broad to satisfy the ordinary specificity requirements for contentions and bases

• under 10

• In fact, a number of the cited bases for Contention 3.1 do not allege that NRC/ FEMA planning standards are not met.

WESPAC Contentions 1, 2 and 3 simply list what WESPAC believes to be deficiencies in emergency planning without attempting to show that these alleged deficiencies are contrary to specific NRC/ FEMA guidelines. Similarly, the NYPIRG Submis-sion in Support of Contentions on Questions 3 & 4 dated December 28, 1982 ("NYPIRG Submission") does not list spe-cific failures to meet NRC/ FEMA guidelines but instead lists additional information which NYPIRG believes is needed be-fore it can conclude that any of these guidelines are met.

(NYPIRG Submission at 2.) No attempt was made to show that this additional information is required by the Commission or FEMA.

1 CFR S2.714, but it also ignores the Commission's directive herein that " additional requirements be applied to admission of contentions to assure a focused proceeding." (July 27 Order at 12; see also discussion of this contention at p. 3, n. (*)

above.) Plainly, this overbroad allegation will have precisely the opposite effect, allowing the emergency planning aspects of the proceeding to remain unfocused.

Contention 3.3 '

l The present estimates of evacuation times, based on NUREG-0654 and studies by CONSAD Research Corporation and by Parsons, Brinkerhoff, Quade & Douglas, Inc., are un-reliable. They are based on unproven assumptions, utilize-unverified methodologies, and do not reflect the actual emer-gency plans.

Power Authority Response Contention 3.3 fails to meet the requirements of the July 27 Order since it does "not contribute materially to the resolution of the Commission questions." (July 27 Order at 12.) In particular, it fails to rebut the presumption established by the FEMA (CONSAD) estimates (January 8, 1981 Memorandum and Order at 10), and fails to provide any estimate i

of its own of the " minimum number of hours warning for an effective evacuation of a 10-mile quadrant" (id.).

Contention 3.4 The Licensees cannot be depended upon to notify the proper authorities of an emergency promptly and accurately enough to assure effective response.

l Power Authority Response The Power Authority objects to this contention 4

on the ground that it lacks adequate bases. The bases cited therefor in the January 7 Order relate exclusively to alleged historical experience (not " current status," as required by Commission Question 3), generic issues, and notification of the public (not notification of " authorities," as stated in the contention itself). Therefore, it fails to meet the basis requirements emphasized in the July 27 Order (at 12) and the requirement that contentions focus upon "the stated purpose of the proceeding," namely the site-specific risks allegedly associated with the population near Indian Point.

Further, Contention 3.4 contains the very defects which correctly led the Board to eliminate Contention 3.2.

It does not identify any specific lack of conformance with NRC/ FEMA emergency planning guidelines and therefore does not seem likely to be important to answering Commission Question 3.

In addition, as the Board commented in striking Contention 3.2, the contention shows no clear nexus to the central issue in i this proceeding, namely the population density near Indian j Point.

Accordingly, the contention, like Contention 3.2, should be stricken.

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Contention 3.6 The emergency plans and proposed protective actions

, do not adequately take into account the full range of accident l scenarios and meteorological conditions for Indian Point Units  ;

2 and 3. l Power Authority Response l The Power Authority objects to this contention on the ground that it appears to be an impermissible challenge to the Commission's regulations. It does not relate specifi-cally to any Commission or FEMA guideline and, indeed, the failure to so limit its scope implies that existing regulations are inadequate. Since challenges to the regulations are not permitted under Question 3 (July 27 Order at 15), the contention should be eliminated.*

Contention 3.7 The problems of evacuating children from threatened areas have not been adequately addressed in the present emergency plans.

Power Authority Response We have no response to Contention 3.7 beyond the Power Authority's prior objections.

Contention 3.9 The road system in the vicinity of the Indian Point plant is inadequate for timely evacuation.

