ML20033C999
| ML20033C999 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 12/01/1981 |
| From: | Morgan C MORGAN ASSOCIATES, POWER AUTHORITY OF THE STATE OF NEW YORK (NEW YORK |
| To: | |
| References | |
| NUDOCS 8112040578 | |
| Download: ML20033C999 (33) | |
Text
No UNITED STATES OF AMERICA D0t.KETED NUCLEAR REGULATORY COMMISSION UV4RC ATOMIC SAFETY AND LICENSING BOARQ gg Before Administrative Judges:
Louis J. Carter, Chairman
. E c c SECRETARY JITaiG & S((Wyff '9, Mr. Frederick J.
Shon Dr. Oscar H.
Paris
[b.( h 9\\
-l es7 In the Matter of 9
CONSOLIDATED EDISON COMPANY OF NEW YORK, INC.
)
Docke t Nos.
/
s
'Q5q286)d#g 2{7 SP (Indian Point, Unit No. 2)
)
56-
)
POWER AUTHORITY OF THE STATE OF NEW YORK
)
(Indian Point, Unit No. 3)
)
)
)
POWER AUTHORITY'S SPECIAL PRE-HEARING CONFERENCE MEMORANDUM AND PROPOSED ORDER i
The Power Authority of the State of New York (Authority), licensee of Indian Point Unit 3, hereby submits this special pre-hearing conference memorandum pursuant to the Atomic Safety and Licensing Board's (Licensing Board's)
Order of November 9, 1981.
46 Fed. Reg. 56,264 (1981).
This memorandum addresses the issues of the necessity for a schedule which is consistent with the Nuclear Regulatory Commission's (Commission's) request that this proceeding be completed by September 18, 1982, text at 14, infra, the burden of going forward with the evidence, text at 17, i
infra, and the limiting of contentions to those issues enumerated by the Commission to ensure a focused proceeding, 3
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8112040578 811201 PDR ADOCK 05000247 0
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2-text at 25, infra.1 Presentation of the procedural back-ground of this hearing precedes discussion of the issues.
I.
PROCEDURAL BACKGROUND This proceeding was initiated by the September 17, 1979 e_tition filed by the Union of Concerned Scientists (UCS) urging:
(1) the decommissioning of Indian Point Unit 1; (2) the immediate suspension of commercial operation at Indian Point Units 2 and 3 ; and (3) the establishment of a Licensing Board to address these issues.
Union of Concerned Scientists' Petition for Decommissioning of Indian Point Unit 1 and Suspension of Operation of Units 2 and 3 (Sept.
17, 1979) (Pe tition).
Nowhere in the petition or in the accompanying af fidavit of Robert D.
Pollard does UCS allege that either of these plants fails to meet any of the Com-1.
The Authority believes that consolidation of contentions and parties may well expedite this proceeding.
See In re Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), 10 N.R.C.
141, 147 (1979); In re Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3). 9 N.R.C. 428, 435 (1979).
- However, the issue of consolidation is more appropriato1y raised following the Licensing Board's final orders on intervention and contentions.
Additionally, the Licensing Board, in its November 9, 1981 Order, requested that the parties aid in the identifi-cation and clarification of key issues in the proceeding.
46 Fed. Reg. 56,264 (1981).
The Authority submits that it is unable to contribute to this process before the Licensing Board rules upon the final contentions which the.ncervenors will address.
The Authority, therefore, reserves the right to respond to the Licensing Board's request for identifica-tion and clarification of key issues at a later date.
t mission regulations applicable to their design or operation, or that the Indian Point units are.less safe than other nuclear power plants.
4 The petition, based essentially upon claims relating taa the high population site and the Commission's backfitting practices,1 acknowledged that some of the safety issues raised by the petition are not unique to the Indian Point nuclear power plants.
Id, at 19-20.
Little in the petition related to these two units in particular.
While claiming
~that there were design differences between Unit 2 and Unit 3 which were of some safety significance, id. at 13-17, the petition also contended that there were safety deficiencies common to both units, particularly the unresolved generic safety issues set forth in NUREG-0410, "NRC Program for the Resolution of Generic Issues Related to Nuclear Power Plants."
Id. a t 19-2 2.
On September 28, 1979, the Authority and the Consolidated Edison Company of New York, Inc. (Con Edison),
licensee of Indian Point Unit 2, responded to the petition, 1.
Specifically, the petition claimed that relatively high population levels in the vicinity of Indian Point may make necessary " specific added safety features and of f-site emergency measures," Petition at 25, and that the Commission's backfitting practices should be changed to require a demonstration "that specific design features in each plant provide a degree of protection equivalent to that j
which would be provided by.
. new pressurized water reactors."
Id. a t 3-4.
i I
l4
- pointing out that the issues raised by the petition were generic in nature because the petition sought a change in Commission regulations to condition continued operation of f
the plants upon the adoption of certain standards which petitioner believed to be desirable.
Letter from Brent L.
Brandenburg to Joseph Hendrie at 2 (Sept. 28, 1979) (Con i
Edison response); Response of Power Authority of State of New York at 4-5 (Sept. 28, 1979).
On November 15, 1979, the Commission referred the UCS petition to the Commission Staff for treatment pursuant to 10 C.F.R. S 2.206 (1981).
