ML20049H522

Memorandum Re ASLB 820226 Discovery Ruling Re Petitioner Observation of Emergency Planning Drill.Aslb Ruling Should Not Be Certified to Commission.Alternatively,If Ruling Certified,Argument Should Be Heard.W/Certificate of Svc

ML20049H522
Person / Time
Site:	Indian Point
Issue date:	03/01/1982
From:	Blum J, Holt J, Potterfield A PUBLIC INTEREST RESEARCH GROUP, NEW YORK, UNION OF CONCERNED SCIENTISTS
To:	NRC COMMISSION (OCM)
References
ISSUANCES-SP, OTHR-820301, NUDOCS 8203030251
Download: ML20049H522 (15)

Text

-. _

UNITED STATES OF AMERICA _.,

NUCLEAR REGULATORY COMMISSION

'82 WS -2 NO 57

)

In the Matter of )

a ui.

) e qqs,.50-247SP CONSOLIDATED EDIS0N COMPANY OF NEW YORK -

50-286 SP (Indian Point Unit 2)

)

POWER AUTHORITY OF THE STATE OF NEW YORK m rch 1, 1982 (Indian Point Unit 3)

)

UCS/NYPIRG MEMORANDUM ON BOARD'S DISCOVERY RULING CERTIFIED IO THE NUCLEAR REGULATORY COMMISSION AND REQUEST FOR ORAL ARGUMENT On February 9, 1982, proposed intervenors Union of Concerned Scientists (UCS) and New York Public Interest Research Group, Inc. (NYPIRG)

• filed and served their Motion for Discovery and to Permit Entry Upon Land in Control of the Licensees and Interested States. Among other relief, the Motion requested the Atomic.. Safety and Licensing Board to issue an order requiring the Licensees to permit no more than two representatives from among the proposed intervenor organizations to observe the emergency planning exercises scheduled for March 3,1982, from the emergency operations facility and from the control rooms of Indian Point Units 2 and 3.

! On February 24, 1982, at the initiative if Counsel for the Nuclear Regulatory Commission Staff, the proposed intervenors and the Licensees, the Federal Emergency Management Assoc h tion and the New York State Proposed intervenors Westchester People's Action Coalition (WESPAC),

Parents Concerned About Indian Point (Parents) , Greater New York Council on Energy (GNYCE), Friends of the Earth (F0E), New York City l

AudubonSociety(Audubon),WestBranchConservationAssociation(WBCA J j and Rockland Citizens for Safe Energy (RCSE) joined the Motion. 60 8203030251 820301 PDR ADOCK 05000247

. - ~=. . - - _ - . . .__ -. .

I pagn 2 Commission for Disaster Preparedness met with Staff it. White Plains, New York to negotiate some resolution of the hbtion. The Licensees had filed no response to the Nbtion before coming to the meeting.

Before, during and af ter the meeting, proposed intervenors compromised their requests with regard to Westchester and Rockland Counties, the NRC Staff, and the Federal Management Association, withdrawing those aspects of the Motion relating to the locations of the emergency planning i

exercises under the control of those persons in exchange for limited con-

! cessions as set forth in the Stipulations of February 25 and 26,1982.

The Licensees came unprepared to negotiate on any point, despite repeated assurances by proposed intervenors that reasonable conditions would be observed.

Having waited until the last moment without any intention of resolving the issues through negotiation, the Licensees served their joint Answer to the motion on the evening of February 24th or on February 25th.

i On Friday, February 26th, the proposed intervenors and the Licensees were notified by the NRC Staff that the Atomic Safety and Licensing Board, af ter receiving the Licensees' Answer, had granted, with conditions, those aspects of the discovery motion that had net been resolved through negoti-ation, including the three requests that involved the Licensees: that t

petitioner representatives be permitted to observe the drill from the control rooms of Indiat Point Units 2 and 3.and from the emergency operations I

facility.

The Licensees, through their several attorneys, attempted to obtain i certification of the Board's ruling through a conference en11 late Friday l

afternnon, February 26th, before NYPIRG had received the Licensees' Answer to the bbtion. Upon the instructions of Judge Carter, the attorneys arranged i

i

paga 3 for service of their answer on Saturday, February 27th, and made another conference call to inform UCS and NYPIRG of their arguments for certification.

