ML20039D325

Prehearing Conference Memorandum & Proposed Order Per ASLB 811119 Order.Proposes Discovery Schedule.Certificate of Svc Encl

ML20039D325
Person / Time
Site:	Indian Point
Issue date:	12/01/1981
From:	Blum J, Holt J, Jordan W HARMON & WEISS, NEW YORK UNIV., NEW YORK, NY, PUBLIC INTEREST RESEARCH GROUP, NEW YORK, UNION OF CONCERNED SCIENTISTS
To:
Shared Package
ML20039D326	List: ML20039D325
References
ISSUANCES-SP, NUDOCS 8112310525
Download: ML20039D325 (15)

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UNITED STATES OF AMERICA g:'-/ w .

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". * *\ 4 P NUCLEAR REGULATORY COP 9tISSION -

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1. .O BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

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CONSOLIDATED EDISON COMPANY ) Docket Nos. 50-247-SP 0F NEW YORK (Indian Point. Unit 2) ) 50-286-SP

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POWER AUTHORITY OF THE STATE OF  %'s '

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UCS-NYPIRG PREHEARING CONFERENCE M(2/

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MEMORANDUM AND PROPOSED ORDER I. INTRODUCTION /

In msponse to the Board's Order of Novenber 9,1981, the Union of Concerned Scientists and the New York Public Interest Research Group, Inc.,

(UCS-NYPIRG) submit their recomendations concaming the following matters l delineated by the Board:

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1) Identification and clarification of key issues in the proceeding; l 2) Amending the pleadings, if necessary or desirable; 1

3) Establishing a schedule for discovery, hearings, and further actions in proceedings, and

4) Such other matters as may aid in the orderly disposition of the proceeding.

The most important point that the Board must keep in mind is that this hearing is not a standard licensing or other adjudicatory hearing. Rather, the purpose of this hearing is to gather evidence as part of an investigation <;;,03 of the safety hazards of Indian Point within the parameters of the questions l

! posed by the Commission in its Orders of January 8 and September 18, 1981.

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i Accordingly, the most important criterion governing the Board's decisions l

l on all procedural matters is how the investigatory purpose can best be served 8112310525 811201 PDR ADOCK 05000247 PDR g

and how the bmadest possible range of information can be gathemd for the Comission's consideration.

II. IDENTIFICATION AND CLARIFICATION OF THE KEY ISSUES IN THIS PROCEEDING Unlike standard licensing proceedings, this investigatory proceeding is govemed by Comission orders that establish seven questions that this Board must address and with mspect to which the Board and the NRC staff are responsible for assuring that all possible relevant infomation is obtained. This responsibility cannot be made to depend upon the ability of intervenors or licensees to raise or address every question. Even if there were no intervenors, the Board would have to conduct the proceeding and assure that the necessary infomation was gathered. Accordingly, the contentions serve a diffemnt function than in other proceedings. Rather than defining the scope of the proceeding and the boundaries of intervenor participation, they should mom pmperly be viewed as guidance to the Board in formulating the issues and organizing the hearings. This is particularly true in light of the Comission's specific dimetive that the Board should admit and formulate contentions without regard to the limitations and strictures of 10 CFR Part 2.

For the same masons, contentions should not be viewed as limiting the participation of any party where a party proposes to provide testimony or to undertake cross-examination that would contribute to the development of a complete record. In addition, since contentions should not determine the acimissibility or extent of participation of any party, but rather provide guidance in conducting the hearing, the licensees as well as the intervenors should be required to provide such assistance to the Board by stating in specific detail how they to intend to respond to each of the Comission's

seven questions. The appropriateness of such a procedure is implicit in the Comission's directive that no side shall have the burden of proof in this proceeding.

At this point the focus must be on devising a strategy to answer thoroughly all seven of the Comission's questions. To atterrpt to narrow the issues now would be contrary to the spirit of the Comission's Order as well as counterproductive for the hearings themselves.