44 Fed. Reg. 67,251 (1979).
Following a briefing to the Commission, the Director of the Commission's Office of Nuclear Reactor Regulation on February 11, 1980, issued a " Director's Decision under 10 CFR 2.206," which granted the UCS petition in part and denied it in part.
In re Consolidated Edison Co. (Indian Point, Units 1, 2, and 3), 11 N.R.C. 351 (1980) (Director's Decision).1 The Director refused to order the shutdown of Units 2 and 3, or to recommend that the Commission institute a hearing on the issues raised in the petition.
Id. at 370.
1.
With regard to Indian Point Unit 1, the Director issued an order to show cause to Con Edison requiring the licensee to demonstrate why the provisional operating license for Unit 1 should not be revoked, and why it should not submit a plan for decommissioning the f acility.
Director's Decision at 355.
o The Director, after considering the efforts of the Com-mission Staff and licensees to review the operation of the units in light of the Three Mile Island (TMI) incident,1 addressed each of the broadly stated allegations against Units 2 and 3 contained in the petition.
The Director's De-cision stated that the Commission's task force had identi-fied a number of " extraordinary interim measures that will significantly increase the level of safety at the Indian Point Station" and noted that both licensees had indicated their agreement to adopt these interim measures.
I d,.
at 357.
The Decision also identified a number of significant compensatory features in the design of the units which further increased' their margin of safety, and concluded that, "considering these existing engineered safety features, the eme,gency plans already in effect, and the extraordinary interim measures identified in the Confirmatory orders Indian Point Station Units 2 and 3 are suitable for continued operation."
Id. a t 3 58-59.
The Director's Decision considered each of the grounds UCS claimed as support for shutting down the plants and 1.
The post-TMI e f forts included an in-depth review of emergency preparedness plans by licensees with the assis-tance of Commission Staf f, local and state officials and members of the public, and the appointment of a Commission task force to study possible additional measures which might be required at the Indian Point site as well as at the Zion Station Units 1 and 2, which are operated by Commonwealth Edison.
Id. at 355-57.
4 6-found that none offered any basis for ending operations at either plant.
The Decision concluded:
The petition alleges that Indian Point Units 2 and 3 are " relics of the past" and the "NRC has marched resolutely ' eyes front,' not applying the lessons learned about safety to Indian Point."
This not so [ sic].
Both plants have been significantly modified to meet NRC safety and security requirements.
Because of the interim measures imposed by the Confirmatory Orders and in light of the discussion in this decision of the safety issues raised by the UCS, I have determined not to order the shutdown of Indian Point Units 2 and 3.
For these same reasons I have not recommended to the Commission that it institute a hearing on all of the matters touched upon in the UCS petition.
Id. at 369-70.
On February 15, 1980, the Commission issued a notice requesting comments from members of the public on the merits of the Director's Decision.1 45 Fed. Reg. 11,969, 11,970 1.
The notice additionally requested unat members of the public submit their views regarding the course of action further Commission consideration should take.
45 Fed. Reg.
11,969, 11,970 (1980).
In its response, Con Edison urged the Commission to decline review of the Director's Decision.
Memorandum of Con Edison in Response to Solicitation of Comment on Director's Decision Under 10 C.F.R. 2.206 a t 9-14 (Mar. 14, 1980) (Memorandum of Con Edison).
It noted that the test to determine whether a decision under 10 C.F.R. S 2.206 should be subject to review by the full Commission was whether the Director's Decision amounted to an abuse of discretion, and that no such finding could reasonably be made.
Id.
The
a.
(1980).
In its May 30, 1980 order, issued after the comment period, the Commission adopted a "four-pronged approach" to the petition:
(1)
An adjudication before a Licensing Board on " safety issues related specifically to Indian Point Units 2 and 3," with the decision on the merits to be made by the full Commission; (2)
The institution of an informal proceeding to decide, "on an expedited basis, the issues which the adjudicatore proceeding [would] address;" (3)
After the conclusion of the informal proceeding the initiation of a generic proceeding to consider the question of the operation of reactors in areas of high population density; and (4)
The establishment of the Task Force on Interim Operations to consider the question of continued i
Director's Decision was a' thorough review of the adequacy of the Indian Point Units 2 and 3 in light of on-going Commission programs, and carefully reviewed and rejected each of the UCS' allegations.
Id. at 10.
In addition, the claims in the UCS petition were, for the most part, the same claims that had been thoroughly examined by the Commission 4
in 1976 hearings before the Join + Committee on Atomic Energy.
Id. at 10-12; see Inve, igation of Charges Relating to Nuclear Reactor Safety:
Hear.ngs Be fore the Joint Comm.
on Atomic Energy, 94th Cong., 2d Sess. (1976).
Both Con Edison and the Authority noted in their responses that the estimates of " social risk" of continued operation of the Indian Point units presented in the Director's Decision and in his February 5,1980 presentation to the Commission were grossly inflated because they were
~
based upon the operation of an " average" nuclear plant.
Memorandum of Con Edison at 16-17; Comments of the Power Authority of the State of New York at 12-13 (filed Mar. 10, i
1980).
As the Director's Decision acknowledged, both plants include safety features not found in the average plant.
Director's Decision at 357-58.
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operation of Indian Point Units 2 and 3 pending the completion of the adjudicatory proceeding.
Order at 2 (May 30, 1980).