The Power Authority further notes that this defect could not be cured by transferring the contention to Question 4. It proposes no specific, feasible additional off-site emergency measures, and is unsupported by any " sound basis" demonstrat-ing sfte-specific risk reduction significance.

Power Authority Response since this contention, by its very nature, implies that additional off-site emergency planning measures should be taken, it should fall, if anywhere, within Question 4.* It fails, however, to specify any such additional measures. More-over, the contention is not likely to assist the review of warning time estimates, since the bases are palpably insuffi-cient, and the relationship between the contention and such estimates is far from clear. For these reasons, and for the reasons stated in the Power Authority's prior objections, this contention should be stricken.

Contention 3.10 The emergency plan fails to conform to NUREG-0654 in that, contrary to Evaluation Criterion II.J.10.d proper means for protecting persons whose mobility may be impaired have not been developed. Specifically, adequate provisions have not been made for groups named in the bases submitted for the following contentions:

l WESPAC 6 l Parents I, basis (22) and II basis (7)

UCS/NYPIRG I(B)(2), basis (6) and I(A) basis (7).

Power Authority Response l

The Power Authority does not object to Contention 3.10.

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• This issue is, in fact, addressed in Contention 4.2(d).

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COMMISSION OUESTION 4 What improvements in the level of emergency planning can be expected in the near future, and on what time schedule, and are there other specific offsite emergency procedures that are feasicle and should be taken to protect the public?

Contention 4.1 The plume exposure pathway EPZ should be expanded from its present 10-mile radius in order to meet local emergency response needs and capabilities.

Power Authority Response We recognize that the substance of the contention is among the issues in which the Commission has expressed interest. (See July 27 Order at 15.) With the addition of detailed and adequate bases, we believe that the contention would not be objectionable.* The bases cited in the January 7 Order, however, are wholly inadequate in that they are con-clusory, vague, and generally contemplate a vast expansion of the plume EPZ.** As the Licensing Board held in Southern

• We note, however, the Commission's express directive that this issue be litigated under Question 3. (July 27 Order at 15.)

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• • The bases for UCS/NYPRIG Contention II(A), for example, refer to consequences in the "New York City metropolitan area," an area which is not only inadequately defined, but presumably includes areas far beyond the present boundary of the plume EPZ.

California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), 14 NRC 691, 698 (1981), contentions proposing an expansion of a 10-mile plume EPZ must be limited to " minor adjustments." Since the existing bases do not support the contention, Contention 4.1 should not be allowed to stand.

Contention 4.2 The following specific, feasible off-site procedures should be taken to protect the public:

a) Potassium iodide should be provided in an appropriate form for all residents in the EPZ.

b) Adequate sheltering capability should be provided for all residents in the EPZ.

c) License conditions should prohibit power opera-tion of Units 2 and 3 when the roadway network becomes degraded because of adverse weather conditions.

d) The roadway network should be upgraded to permit successful evacuation of all residents in the EPZ before the plume arrival time.

Power Authority Response The Power Authority objects to Contention 4.2 on the ground that no " sound basis" has been demonstrated, as required by the July 27 Order (at 16). The Commission obviously intended that a " sound basis" be shown for each additional off-site measure proposed in Question 4 contentions. The bases cited for Contention 4.2 fail to demonstrate that the distribution of potassium iodide, additional sheltering, special license

conditions,* or roadway improvements would have special risk-reduction significance at Indian Point in comparison with risks posed by other nuclear plants. (July 27 Order at 15-16.)

Such a demonstration is clearly the threshold test for admissi-bility of contentions under Question 4.

Contention 4.7 The emergency plans should be upgraded to provide more adequate methods for alerting and informing persons who are deaf, blind, too young to understand the instructions, or who do not speak English.

Power Authority Response The Power Authority objects to Contention 4.7 on the grounds that (1) it lies beyond the scope of Commission Question 4; (2) it would not, in any event, contribute materi-ally to the resolution of the Commission questions in light of the stated purpose ot the proceeding; and (3) there is no sound basis for the contention.