III. Amending the Pleadings Consolidated Edison, the Power Authority of the State of New York (PASNY), and the NRC Staff have attempted to challenge virtually all of the intervention petitions of any parties whose interests are not similiar to theirs. We believe that this effort mpresents a serious misunderstand-ing of the purpose of this proceeding and is contrary to the investigatory spirit that the Commission intends. We urge the Board to make it clear from the outset that it will not allow a concem for unnecessary technical-ities to impede the progress of the investigation, but will insist on broad public participation in order to assum as complete a record as possible.

With respect to the arguments raised by the licensees and the NRC Staff, we believe most am frivolous. This is particularly the case with the PASNY filing, which goes well beyond the bounds of reasoned debate to unseemly polemic. We urge the Board to ignore the PASNY filing and to indicate which of the NRC Staff or Con Edison arguments may raise significant concerns about the participation of any intervenors. We recommend that the inter-venors then be given 15 days in which to respond in writing to the issues identified by the Board and to amend their petitions as necessary.

IV. SCHEDULE FOR DISCOVERY, HEARINGS AND FURTHER ACTIONS IN THE PROCEEDINGS UCS-NYPIRG have developed a detailed schedule that will permit the Board to pmceed expeditiously to address and resolve the most significant issues raised by the Comission, to address all other issues shortly there-after, and to conglete the proceeding and provide s report well within the Septenber 18, 1982 time limit established by the Comission. Unlike the NRC Staff's proposed schedule, this one minimizes procedural delays, focuses on the most significant issues and the investigatory nature of the proceeding, and provides greater margin for unforseen delays so as not to ieopardize the September 18 deadline.

In order to accomplish these goals, UCS-NYPIRG proposes that this pro-ceeding be divided into two phases. In the first phase, the Board will consider the current status of emergency planning to mitigate the conseq-uences of mactor accidents. These questions go to the heart of the initial issue of whether existing emergency planning is adequate to address the potential range of accident consequences. To the extent that planning is adequate to handle any potential emergency, precise estimates of accident probabilities become less important.

It is apparent from the Comission's Orders of January 8,1981 and September 18, 1981 that immediate review of emergency planning measures is desired:

The Comission is also interested in the current state of emergency planning in the vicinity of of the Indian Point site and in future improvements in that planning.

(emphasis added). Accordingly, the Comission has directed the investigatory proceeding to address itself specifically to:

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 emer-gency procedures that are feasible and should be taken to protect the public?

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Question 4, January 8 Order (emphasis added). The emphasis _on future improvements, time schedule, and additional measures.that should be taken, ,l myeals an unmistakable intention to[have 'the hearings . review emergency n _,_

planning efforts while they am still undeniay: -

Perhaps the most conpelling reason thaf the state of emergency' plan- q

• 1 ning, and the closely intertwined issue of accident cSosequences, trus't be j addressed first is the fact-that NRC Staff supervision of offsite energency H

, < c- ,. ~q planning appears to have broken down, and the Staff may ha improperly' ,

concluded that major deficiencies in the Indian Point off:ite, emergency ~ -/

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plans have been corrected. In a letter of August 23,1981 (Attachment 1), i w ,

l Boyce Grier informed the licensees that the major deficiencies identi fied . 1 I

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in an earlier April 24 letter and order (Attachment;?) hav~e been "relolveY ' m  !

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satisfactorily." However, three days prio,r, kr. Grier ha'd info"cr6,d hi% -

superior, Mr. Brian Grimes, that the NRC Staff's concerns in' precisely

that area wem far from being resolved (Attachment'1). Indeed;'he had w 'y j prepared a draft letter (Attachment 4) to the licensee which said that "the NRC cannot judge emergency preparedness as being adequate at'your ,

facility until" among other things " facility Stafe arid local emergency' '-

l plans have been reviewed," and " deficiencies which ,have been identified in _

l each of these areas have been corrected." In light of Grier's stiaterents of August 21, it is impossible to believe that his letter 6f August .24, / ,1 claiming resolution of deficiencies is either accurate or'an honest rdflect' - ei i