On June 12, 1980, the task force issued an information report to the Commission.
Task ?crce Report on Interim Operation of Indian Point (NUREG-0715) (1980).
The task force concluded that:
(1) the overall societal risk of an Indian Point reactor was about the same as a typical reactor on a typical site, id. at 40; (2) the risk to individuals of an Indian ' Point ' reactor was 30 to 50 times less than the risk to individuals posed by a typical reactor, id. at 34; and (3) the population density surrounding Indian Point was not materially dissimilar from numerous other reactor sites.
Id. at 3.
By motion dated July 25, 1980, the licensees requested that the Commission reconsider that portion of its May 30, 1980 order which directed that adjudicatory hearings be convened.
Licensees noted that the only possible basis for singling out the Indian Point reactors for adjudicatory
- hearings, i.e.,
that they pose a risk signficantly different f rom other reactors, was rejected by the task force report, l
and noted that the conclusions of this report were generally consistent with an exhaustive analysis prepared by Westinghouse Corporation and submitted to the Commission.
Licensees' Motion for Reconsideration of that Portion of the 1
Commission's Order of May 30, 1980 Which Directs Adjudicatory Hearing at 2-5 (filed July 25, 1980).1 As explained in this motion, attempting to resolve generic issues through an adjudicatory hearing dealing only with the Indian Point units was inherently discriminatory and counterproductive.
On January 8, 1981, the Commission issued an order denying the licensees' motion for reconsideration and per-mitting continued operation of the plants while the proceeding is in progress.
In re Consolidated Edison Co.
(Indian Point, Units 2 and 3), 13 N.R.C. 1 (1981).
The order directed that discretionary hearings be conducted in the vicin:ty of Indian Point by a Licensing Board, and that the Licensing Board utilize "the full procedural format of a trial-type adjudication, including discovery and cross-examination."
Id. at 5 (footnote omitted).
The Commission directed the Licensing Board to consider seven questions which were stated as follows:
1.
What risk may be posed by serious accidents at Indian Point 2 and 3, including accidents not con-sidered in the plants' design basis, pending and after any improvements described in (2) and (4) below?
2.
What improvements in the level of safety will result from measures required or referenced in the 1.
See Westinghouse / Offshore Power System, Report on the Evaluation of Residual Risk for the Indian Point Power Plant (filed May 23, 1980).
L
Director's Order to the licensee, dated February 11, 19807 (A contention by a party that one or more specific safety measures, in addition to
/
those identified or referenced by the Director, should be required as a condition of operation of the facility or facilities, would be within the scopc of this inquiry.)
3.
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.
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 of fsite emergency procedures that are feasible and should be taken to protect the public?
5.
Based on the foregoing, how do the risks posed by Indian Point Units 2 and 3 compare with the range of risks posed by other nuclear power plants licensed to operate by t.he Commission?
(The Board should limit its inquiry to generic examination of the range of risks and not go into any site-specific examination other than for Indian Point itself, except to the extent raised by the Task Force.)
6.
What would be the energy, environmental, economic or other consequences of a shutdown of Indian Point Unit 2 and/or Unit 37 7.
Does the Governor of the State of New York wish to express an official position with regard to the long-term operation of the units?
Id. at 7-8.
The hearings directed by the January 8 order, though styled as adjudicatory, were to be an unusual hybrid,
involving as they do, features of an investigation.
The Commission referred to "the investigative nature of the pro-ceeding" as the basis for a number of deviations from the 3
Commission's standard rules of procedure.
Id. a t 5 n. 4.
The Commission also noted that the hearing would not be an "oa the record" proceeding.
Id.
on September _18, 1 "21, the Commission cppointed the Licensing Board and made significant changes to clarify the scope of the proceeding.
Among these changes were:
1.
Question 1 in the list of seven questions in the January 8 order was amended to read as follows:
What risk may be posed by serious acci-j dents at Indian Point 2 and 3, including l
accidents not considered in the plants' design basis, pending and after any improvements described in (2) and-(4) i below?
Although not requiring the preparation of an Environmental Impact Statement, the Commission intends that the i
review with respect to this question be conducted consistent with the guidance provided the staff in the Statement of Interim Policy on " Nuclear Power Plant Accident Considerations under the National Environmental Policy Act of 1969;" 44 FR j
40101 (June 13, 1980).
Memorandum and Order at 3 (filed Sept. 18, 1981).
l l
2.
Question 2 was amended to read as follows:
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l What improvements in the level of safety will result from measures required or referenced in the Director's Order to the licensee, dated February 11, 1980?
(A l
contention by a party that one or more specific safety measures, in addition to those identified or referenced by the Director, should be required as a con-i i
I
dition of operation would be within the scope of this inquiry ii, according to the Licensing Board, admission of the con-tention seems likely to be important to resolving whether (a) there exists a significant risk to public health and safety', notwithstanding the Director's measures, and (b) the additional proposed measures would result in a significant reduction in that risk.)
Id. at 4.
2.
Contentions based on allegations contained in the UCS petition that one or both plants do not meet certain Commission regulations will be accepted if they meet the requirements of Part 2 of the Commission regulations although they nay not be within the seven questions which the Commission has addressed to the Licensing Board, id. at 1-2; and 4.
The Commission "would like to receive" the Licensing Board's recommendation no later than September 18, 1982.