On Monday, March 1, the Licensees served their written arguments in their Application for Certification and Referral to the Commission and for a Stay of the Board's Ruling. At approximately three o' clock a conference call took place at which the proposed intervenors and the Licensees argued for and against the Board's Order. It was at this Monday af ternoon conference call that the Licensees offered for the first time any facts in support of their argument relating to the size of the control rooms and the numbers of people who would be there the day of the drill. At the February 24th meeting, the Licensees had claimed they were unable to provide proposed intervenors information about the size of the control rooms.

At the close of the conference call, the Board indicated that it would grant the request for certification to the Commission but deny the request for a stay.

UCS and NYPIRG address below the arguments presented by the Licensees in their Answer to the Fbtion and thcir Application for Certification and Referral to the Commission.

I. THE ATOMIC SAFETY AND LICENSING BOARD CORRECTLY RULED THAT PETITIONER-REPRESENTATIVES BE PERMITTED TO OBSERVE THE EMERGENCY PLANNING DRILL FROM THE i EMERGENCY OPERATIONS FACILITY AND CONTROL ROOMS

! 0F INDIAN POINT UNITS 2 AND 3.

A. The Board Correctly Determined that the Emergency Planning Exercise is Subject to Discovery.

The Licensees argued in their Answer to the Motion that the Board should deny the discovery request because the planning exercise is simply a licensing requirement and is not relevant to the investigatory proceeding

l

]

. . Pags 4 on safety issues at Indian Point. The Licensees contended that the

, planning exercise:

is no more related to this proceeding than any other of the hundreds of tasks the licensees perform each day to comply ,

with Commission regulations. l Answer to Motion, p. 4.

The Commission, however, has placed the emergency planning

, exercise squarely within the parameters of this special investigatory hearing by orderin'g the Atomic Safety and Licensing Board to evaluate j the present status of emergency planning at Indian Point. Commission l

Question 3 of Order of September 18, 1981. That the drill is required L

by the regulations does not disqualify it from discovery; to the contrary, -

it is the conformance to the regulations of 10 C.F.R. 50.47(b) and 50.54 i with which the Atomic Safety and Licensic.g Board is to concern itself under the terms of Commission Question Three.

] Since the performance of the drill is patently relevant and material B

j to Commission Question Three, and thus, appropriate for discovery, it cannot be argued that the Board does not have jurisdiction over a motion to permit such discovery.

I l B. The Discovery bbtion Was Not Premature.

The Licensees have argued that the Atomic Safety and Licensing Board acted contrary to footnote four of the Commission's September 18, t

1981 order by departing from the requirements for the beginning of discovery set forth in 10 C.F.R. 2.740(b)(1) . However, the Board's order was in complete conformity with the requirements of that section.

---

o, ,_w-w .-,-,- e,,--,r.,, m,, , = - - ,r --

-v w -m,---n, ,n w ----

-:v--

l page 5 Section 2.740(b)(1) imposes two conditions for the onset of discovery.

First, " discovery shall begin only after thc .special preh'aring e conference provided for in 2.751a", and second, "shall relate only to those matters

~

in controversy which have been identified by the Commission or the presiding officer, in the prehearing order entered at the conclusion of that prehearing conference." (emphasis added). Licensees maintain that because there is as yet no published prehearing order the Board lacks the power to grant discovery requests. This argument is of no avail for two reasons. First, the special prehearing conference provided for in 10 C.F.R. 2.751a was held on December 2,1981 af ter being publicly announced on November 9,1981 in the Board's order of that date. Second, Question Three of the Commission's September 18, 1981 order setting forth the issues to be addressed in the proceeding has identified "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" as a pivotal issue for the hearings. Since the purpose of the March 3 emergency planning drill is to test the current status and degree of conformance with NRC/ FEMA guidelines, its relevance to matters in controversy cannot be doubted.

When the Commission identifies matters in controversy, it is not limited to doing so in a document labeled "prehearing order". The Commission's September 18, 1981 order suffices.

The :act that proposed intervenors have not been formally admitted as parties should not prevent the beginning of discovery where, as here, an event relevant and material to the issues framed by the Commission is to take place before the Board's final order on contentions. The Licensees

page 6 have set forth no prejudice that conceivably could result from the granting of the discovery motion at this time.

Since discovery is now appropriate, the Board made no significant departure from 10 C.F.R Part 2 such as would invoke the requirement of footnote four to the Commission order of September 18, 1981 that the Commission give permission for the departure. Indeed, the Board's ruling is well within its discretion to provide for liberal discovery to expedite these proceedings.