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ion of Grier's true beliefs. Also see assessments by the Environmental - 7 Protection Agency (Attachment 5). indicating that deficiencies have' not been corrected. ,

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In the face of these irregularities it is important that the investi-gatory hearing address the issue of emergency planning promptly. Forthright w

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actio,n is needed to minsp(m the Staff to pursue its supervisory role

'with due diligence, or at the very least, to clear the air of a growing an: '

a suspicion that emergency plcnriing

' is beirg swept under the rug. UCS,

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lNYpRG;and most' other intervenors. agme that the ultimate question of Qiether tis Indian Point plants.must be shut down turns principally 6pon whether emergency planning can, adequately protect the hear.h and

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j ,sifety of th'e public in the event of a serious nuclear accident. This 7 ,

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de' pends upon whether onsite and offsite emergency plans "are adequate

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,' .,'and'capabig o,1 being implemented." 10 C.F.R. $ 50.54. Early hearings I' '  ; on emergency' planning, far from causing " prejudice to one or more liti-

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'l ' ' - gants," Potomac Electric Power Co., (Dougias Point Nuclear Generating 7,Stati6n, Un'itk I hnd 2), ALAB-277,1 NRC 539 (1975); Allied-General

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.,, $Yuc'iea[ Services et al.,(Bamwell Nucleah Fuel Plant Separations Facility),

• ALNN296,2NRC671(1975), will result'in the clearest identification of s

remitipog deficiencies at the earliest possible date. This will maximize the licensees' opportunjty to correct deficiencies prior to the show cause

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, hearing.thatiill like5y follow coinpletion of the investigatory hearings.

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w 4t jwill-31so,minimit.e tr.;r risk of prejudice to the licensees caused by the l' , ,

NRC Staff's failure to give them adequitte notice of the remainino deficiencies requiring .y correction. By identifying deficiencies at the outset, the invest-9 .,,z

igatory,beirings will be able to ses. not only whether adequate plans exist, butfwhetiier they are indeed feasible at all. Thus, there will be great

, ,"advakage to}the public interest aph to the litigants in having early" resolution of the emirgency planning issues, even if the initial resolution m  :- m is"' inconclusive? 'and subject to fut.ure modification. Id.

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- ,e UCS and NYPIRG 'reconnend,that the Phase I of the hearings proceed first

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,  ;' ,,i with the mlatively naYrow f6cused inouiry into the adequacy of current emer-5 "i gency planning, as set out, .orimarily in our Contention I.

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, . .s has' been completed , attention would shift to the b ader issues of our

'N t? mmainini contentions, including particularly the size of the plume EPZ l

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. and the, potential consequence 5 ~of an Indian Point accident. l s s,, UCS-NYPIRG's propos d' schedule is! set forth below: l

. b ' '\ ' S ecial pmhearing conference December 2,1981

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^ Board A state its position on objections toipetitions to intervene by December 9,1981

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Board to state desimd clarification

,' of contentions by December 16, 1981 w Time expires to amend petitions to 1,ntervene by 15 days from date of Board's order on petitions s Time expires to amend contentions by two weeks from date of Board's order on contentions (December 30, 1981 at the

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latest)

Detailed statement' of position due from licensees December 30, 1981 ALSB Order on petitions for leave

- to intervene, mquests to participate and contentions January 11, 1982 Discovery begins. on Part I of the ,

hearings January 11, 1982

--Last day for filing interrogatories and mquests (March 3,1982) for production of documents

, --Last day for filing admissions (March 10,1982) l Objections to ASLB Contentions Order j filed January 21, 1982 l

l Objections to ASLB Contentions Order filed by Staff January 26, 1982 Discovery begins on Part II of the hearings February 8,1982

--Last day for filing inter-rogatories and requests for for production of documents (March 31,1982)

--Last day for filing admissions (April 7,1982)