Id. at 5.
On November 25, 1981, the licensees filed a motion for a stay of the Commission's January 8 and September 18, 1981 orders, or for dismissal of this proceeding, or, in the al-ternative, for certification to the Commission.1 The grounds for this motion are:
1.
See Licensees' Motion for a Stay of Commission's l
Orders of January 8, 1981 and September 18, 19 81 or for Dismissal of this Proceeding or, in the Alternative, for Certification to the Commission and Memorandum in Support Thereof (filed Nov. 25, 1981).
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(1) commencement of an adjudicatory pro-ceeding prior to completion of ongoing proceedings to establish generic standards constitutes a denial to licensees of pro-cedural due process; (2) principles of res judicata and col-lateral estoppel bar reccnsideration of the physical and population character-istics of the Indian Point site; (3) the Commission's failure to adhere to its existing Siting Criteria constitutes action which is arbitrary, capricious, an abuse of discretion, and a deprivation of property without due process of law:
(a) the Siting Criteria are violated by the Commission's January Order; _ (b) the appli-cation of existing Siting Criteria to existing plants has been ratified by Congress; and (c) the retroactive appli-cation of new siting standards would violate the due process clause; (4) the Constitution requires that the Commission estaolish compelling reasons to justify a shutdown of Indian Point; (5) an adverse ruling from a readjudi-cation of the Indian Point site would result in an impairment of contract and a taking of property without just compen-sation guaranteed by the fifth amendment; and (6) the Commission lacks jurisdiction to conduct the hybrid ins.-tigatory-adjudicatory proceeding which constitutes an unconsti-tutional singling out of the Indian Point licensees.
Licensees' Memorandum of Law in Support of Mo*. ion for a Stay of Commission's Orders of January 8, 10 81 and September 18, 1981 or for Dismissal of this Proceeding or, in the Alternative, for Certification to the Commission at 2-3
(filed Nov. 25, 1981).
This motion is currently pending before this Licensing Board.
II.
THIS BOARD SHOULD IMMEDIATELY ESTABLISH A SCHEDULE FOR THE FIRST PHASE OF THIS PROCEEDING This proceeding is unprecedented because it is a unique hybrid action with investigatory and adjudicatory characteristics.
The seven questions posed to the Licensing Board by the January 8 and September 18, 1981 orders are broadly stated,.
and consideration of these questions will require an exami-nation of both Indian Point plants, as well as a comparison of these plants with other already licensed plants.
Unlike a typical licensing proceeding in which the issues to be ad-dressed by a Licensing Board are f ashioned and limited by the Commission's licensing regulations and thus understood and generally agreed upon by the applicant, staff and other participants, the issues in this proceeding are to a much greater extent amorphous and dif ficult to define.
It is, therefore, essential that this Licensing Board focus the attention of the participants on matters "which seem likely to be important to resolving the Commis? ion's l
questions."
Memorandum and Order at
?.
( filed Sept. 18, 1981).
Such a focus will ensure the development of a record to suppert the Licensing Board's findings.
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The Commission expects to receive tra Licensing Board's recommendations in less than ten months.
Although the relatively short time frame available to the Licensing Board may be seen as an additional burden, it could be an advantage; this established target date will encourage the parties to pursue matters expeditiously and to devote their efforts to issues which are of primary importance.1 The Authority proposes the following schedule for this proceeding through May 24, 1981.
POWER AUTHORITY'S PROPOSED SCHEDULE December 2 Special > rehearing Conference and Filing of Contentions Due December 11 Response To Licensees' 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 Certific.ation To the Commission December 30 Mori.ons Objecting to Contentions December 31 Discovery Ends on Intervention Petitions January 6 Evidentiary Hearing on Intervention until completed Pe titions January 11 Responses to Motions Objecting to Contentions January 15 Memoranda on Evidentiary Hearing on Intervention Petitions 1.
The Authority encourages the use of special mechan-isms to expedite this proceeding, as a speedy resolution of the issues is in the public interest.
January 29 Order on Intervention Petitions and Contentions Discovery Begins February 12 Objections to Order on Contentions and Intervention Petitions February 26 Responses to Objections to Order on Contentions and Intervention retitions March 5 Order on Motions Objecting to Contentions March 22 Discovery Ends Aoril 5 Motions for Summary Disposition April 26 Answers to Motions for Summary Disposition May 10 Reply to Answers to Motions for Summary Disposition May 17 Pre-hearing Conference May 24 Order on Motions for Summary Disposition III. INTERVENORS HAVE THE BURDEN Or GOING FORWARD WITH j
EVIDENCE TO SUPPORT A SHUTDOWN OR MODIFICATION OF THE INDIAN POINT UNITS Common sense and fairness, as well as analogous legal precedents, require that the Authority respond after the i
inte rve nors, followed by the Commission staff, have pre-filed their testimony.
This procedure has the added value of being orderly and j
efficient.
Nothing will assist the Licensing Board nore than having those who question plant safety present their case first with licensees having an opportunity to respond.
_ - ~ _ - -
^
. This schedule of presentation will best serve the Com-mission's stated " investigative purposes" while insuring that the Commission's goal of "a focused proceeding" is attained.
This same order of presentation should apply to the offering of evidence and witnesses at the hearing.
In its September 18, 1981 Order, the Commission stated that the Licensing Board "may.