C. The Board's Ruling Does Not Violate Security Considerations.

The Licensees argue in their Answer to the Motion at pp. 12-17, and more specifically in their Application for Certification at pp. 5-8, that the presence of two petitioner representatives in the control rooms would jeopardize the security of the plant in some unspecified manner.

During the conference call, the attorneys for the Licensees expanded their position to argue that there was not enough room in the control roon to permit an additional two people with an escort.

Although thy attorneys for the Licensees have not provided the dimensions of the control room, they did represent that the space available for people during the drill would be six hundred square feet, not including areas in the room's corners. For the twenty-four people already scheduled to be in the control room of Indian Point Unit 3, this figure means that each person would have 25 square feet, hardly cramped quarters for observers.

The addition of two petitioner representatives and one escort would still allow an area of at least 22 square feet per person in the room's open spaces. Licensees have offered no reasons why a standing room area of 22 square feet per person would be insufficient.

1 page 7 It is proposed intervenors' understanding that their request to be present in the control rooms during the emergency planning drill is reasonable, ever. thou8h Indian Point Unit 3 may be operating on the day of the drill. In addition to the precedents cited in the Fbtion, the weekly information report to the Nuclear Regulatory Commission of February 18, 1982 contains the news that a Swedish regulatory employee was permitted to observe the emergency planning exercise in the St.

Lucie nuclear facility, an operating plant.

The Licensees' argument that the presence of petitioner-representatives in the control rooms would be a violation of their duty under 10 C.F.R. 3 73.55(d)(7) is disingenuous in light of the explicit exception in that section for " good cause". Proposed intervenors know of no better 1

cause than the Atomic Safety and Licensing Board's order properly authorizing

! discovery during the drill. Moreover,10 C.F.R. 73.55(d)(6) specifies

! procedures to be used when observers are admitted into protected areas.

Licensees do not dispute that they are capable of following those pro-cedures.

The Licensees must be held to a factual burden of proof in their claim that security would be violated by the presence of two previously identified and escorted observers. To do otherwise would only: allow _the i Licensees to unduly frustrate discovery.

In any event, Licensees' arguments about security apply only to the plants' control rooms, and not to the near-site Emergency Operations Facility.

l

page 8 II. THE COMMISSION SHOULD REFUSE TO ACCEPT CERTIFICATION OF THE BOARD'S RULING At the close of the conference call on Monday, March 1,1982, the Board indicated that it would certify its ruling to the Commission for an interlocutory appeal, but without granting the stay. UCS and NYPIRG respectfully submit that certification is unnecessary because the presence of petitioner-representatives in the control rooms and emergency operations facility neither threatens the Licensees with irreparable harm, nor affects the basic structure of this proceeding. Public Service C 'o. of Indiana, (Marble Hill Nuclear Generating Station, Units 1 and 2), 5 N.R.C.1190,1192 (1977) .

As has been indicated in Point I(c), supra, the Licensees have failed to indicate how'the presence of Robert Pollard, petitioners' proposed representative could jeopardize the security of the plant or the performance of the exercise. Mr. Pollard knows the control room of Indian Point Unit 3, and..cannot be considered an inherent hazard. The argument that an additional two people would be the straw that broke the plant's back is unpersuasive in the absence of any supporting facts about the size of the space and particularly in light of the demonstrated un-willingness of the Licensees to compromise on any point. There has been no sign of good faith negotiation on the part of the Licensees, not even with regard to their insistence on having twenty-one of their own people in the control room.

The Licensees'; claim that the granting of a discovery request before the formal announcement of discovery is similarly superficial and lacking in merit. An early start of discovery can only expedite

• ~

page 9.

the proceedings without prejudicing the Licensees in any way, and is not a substantial change in the nature of these proceedings. On the other hand, to refuse discovery on an arguable technicality will result in prolonged discovery proceedings later, as the intervenors attempt to reconstruct through documents the events can could be viewed easily during the drill.

The Comnission, therefore, should refuse to accept this extraordinary interlocutory appeal, and allow the Board's ruling to stand to that the t

planning exercise and the investigatory proceeding can go forward in an i

orderly and efficient manner.