(1) The contention lies beyond the scope of Commis-sion Question 4.

Commission Question 4 acks whether there are "other specific off-site emergency procedures that are feasible and should be taken to protect the public." Since Contention 4.7 fails to identify any specific procedures at all, it is mani-festly beyond the scope of that Ouestion.

• We note in the Power Authority's prior objections that li-cense amendments are not an off-site procedure, and are therefore beyond the scope of Question 4.

I (2) The contention would not, in any event, contri-bu_te materially to the resolution of the Commission questions.

The Commission has directed the Board to screen out issues which do not address the extent to which the " nearby population affects the risk posed by the Indian Point as compared to the spectrum of risks posed by other nuclear power plants." (July 27 Order at 13.) Absent acequate bases cemon-strating that the deaf, blind, young, or non-English speaking populations near Indian Point differ materially in size or otherwise from those at other sites, the contention should be eliminated.*

• We particularly note that none of the intervenors provided any substantive response to Licensees' Interrogatory 27, which asked:

For each of the following groups: (1) families with no English-speaking member; (2) the deaf and hearing impaired; (3) members of the population with learning disabilities; (4)

" latch-key" children; (5) handicapped persons; (6) invalics; and (7) other special populations:

(a) define the group; (b) state the number of group members who reside in the EPZ; (c) state the grounds for your calculation as to the number of individuals in the group in the EPZ; l * *

• i (d) identify the percentage, and geographical con-centration of such persons within the plume EPZ; i

(e) state how said percentage compares numerically with all other nuclear power plant sites in the United States; l *

(footnote continued on the following page)

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J (3) There is no sound basis for the contention.

The absence of such a showing also contravenes the Commission's requirement of a " sound basis" that the proposed additional measures would reduce the comparative risk posed by Indian Point. Since Contention 4.7 fails to specify the " methods" that should be undertaken, it is impossible to determine whether they are " prudent risk-reduction measures."

1 (footnote continued from the preceding page)

The only intervenor to respond in any manner at all, UCS/

NYPIRG, answered simply that "[slince there is no reason to assume that the EPZ is free of these people, common sense would dictate that there must be at least some people from these groups there." This does not even come close to meeting the Commission's requirements herein.

Respectfully submitted, e -

CharlesMorgan',Jr.g Paul F. Colarulli Joseph J. Levin, Jr.

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

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

Dated: January 24, 1983 l

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i 1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

James P. Gleason, Chairman Frederick J. Shon Dr. Oscar H. Paris

)

In the Matter of ) Docket Nos.

)

CONSOLIDATED EDISON COMPANY OF NEW YORK, ) 50-247 SP INC. (Indian Point, Unit No. 2) ) 50-286 6P

)

POWER AUTHORITY OF THE STATE OF NEW YORK )

(Indian Point, Unit No. 3) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of POWER AUTHORITY'S RESPONSE TO REFORMULATED CONTENTIONS UNDER COMMISSION QUESTIONS 3 AND 4 in the above-captioned proceeding have been served on the following by deposit in the United States mail, tirst class, this 24th day of January, 1983.

Docketing and Service Branch Ellyn R. heiss, Esq.

Office of the Secretary William S. Jordan, III, Esq.

U. S. Nuclear Regulatory Harmon & Weiss Commission 1725 I Street, N.W., Suite 506 Washington, D.C. 20555 Washington, D.C. 20006 I

James P. Gleason, Esq., Chairman Joan Holt, Project Director Administrative Judge Indian Point Project Atomic Safety and Licensing New York Public Interest Board Research Group 513 Gilmoure Drive 9 Murray Street Silver Spring, Maryland 20901 New York, N.Y. 10 'J 07

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Dr. Oscar H. Paris Janice Moore, Esq.

Administrative Judge Counsel for NRC Staff Atomic Safety and Licensing Office of the Executive U.S. Nuclear Regulatory Legal Director Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 Mr. Frederick J. Shon Brent L. Brandenburg, Esq.