. establish whatever order of presentation it deems best suited to the proceeding's investigative purposes [but that] [n]o party will have the
' burden of persuasion' as the term is normally used in adjudicatory proceedings."
Memorandum and Order at 2 (filed Sept. 18, 1981).
" Burden of going forward with the evidence" differs trom " burden of persuasion."
"One burden is that of producing evidence, satisfactory to the judge, of a particular fact in issue.
The second is the burden of persuading the trier of fact that the alleged fact is 1
true."
E.
Cleary, McCormick on Evidence S 336 (2d ed. 1972)
(footnote omitted) (hereinaf ter McCormick).
Aside from the burden of persuasion, the Licensing Board should not " depart from traditional and fair allocations of burdens of proof."
In re Toledo Edison Co. (Davis-Besse Nuclear Power Station, Units 1, 2 and 3), 5 N.R.C.
133, 253 (1977)
(antitrust implications of a licensing proceeding).
It should use well established procedures:
4 e
k
(1)
We began with a clean slate, presuming a lawful situation; (2) opposition parties were required to establish a prima facie case, whereupon; (3) the burden of proceeding with the evidence shifted to Applicants, then; 3
(4) we analyzed the whole record to determine whether the opposition parties carried their burden of proof wita a preponderance of the reliable, probative and substantial evidence Id. at 253-54 (emphasis added).
The parties petitioning for intervention and seeking a shutdown or modifications of the plants have had more then two years to prepare their cases.
The Authority at this point is in precisely the position it was in when the UCS petition was filed in September 1979--awaiting the particulars of claims that, despite the long licensing proceedings and continued detailed regulation by the Commission, these plants somehow pose an unacceptable risk to the public.
The Commission provided the Authority with support for its confidence in its plants when, in 1966, 1969, and 1977, after extensive hearings, the Commission found the Indian Point site safe.
See In re Consolidated Edison Co. (Indian Point, Unit 2), 3 A.E.C. 144, 151, aff'd, 3 A.E.C. 162 (1966); In re Consolidated Edison Co. (Indian Point, Unit 3), 4 A.E.C. 246, 262, aff'd, 4 A.E.C. 392 (1969); In re Consolidated Edison Co. (Indian Point, Units 1, 2, and 3),
6 N.R.C.
547, 624 (1977), 10 N.R.C. 410 (1979), review
19 -
denied, 2 CCH N.R.R. 1 30,536 (1980).
More recently, the interim task force concluded that the "overall (i.e.,
societal) risk of the Indian Peint reactor is about the same as a typical reactor en a typical site."
Task Force Report on Interim Operation of Indian Point "0 (NUREG-0715) (1980).
With respect to the level of safety to individuals, the task force concluded that the Indian paint units posed 30 to 50 times less risk to persons and property than the postulated typical (Surry) reactor.
Id[. a t 3 4.
It would be impossible for the Staff and the Authority to prepare responses to alleged safety deficiencies without first being provided a sufficient statement of these contentions from their sponsors as well as a chance to test the assumptions underlying these contentions through cross-examination.
Adopting an alternative order for the presen-l tation of evidence will surely lead to an unfocused, time-consuming proceeding.
" Common sense" requires that those seeking a shutdown or mo'difications of the plants go forwaro with the evidence because they, not the Authority, seek "a particular decla-ration" changing the existing situation.
Pacific Gas &
Electric Co.
v.
SEC, 127 F.2d 378, 382 (9th Cir. 1942)
(court relies upon " common-sense" rule when the statute is silent).
Such a common-sense rule underlies both the f
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Administrative Procedure Act (APA) and Commission regulations, which are instructive, although neither is binding in this proceeding.
Memorandum and Order at 1-2 (filed Sept. 18, 1981); see 5 U.S.C. S 556(d) ("Except as otherwise provided by statute, the proponent of'a rule or order has the burden of proof."); 10 C. F. R. S 2.732 (1981)
.("the proponent of an order has the burden of proof").
" Ordinarily, it is the proponent of a rule or order who has the burden of proof in administrative proceedings."
i Industrial Union Department v.
American Pe troleum Institute, 448 U.S. 607, 653 (1980).
Although the term " burden of proof" generally has two components, the burden of going forward with evidence and the burden of persuasion, see McCormick S 336, when "'the proponent of a rule or order has the burden of proof the party initiating the proceed-ing has the general burden of coming forward with a prima 1
facie case.'"
Environmental Defense Fund, Inc. v.
- EPA, 548 F.2d 998, 1014 (D.C.Cir. 1976), cert. denied, 431 U.S.
925 (1977), quoting S. Rep. No. 7 5 2, 7 9th Cong., 1st Sess. 22 (1945) (Senate Report on APA); accord, Environmental De fense Fund v.
EPA, 548 F.2d at 1013 ("As to the APA, our opinion holds that the ' burden of proof' it casts upon the
' proponent' is the burden of coming forward with proof, and not the ultimate burden of persuasion."); id. at 1015, quoting H.R. Rep. No. 1980, 79th Cong., 2d Sess. 34 (1946)
(House Jteport on APA) ("'this section means that every proponent of a rule or order or the denial thereof has the burden of coming forward with sufficient evidence t he re fo r' " ) ; In re New York Shipbuilding Corp.,1 A.E.C. 707, 708 (1961) (in case involving order to show cause why byproduct material license should not be revoked, APA applied and " burden of proof here rested upon the staff," as initiator of proceeding).1 The proponents of the shutdown of the Indian Point units should carry the burden of going forward with the evidence because it is they who, allegedly, know why the l.