III. THE COMMISSION SHOULD HEAR ORAL ARGUMENT IN THE EVENT THAT i CERTIFICATION IS ACCEPTED.

If the Commission 2 accepts certification of the Board's order, proposed intervenors respectfully request oral argument through a conference call to permit all sides to fully present their positions.

As noted in the preliminary statement, these objections to the Motion were belatedly presented by the Licensees without any effort to negotiate 4

or compromise. Full and fair consideration of the arguments on both sides requires that proposed intervenors be permitted to present oral arguments to the Commission. This is particularly true with regard to the new facts that were presented for the first time by the Licensees during the

conference call on the af ternoon of March 1,1982.

The participants in a conference call would be:

l Charles M. Pratt, Esq. Joseph J. Leven Power Authority of the State Morgma Associated, Chartered of New York 202-466-7000 212-397-8474 t

l

page 10 Brent Brandenberg, Esq. Richard F. Czaja Consolidated Edison Co. of New Shea and Gould York, Inc. 212-370-8696 212-460-4333 Janice Moore, Esq. Jeffrey Blum, Esq.

Staff Counsel Union of Concerned Scientists 301-492-7313 212-598-3454 William Jordan, Esq. Amanda Potterfield, Esq.

Harmon and Weiss Joan Holt, Project Director Union of Concerned Scientists New York Public Interest Research 202-833-9070 Group, Inc.

212-349-6460 The representatives of the Union of Concerned Scientists and of the New York Public Interest Research Group, Inc. will be available in their offices throughout the day on Tuesday, March 2, 1982.

New York, New York Respectfully submitted, March 1, 1982 W- b Jeffrey Blum, Esq.

New York University Law School 423 Vanderbilt Hall 40 Washington Square South New York, New York 10012 212-598-3454

^

7{

n rik Joatt Holt, Project Director Ned York Public Interest Research Group, Inc.

5 Beekman Place New York, New York 10038 212-3496460 C- l Amanda Potterfield, Esiq.

P.O. Box 384 Village Station New York, New York 10014 212-227-0265

.: i '

UNITED STATES OF AMERICA Cr "TJ .

NUCLEAR REGULATORY COMMISSION 0'

'82 MAR -2 A10 :57 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD U- i . .

[5 [ ~ *ilj In the Matter of )

)

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

. )

POWER AUTHORITY OF THE STATE OF NEW YORK )

(Indian Point Unit 3) ) March 2, 1982 CERTIFICATE OF SERVICE I hereby certify that copies of UCS/NYPIRG MEMORANDUM ON BOARD'S DISCOVERY RULING CERTIFIED TO THE NUCLEAR REGULATORY COMMISSION AND REQUEST FOR ORAL ARGUMENT in the above captioned proceeding have been served on the following by hand at the addresses stated on the attachment:

Commissioners: Nunzio J. Palladino, Chairman John F. Ahearne Peter A. Sradford Victor Gilinsky Thomas Roberts U.S. Nuclear Regulatory Commission

• 1717 H Street N.W.

Washington D.C. 20006 Louis J. Carter, Esq.

Dr. Oscar H. Paris Mr. Frederick J. Shon Janice Moore, Esq.

Charles Morgan, Jr.

( Brent L. Brandenburg , Esq.

l Charles M. Pratt, Esq.

David H. Pikus, Esq.

( ,

~a page 2 and on the remaining individuals listed on the attachment by deposit in the United States mail, first class, all on this 2nd day of March, 1982.

j If YpA N 7 Joan Holt, Project Director NewjYork Public Interest Research Group, Inc.

5 Beekman St.

New York, New York 10038 f h > A yC.L s William ,IordAn '

Harmon and Weiss 1725 I St. N.W. , Suite 506 Washington D.C. 20006 i

I

(

k UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of: Docket Nos. 50-247 SP CONSOLIDATED EDISON COMPANY OF 50-286 SP NEW YORK (Indian Point, Unit 2)

POWER AUTHORITY OF THE STATE OF NEW YORK (Indian Point, Unit 3)

)

SERVICE LIST

- Paul F. Colarulli, Esq.

[DocketingandServiceBranch Office of the Secretary Joseph J. Levin, Jr., Esq.

U. S. Nuclear Regulatory Comission Pamela S. Horowitz, Esq.

Washington, D.C. 20555 Charles Morgan, Jr., Esq.

Morgan Associated, Chartered Louis J. Carter, Esq., Chairman 1899 L Street, N.W.