Administrative Judge Assistant General Counsel Atomic Safety and Licensing Consolidated Edison Co.

Board of New York, Inc.

U.S. Nuclear Regulatory 4 Irving Place Commission New York, N.Y. 10003 Washington, D.C. 20555 Jeffrey M. Blum, Esq. Charles J. Maikish, Esq.

.4ew York University Law Litigation Division School The Port Authority of 423 Vanderbilt Hall New York and New Jersey 40 Washington Square South One World Trade Center New York, N.Y. 10012 New York, N.Y. .10048 Ezra I. Bialik, Esq.

Marc L. Parris, Esq. Steve Leipsig, Esq.

Eric Thorsen, Esq. Enviromental Protection Bureau County Attorney New York State Attorney County of Rockland General's Office 11 New Hemstead Road Two World Trade Center New City, N.Y. 10956 New York, N.Y. 10047 Joan Miles Alfred B. Del Bello Indian Point Coordinator Westchester County Executive New York City Audubon Society Westchester County 71 West 23rd Street, Suite 1828 148 Martine Avenue New York, N.Y. 10010 White Plains, N.Y. 10601 Greater New York Council on Energy c/o Dean R. Corren, Director New York University 26 Stuyvesant Street New York, N.Y. 10003

Atomic Safety and Licensing Atomic Safety and Licensing Board Panel Appeal Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Andrew S. Roffe, Esq. Honorable Richard L. Brodsky New York State Assembly Member of the County Albany, N.Y. 12248 Legislature Westchester County County Office Building White Plains, N.Y. 10601 Renee Schwartz, Esq. Phyllis Rodriguez, Spokesperson Paul Chessin, Esq. Parents Concerned About Laurens R. Schwartz, Esq. Indian Point Margaret Oppel, Esq. P.O. Box 125 Botein, Hays, Sklar & Herzberg Croton-on-Hudson, N.Y. 10520 200 Park Avenue New York, N.Y. 10166 Stanley B. Klimberg Charles A. Scheiner, Co-General Counsel Chairperson New York State Energy Office Westchester People's Action 2 Rockefeller State Plaza Coalition, Inc.

Albany, New York 12223 P.O. Box 488 White Plains, N.Y. 10602 Honorable Ruth Messinger Alan Latman, Esq.

Member of the Council of the 44 Sunset Drive City of New York Croton-on-Hudson, N.Y. 10520 District No. 4 City Hall New York, New York 10007 Richard M. Hartzman, Esq. Zipporah S. Fleisher Lorna Salzman West Branch Conservation Friends of the Earth, Inc. Association 208 West 13th Street 443 Buena Vista Road New York, N.Y. 10011 New City, N.Y. 10956 Mayor George V. Begany Judith Kessler, Coordinator Village of Buchanan Rockland Citizens for Safe 236 Tate Avenue Energy Buchanan, N.Y. 10511 300 New Hempstead Road New City, N.Y. 10956 Ruthanne G. Miller, Esq. Mr. Donald Davidoff Atomic Safety and Licensing Director, Radiological Board Panel Emergency Preparedness U.S. Nuclear Regulatory Group Commission Empire State Plaza Washington, D.C. 20555 Tower Building, RM 1750 Albany, New York 12237 Steward M. Glass Amanda Potterfield, Esq.

Regional Counsel Johnson & George, Attys at Law Room 1349 528 Iowa Avenue Federal Emergency Management Iowa City, Iowa 52240 Agency 26 Federal Plaza New York, New York 10278 Melvin Goldberg Steven C. Sholly Staff Attorney Union of Concerned Scientists New York Public Interest 1346 Connecticut Ave., N.W.

Research Group Suite 1101 9 Murray Street Washington, D.C. 20036 New York, New York 10007 Spence W. Perry Office of General Counsel Federal Emergency Management Agency 500 C Street, Southwest Washington, D.C. 20472 David H. Pikus