Under the Atomic Energy Act, there is an exception to this usual allocation of burdens of proof; throughout the process culminating in the grant of an operating license,
'the utility must come forward with suf ficient information to establish (among other things) 'that the facility authorized (by the construction permit] has been constructed in ccnformity with the regulations of the Commission.'"
In re Consumers Power Co. (Midland Plant, Units 1 and 2), 2 N.R.C.
11, 17 (1975), quo ting 4 2 U. S. C.
S 2235, aff'd on reconsid., 3 N.R.C.
101 (1976); see Power Reactor Development Co. v.
International Union of Electrical, Radio and Machine Worke rs, 367 U.S.
396, 411 (1961) ("1ssuance of a construction permit does not make automatic the later issuance of a license to operate"); In re Consumers Power Co. (Midland Plant Units 1 and 2),
2 N.R.C.
a t 17 (in the construction permit and the operating licensing phases, the utility " carries the ultimate burden of proving compliance with all applicable Commission regulations," and Appeal Board could not " perceive why the legislature would have wanted that burden shif ted elsewhere if a question of compliance [ arose] in the intervening construction phase").
This exception does not apply to this proceeding because the licensees have met all the requirements for, and have been granted, operating licenses for Indian Point Units 2 and 3.
~.
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plants should cease to provide power and "[t]he ordinary rule based on considerations of f airness, does not place the burden upon a litigant of establishing facts peculiarly within the knowledge of his adversary."
United States v.
New York, New Have.t A Hartford R.R.,
355 U.S. 253, 256 n.5 (1957); accord, Campbell v.
United States, 365 U.S. 85, 96 (1961); Miller v.
United States, 413 F.2d 1097, 1099-1100 (D.C.Cir. 1969) ("We are aware of no decision that such a rule is inconsistent with due process of law.").
Cf. Comez v.
Toledo, 446 U.S.
635, 641 (1980) (when one party "cannot reasonably be expected to know" certain facts, to impose the burden of pleading the relevant cause of action on that party would "be contrary to established practice").
The Authority, which knows that Indian Point Unit 3 is a safe supplier of electricity to New York State consumers and that it is in compliance with all applicable regulations, has been charged with the unsafe operation of the plant and thus
.s " entitled to know what it is charged with and to be presented with the evidence against it before it is called upon to respond with evidence in its own behalf."
In re Consumers Power Co. (Midland Plant, Units 1 and 2), 3 N.R.C.
101, 110 (1976).
The filing of contentions will not provide the Authority with the knowledge to which it is entitled; the
" contention requirement and procedure is for the purpose of
framing the issues which will be the subject of subsequent discovery and proof in an evidentiary hearing."
In re Commonwealth Edison Co; IByron Nuclear Power Station, Units 1 and 2), 12 N.R.C. 683, 687 (1980) (emphasis added).
Although Commission regulations require that the " bases for each contention [be] set forth with reasonable specificity,"
10 C.F.R.
S 2.714(b), such information is suf ficient for purposes of contentions if it lets other parties "know at least generally what they will have to defend against or oppose."1 In re Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), 8 A.E.C.
13, 20 (1974)
(emphasis added); see In re Commonwealth Edison Co.,
12 N.R.C.
at 689 (emphasis added)
(" Properly framed contentions will reasonably inform the other parties what issues they will be required to defend against or 1.
This burden of going forward must be distinguished from the burden on intervenors seeking to have the specific contentions considered in the proceeding.
In re Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), 7 N.R.C.
477, 489 n.8 (1978).
The so-called " threshold test" for consideration of intervenors' contentions does not place " heavy substantive burdens
. on intervenors."
Aeschliman v. NRC, 547 F.2d 622, 627 & n.11 (D.C. Cir.
1976), rev'd on other grounds, 435 U.S. 519, 554 (1978).
The Supreme Court quoted with approval the Commission's characterization of the threshold test:
"We do not equate this burden with the civil litigation concept of a prima f acie case, an unduly heavy burden in this set-ting.
But the showing should be sufficient to require reasonable minds to inquire f urther."
Id.
I
oppose to develop a complete record in an evidentiary hearing.').
Content ons simply define the "' concrete issues which i
are appropriate for adjudication in the proceeding.'" In re Gulf States Utilities Co. (River Bend Station, Units i and 2),-6 N.R.C. 760, 769 (1977) (emphasis added), quoting In re Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), 6 A.E.C. 188, 191 (1973), aff'd sub nom. BPI v.
AEC, 502 F.2d 424 (D.C. Cir. 1974).
Accordingly, the reasons which the advocates of a shutdown claim support their position will remain a mystery to the Authority until the intervenors go forward with " sufficient evidence to establish a prima facie case."
In re Consumers Power Co. (Midland Plant, Units 1 and 2), 6 A.E.C. 331, 345 (1973); accord, In re Commonwealth Edison Co. (Zion Station, Units 1 and 2), 8 A.E.C. 381, 388 (1974); In re Maine Yankee Atomic Power Co. (Maine Yankee Atomic Power Station),
6 A.E.C. 1003, 1018 (1973).
See also In re Consumers Power Co. (Midland Plant, Units 1 and 2), 8 A.E.C. 112, 116 (1974).