Close of discovery on Part I February 25, 1982 s

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Prehearing Confemnce for Part I of the hearings March 4,1982 l File written testimony on Part I and Close of Discovery on Part II March 25,1982 Time expires for filing summary disposition motions (pertains to April 1,1982 Part II only)

Start of hearings on Part I April 12, 1982 Time expires for filing answers to motions for summary disposition April 29,1982 Time expires for filing supplemental responses to motions for suninary disposition May 14, 1982 Conclusion of hearings on Part I May 14,1982 Prehearing conference for Part II May 17,1982 ASLB Order on motions for summary disposition May 24, 1982 Filing of findings for Part I June 4,1982 File written testimony for Part II June 7,1982 Filing of findings by Staff for Part I June 11,1982 Start of hearings on Part II June 22, 1982 Reply findings due for Part I June 25,1982 End of hearings on Part II July 16,1982 Filing of findings for Part II Augus t ~ 6,1982 Filing of findings by Staff for Part II August 13, 1982 Filing of reply findings for Part II August 27, 1982 Issuance of ASLB mcommendations Septenber 18, 1982 The above schedule is preferable to the NRC Staff's proposed _ schedule in several respects. The Staff's proposal has no actual hearings coninence until June 23,1982. It then allows only five weeks for completion of all hearings.

The assumption that hearings can be completed within that time frame is unduly

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cptimistic, given the bmadth of topics addmssed by the Comission's seven questions. Momover, the late starting date means that any exten-sion of time for the hearings will almost certainly delay the ASLB's report beyond its September 18 deadline.

The Staff's schedule is so tightly compressed during the months of June through September that no time is allotted for filing mply findings of 1

fact, even though these am traditionally a key part of the hearing process.

Even if the Staff's schedule proceeds exactly as planned, it is unmalistic to expect the ASLB to receive findings on all issues on August 27,1982, and to then have them digested and incorporated into a report with recommendations i

1 by September 18, 1982. Such intense deadline pressum will likely impede camful resolution of the issues.

Hearings that am postponed until sumer begin too late to provide the i

desired stimulus for emergency planning efforts. Conversely, the lengthy delay inposed by the extended schedule for sumary disposition motions is largely unnecessary for issues in Part I of the hearings. The Comission's Order makes clear that these issues am to be investigated as fully as possible mgardless of the adequacy or inadequacy of intervenor's efforts. The amount i of time lost in delaying the hearings outweighs whatever minimal time that could be saved by disposing sumarily with a few peripheral issues.

l V. OTHER MATTERS A. Discovery of the NRC Staff Given the vital role of the NRC Staff in supervising onsite and offsite emergency planning as well as the suspicions and uncertainties that surround curmnt staff efforts, it is highly desirable that intervenors, interested states and licensees be able to conduct formal discovery of the NRC Staff.

The irregularities revealed in the August,1981 comunications between Boyce Grier and Brian Grimes constitute "a showing of exceptional circumstances"

within the meaning of 10 CFR S 2.720 (h) (2) (1), and therefore empower the presiding officer to " require the attendance and testimony of NRC personnel" at the hearings or at depositions. Regular procedures should be established by which parties may apply for leave to depose particular Staff members. Such leave should be granted at an early date  ;

for UCS-NYPIRG to depose Grier and Grimes. To ameliorate controversy over the Staff's role, the presiding officer should apply liberally the provisions of 10 CFR 2.720 (h) (2) (ii) that allow him "to require that the Sta#f answer the interrogatories" propounded by parties to the hearing.

B. Location of the Hearings To promote overall convenience of parties, wftnesses and the Board, hearings should be held in two locations. For the period during which officials fnun Westchester, Rockland, Putnam and Orange Counties will be testifying hearings should be held in White Plains, a location readily accessible from each of these counties. The remainder of the hearings should be held in Manhattan where the largest number of parties and counsel are based.

C. Procedural Measures to Expedite the Proceedings As these hearings progress, it will be essential that all parties have ready access to relevant information in order to respond to motions, questions from the Board and other developments. It will also be essential that all parties be able to raview the record of the proceeding thoroughly and effi-ciently in order to provide the Board with proposed findings of fact and to assure that the record is complete. Accordingly, we recommend several pro-cedural devices for this purpose.