Only after the intervenors attempt to establish a prima f acie case might the issues be suf ficiently focused such that the Authority may respond to them.
Because "[n]o party will have the ' burden of persuasion'" in this proceeding, Memorandum and Order at 2
( filed Sept. 18, 1981), the intervenors questioning the
25 -
~
safety of the plants should have the burden of going f o rwa rd, in adherence to the " obvious proposition that each party to the proceeding ha[s] the responsibility, if it [is]
to prevail, of convincing the Board of the merit of its r
contentions."
In ra Consumers Power Co.,
6 A.E.C. at 338.
IV.
THE BOARD SHOULD LIMIT THE SCOPE OF THE CONTENTIONS TO MATTERS DELINEATED IN THE COMMISSION'S JANUARY 8 AND SEPTEMBER 18, 1981 7RDERS The Commission has emphasized that,
[iln view of the complexity of this pro-ceeding, and in order that the Commission may make its decision within a reasonable period of time, we stress that the
[ Licensing] Board should focus cliariv upon the questions asked by the Commission.
Memorandum and Order, 13 N.R.C. at 6 (emphasis added).
The Commission has issued a mandate to this Licensing Board concerning the issues which are to be resolved in this proceeding:
it is important that contentions raised by parties and sub-issues raised by the
[ Licensing] Board in this proceeding con-tribute materially to answering those designated issues.
[T]he Commission emphasizes that its purpose is to ensure that the [ Licensing] Board is empowered only to accept and formulate, af ter consultation with the parties, those con-tentions which seem likely to be important to resolving the Commission's questions and thereby.
. assure that the proceeding remains clearly focused on the issues set forth in this Order.
.m
\\
~
Memorandum and Order at 1-2 (filed Sept. 18, 1981).
Thus, it is incumbent upon the Licensing Board to closely scrutinize contentions propounded by intervenors to ensure that the proceeding does not contravene the Commission's Orders.
The likely breadth of contentions is presaged by the lack of specificity and breadth of the intervention petitions already filed.
For example, many petitions to intervene fail to clearly state the issues with respect to which the petitioners wish to file testimony and present evidence.
- See, e.3_.,
Petition for Intervention of the Council of the City of New York.
Other petitions state issues which extend beyond the Licensing Board's jurisdiction, in light of the September 18, 1981 Order.
See Petition for Leave to Intervene of the Greater New York Council on Energy at 3; Petition for Leave to Intervene of Friends of the Earth, Inc. at 3.
The Licensing Board should enunciate precise and focused contentions centered on the issues announced by the Commission.
Failure to do so will result in an unfocused proceeding which would likely not meet the September 18, 1982 time frame.
e
....,._..-,,n
i 6
Respectf ully submitted,
~
'^
S Cnarles Morgan, Jr.
Paul F.
Colarulli Joseph J.
Levin, J 1899 L Street, N.W.
Washington, D.C.
20036 (202) 466-7000 Thomas R.
Frey General Counsel Charles M.
Pratt Assistant General Counsel 10 Columbus Circle New York, New York 10019 (212) 397-6200 MORGAN ASSOCIATES, CHARTERED 1899 L Street, N.W.
Washington, D.C.
20036 SHEA & GOULD 330 Madison Avenue New York, New York 10017 POWER AUTHORITY OF THE STATE OF NEW YORK Licensee of Indian Point Unit 3 10 Columbus Circle New York, New York 10019 Dated:
December 1, 1981
..,..-e.,
.v.,,
e.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Louis J.
Carter, Chairman Mr. Frederick J.
Shon Dr. Oscar H.
Paris
)
In the Matter of
)
)
CONSOLIDATED EDISON COMPANY OF NEW YORK, INC.
)
Docke t Nos.
(Indian Point, Unit No. 2)
)
50-247 SP
)
50-286 SP POWER AUTHORITY OF THE STATE OF NEW YORK
)
(Indian Point, Unit No. 3)
)
)
ORDER Based upon pre-hearing memoranda filed with this Board and the pre-hearing conference held on December 2,1981, pursuant to this Board's Order of November 9, 1981, it is this day of December, 1981, ORDERED 1.
That intervenors shall have the burden of going forward with the evidence on all issues in this proceeding.
Accordingly, the filing of testimony and the presentation of evidence at the hearing shall be made in this order:
intervenors shall act firat, followed by the Nuclear Regulatory Commission staff, and concluded by the licensees.
- l
- e.
- 2 ~-
2.
That the Board adopts the schedule set forth below:
December 2 Special Prehearing Conference and Filing of Contentions Due December 11 Response to Licensees' 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 December 30 Motions Objecting to Contentions December 31 Discovery Ends on Intervention Petitions January 6 Evidentiary Hearing on Intervention until completed Petitions January 11 Responses to Motions Objecting to Contentions January 15 Memoranda on Evidentiary Hearing on Intervention Petitions January 29 Order on Intervention Petitions and Contentions Discovery Begins February 12 Objections to Order on Contentions and Intervention Petitions February 26 Responses to Objections to Order on Contentions and Inter'rention Petitions March 5 Order on Motions Objecting to Contentions March 22 Discovery Ends April 5 Motions for Summary Disposition April 26 Answers to Motions for Summary Disposition May 10 Reply to Answers to Motions for Summary Disposition May 17 Pre-hearing Conference May 24 Order on Motions for Summary Disposition 4
...
- e Completion of this schedule for the hearing and post-hearing phases of this. proceeding will await the Board's final Order on intervention and contentions.
3.
That to be admissible, all contentions must conform strictly to the Commission's Orders of January 8, 1981, and September 18, 1981.
i i
FOR THE ATOMIC SAFETY AND LICENSING BOARD Louis J.
Carter, Unalrman Administrative Judge 4
UNITED STATES OF AMERICA DOCKETED NUCLEAR REGULATORY COMMISSION U21RC BEFORE THE ATO*iIC SAFETY AND LICENSINd8bOM6-2 A11:42 Before Administrative Judges:,; a);I53 3 3E Vb b R ^
Louis J.
Carter, Chairman ERANCH Mr. Frederick J.
Shon Dr. Oscar H.
Paris
)
In the Matter of
)
)
CONSOLIDATED EDISON COMPANY OF NEW YORK, INC.
)
Docket Nos.
(Indian Point, Unit No. 2)
)
50-247 SP
)
50-286 SP POWER AUTHORITY OF THE STATE OF NEW YORK
)
(Indian Point, Unit No. 3)
)
)
CERTIFICATE OF SERVICE I hereby certify that on the 2nd day of December, 1981, I caused a copy of the foregoing Power Authority's Special Pre-hearing Conference Memorandum and Proposed Order to be served by first-class mail, postage prepaid on the following:
e 4
(
Louis J.
Carter, Esq.
Mr. Frederick J. Shon 23 Wiltshire Road Atomic Safety and Licensing Board Philadelphia, Pennsylvania United States Nuclear 19151 Regulatory Commission Washington, D.C.
20555 Dr. Oscar H.
Paris Counsel for NRC Staff Atomic Safety and Licensing Board Of fice of the Executive United States Nuclear Legal Director Regulatory Commission United Statts Nuclear Washington, D.C.
20555 Regulator 7 Commission Washington,
.).C.
20555 Brent L.
Brandenburg, Esq.
Charles J. Mailkish, Esq.
Consolidated Edison Company General Counsel of New York, Inc.
The Port Authority of New York 4 Irving Place and New Jersey New York, New York 10003 One World Trade Center, 66S 4
New Yo rk, New York 10048 Consolidated Edison Company of Mr. John Gilroy New York, Inc.
Westchester Coordinator ATTN:
Mr. John D. O'Toole Indian Point Project Vice President New York Public Interest Research 4 Irving Place Group New York, New York 10003 240 Central Avenue White Plains, New York 10606 Mr. Richard P.
Remshaw West Branch Conservation Association Project Manager 443 Buena Vista Road Consolidated Edison Company New Ci ty, New Yo rk, 109 56 of New York, Inc.
4 Irving Place - Room 749S New York, New York 10003 Jeffrey M.
Blum, Esq.
Westchester People's Action New York University Law School Coalition, Inc.
4 23 Vanderbilt Hall P.O.
Box 488 40 Washington Square South White Plains, New York 10602 New York, New York 10012 Mayor George V.
Begany Ellyn R.
Weiss, Esq.
Village of Buchanan Harmon and Weiss 236 Tate Avenue 1725 I Street, N.W.,
Suite 506 Buchanan, New York 10511 Washington, D.C. 20006 Alan La tman, Esq.
4 Ms. Joan Holt 44 Sunset Drive New York Public Interest Research Croto n-On-Hud so n, New York 10520 Group 5 Beekman Street Andrew S.
Roffe, Esq.
New York, New York 10038 New York State Assembly Albany, New York 12248
Ezra I.
Bialik, Esq.
Steve Leipzig, Esq.
Marc L.
Parris, Esq.
Environmental Protection Bureau County Attorney New York State-Attorney General's County of Rockland Office 11 New Hempstead Road Two World Trade Center New Ci ty, New Yo rk 10956 New York, New York 10047 Jonathan L.
Lev i ne, Es q.
Ms. Pat Posner, Spokesperson P.O.
Box 280 Parents Concerned About New City, New York 10956 Indian Point P.O.
Box 125 Renee Schwartz, Esq.
Cro ton-Un-Hudson, New York 10520 Bo tein, Hays, Sklar and Herzberg 200 Park Avenue New York, New York 10166 Greater New York Council Honorable Ruth W.
Messinger on Energy Council Member c/o Dean R.
Corren 4th District, Manhattan New York University City Hall 26 Stuyvesant Street New York, New York 10007 New York, New York 10003 Mr. Geof frey Cobb Ryan Mrs. Lorna Salzman Conservation Committee Chairman Friends of the Earth Director, New York City 208 West 13th Street Audubon Society New York, New York 10011 71 West 23rd Street, Suite 1828 New York, New York 10010 M.
Alfred B.
Del Bello Westchester County Executive Stanley B.
Klimberg, Esq.
Westchester County General Counsel 148 Martine Avenue New York State Energy Office New York, New York 10601 2 Rocke feller State Plaza Albany, New York 12223 stS LD CLA 1 b(i Paul F.
Colatulli p_,