First, it has become clear through experience that the local public document rooms (LPDR)do not contain all of the information mlevant to this proceeding. For example, of the mvised emergency plans, only the Westchester County component is available, and it is available only in the White Plains LPDR. In addition, it appears that some LPDR's throw out some materials each month for lack of space, and that they lack the staffing to provide proper maintenance and service with respect to the NRC materials.

Accordingly, the Board should direct the Staff to assure that all LPDRs contain all relevant materials, that the materials are properly maintained, and that adequate service is provided.

Second, both the NRC Issuances, containing all NRC decisions, and the Procedural Digest are essential to expedited and useful responses issues in this proceeding. They must be available and properly maintained at all LPDRs.

Finally, the adequacy and utility of participation by any party depends upon its ability to mview the transcript during the hearings so that it can most usefully focus its participation and prepare findings of fact for the Board. So that the Board may have this assistance in expediting the hearing, we mcommend that copies of the transcript be provided on a next-day basis to all parties.

Respectfully submitted M ik av T % % % 6.c.b.

William S. JoYdan, III Hannon and Weiss 1725 I Street, N.W.

Suite 506 Washington, D.C. 20006 I

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Jeffrey Blum New York University School of Lau 40 Washington Square So.

Room 423 New York, New York Counsel for UCS '

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J n Holt New York Public Interest Research Group, Inc.

5 Beekman Street New York, NY 10038 For NYPIRG

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UNITED STATES OF AMERICA '

NUCLEAR REGULATI Y COP 9tISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD l

Louis J. Carter, Chairman

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1 Frederick J. Shon i Dr. Oscar H. Paris '

In the Matter of )

CONSOLIDATED EDISON COMPANY OF NEW YORK (Indian Point, Unit 2) Docket Nos. -24

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POWER AUTHORITY OF THE STATE OF )

NEW YORK (Indian Point, Unit 3) )

MEMORANDUM AND ORDER ,

1 Prior to the prehearing confemnce held in this matter on December 2, 1981, the Board requested that all parties file fonnal prehearing conference memoranda on proposed procedures and a proposed schedule for these hearings.

Having considemd those filings and other matters discussed during the pm-hearing confemnce, the Board issues the 'following crder.

It is ORDERED: l t

1. This proceeding will be governed by the following schedule except as later altered by the Board:  ;

Event Date Special prehearing confemnce December 2,1981 i

Board to State its position on object-ions to petitions to intervene by December 9,1981 Board to state desimd clarification of contentions by December 16, 1981 Time expims to amend petitions to intervene by 15 days fmm date of Board's order of petitions i

Time expims to amend contentions by two weeks from cate of Board's l order on contentions (December 30, 1981 at the latest)

Detailed statement of position due from licensees December 30, 1981  ;

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- 2-ASLB Order on petitions for leave to intervene, requests to participate and contentions January 11, 1982 Discovery begins in Part I of the hearings January 11, 1982

--Last day for filing interrogatories and rNuest for production of documents (March 3,1982)

--Last day for filing admissions (March 10,1982)

Objections to ASLB Contentions Order filed January 21, 1982 Objections to ASLB Contentions Order filed by Staff January 26, 1981 Discovery begins on Part II of the hearings February 8,1982

--Last day for filing interrogatories and mquests for production of documents (March 31,1982)

--Last day for filing admissions (April 7,1982)

Close of discovery on Part I February 25, 1982 Prehearing Confemnce for Part I of the hearings March 4,1982 File written testimony on Part I & Close of Discovery on Part II March 25, 1982 Time expires for filing summary disposition motions -(pertains to Part II only) April 1,1982 Start of hearings on Part I April 12,1982 Time expires for filing answers to motions for sumary disposition April 29,1982 Time expires for filing supplemental responses to motions for summary disposition May 14, 1982 Conclusion of hearings on Part I May 14, 1982 Prehearing conference for Part II May 17, 1982 ASLB Order on motions for summary disposition May 24, 1982 Filing of findings for Part I June 4,1982 File written testimony for Part II June 7,1982 Filing of findings by Staff for Part I June 11,1982

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l Start of hearings on Part II June 22,1982

Reply findings due for Part I June 25,1982 End of hearings on Part II July 16,1982 Filing of findings for Part II August 6, 1982 Filing of findings by Staff for Part II August 13, 1982 Filing of reply findings for Part II August 27, 1982 Issuance of ASLB recommendations . September 18, 1982 l

2. The NRC Staff shall immediately survey all local public document

. rooms and assure that they contain complete sets of all documents I

relevant to this proceeding and that they are being kept up to date and properly serviced.

3. The NRC Staff shall assure that copies of all transcripts are provided l to all parties on a daily basis.

4. The NRC Staff shall distribute copies of its Procedural Digest to all Parties.

FOR THE ATOMIC 2AFETY AND LICENSING BOARD l

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Louis J. Carter, Chairman e

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RECEIVED -

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Attachment 1

' ElS.iPi8 Allo 50 2 4 AUG 1981 Docket No. 50-247 J M.CE OF UiE SECRETARY 0.C . p' gi f g A

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Consolidatec Edison Company of p New York, Inc. d{ .s idl ATTN: Mr. John D. O'Toole Vice President - Nuclear 2 g.710193I*

' 1 Engineering and Quality Assurance 2'4-A u.kg.g an p/,-

4 Irving Place \

New York, New York 10003 MI j I50.[

Gentlemen: ,

By letter dated April 24, 1981, I' transmitted to you s copy of a letter from -

the Federal Emergency Management Agency'(FEMA) dated April 23, 1981 and its attached letter from FEMA to the New York State Disaster Preparedness Commission dated April 6, 1981. The attachments to the April 6, 1981 letter

('

- listed numerous deficiencies in the New York State and local emergency ~

response plans for the area around your reactor site.

The enclosed letter from FEMA dated August 19, 1981, refers to the o deficiencies in the aforementioned April 6,1981 letter. FEMA concludes that "the present state of planning is generally adequate to carry out the.

responsibilities of the State and local government in the case of an accident at these sites". We therefore conclude that this issue has been resolved satisfactorily.

Sincerely, Crigi=al Sig=ed 37:

8.H. C48EA Boyce H. Grier Director

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Enclosure:

As stated _

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RI:0EPOS RI:0'EPOS RI:0RPI RI:f3EPDIR TOR Snyder/ gwc Smith Brunner Allis /

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0FFtCIAL RECORD CCPY 'il" /

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Consolidated Edison Company of New York, Inc. 2 2 4 AUG icg; cc w/ encl:

C. W. Jackson, Vice President, Nuclear Power K. Burke, Director, Regulatory Affairs W. D. Hamlin, Assistant to Resident Manager (PASNY)

F. Matra, Resident Construction Manager R. P. Remshaw, Nuclear Licensing Engineer Joyce P. Davis, Esquire Brent L. Brandenburg, Assistant General Counsel * -

Honorable Hugh L. Carey, Governor of New York State of New York, Department of Health V. Forde, Acting Regional Director, FEMA '

D. D. Bruen, Chief Executive, Putnam County L. Heimbach, Chief Executive, Orange County -- --

J. T. Grant, Chief, Executive, Rockland County

( A. B. DelBello, Chief Executive, West Chester County i J. Dunkelberger, New York State Energy Office

W. C. Hennessy, Chairman, Disaster Preparedness Commission J. Dickey, Director, REP Division, FEMA Public Document Room (PDR) local Public Document Room (LPOR) o Nuclear Safety Information Center (NSIC)

State of New York NRC Resident Inspector bec w/ enc 1:

Region I Docket Room (with concurrences)

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I OFFICIAL RECORD COPY

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NUCLEAR REGULATORY COMM!SSION Attachment 2

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