Administrative Judge Washington, D.C. 20C35 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Comission Charles M. Pratt, Esq.

Washington, D.C. 20555 Thomas R. Frey, Esq.

Power Authority of the Dr. Oscar H. Paris State of New York Administrative Judge 10 Columbus Circle Atomic Safety and Licensing Board New York, N.Y. 10019 U.S. Nuclear Regulatory Comission Washington, D.C. 20555 Ellyn R. Weisf Esq.

William S. Jordan, III, Esq.

Mr. Frederick J. Shon Harmon & Weiss Administrative Judge 1725 I Street, N.W., Suite 506 Atomic Safety and Licensing Board Washington, D.C. 20006 U.S. Nuclear Regulatory Comission Washington, D.C. 20555 Joan Holt, Project Director Indian Point Project Janice Moore, Esq. New York Public Interest Counsel for NRC Staff Research Group Office of the Executive 5 Beekman Street Legal Director New York, N.Y. 10038 U.S. Nuclear Regulatory Comission Washington, D.C. 20555 John Gilroy, Westchester Coordinator Indian Point Project Brent L. Brandenburg, Esq. New York Public Interest Assistant General Counsel Research Group Consolidated Edison Co. 240 Central Avenue of New York, Inc. White Plains, New York 10606 4 Irving Place New York, N.Y. 10003

Jeffrey M. Blum, Esq. NrcDPYrIisNsq.

New York University Law School County Attorney 423 Vanderbeilt Hall County of Rockland 40 Washington Square South 11 New Hemstead Road New York, N.Y. 10012 New City, h.Y. 10010 Charles J. Maikish, Esq. Geoffrey Cobb Ryan Litigation Division Conservation Comittee

The Port Authority of Chairman, Director l New York and New Jersey New York City Audubon Society One World Trade Center 71 West 23rd Street, Suite 1828 New York, N.Y. 10048 New York, N.Y. 10010 l

i Ezra I. Bialik', Esq. Greater New York Council on Energy l Steve Leipsiz, Esq. c/o Dean R. Corren, Director

Environmental Protection Bureau New York University New York State Attorney 26 Stuyvesant Street General's Office New York, N.Y. 10003 Two World Trade Center f

New York, N.Y. 10047 Atomic Safety and Licensing Board Panel Alfred B. Del Bello U.S. Nuclear Regulatory Comission Westchester County Executive Washington, D.C. 20555 Westchester County ,

148 Martine Avenue Atomic Safety and Licensing ,

New York, N.Y. 10601 Appeal Board Panel J U.S. Nuclear Regulatory Comission Andrew S. Roffe, Esq. Washington, D.C. 20555 New York State Assembly Albany, N.Y. 12248 Honorable Richard L. Brodsky Member of the County Legislature Renee Schwartz, Esq. Westchester County '

l Botein, Hays, Sklar & Herzberg County Office Building l Attorneys for Metropolitan White Plains, N.Y. 10601 Transportation Authority 200 Park Avenue Pat Posner, Spokesperson i New York, N.Y. 10166 Parents Concerned About Indian Point Stanley B. Klimberg P.O. Box 125 l General Counsel Croton-on-Hudson, N.Y. 10520 New York State Energy Office 2 Rockefeller State Plaza Charles A. Scheiner, Co-Chairperson Albany, New York 12223 Westchester People's Action Coalition, Inc.

Honorable Ruth Messinger P.O. Box 488 Member of the Council of the White Plains, N.Y. 10602 City of New York District #4 Alan Latman, Esq.

City Hall 44 Sunset Drive New York, New York . 10007 Croton-on-Hudson, N.Y. 10520 J

( Lorna Salzman Mid-Atlantic Representative Friends of the Earth, Inc.

208 West 13th Street New York, N.Y. 10011 Zipporah S. Fleisher West Branch Conservation Association 443 Buena Vista Road .

New City, N.Y. 10956 Mayor George V. Begany Village of Buchanan 236 Tate Avenue Buchanan, N.Y. 10511 Judith Kessler, Coordinator Rockland Citizens for Safe Energy 300 New Hemstead Road

! New City, N.Y. 10956 David H. Pikus, Esq.

Richard F. Czaja, Esq.

330 Madison Avenue

( New York, N.Y. 10017 Ms. kanda Potterfield, Esq.

P.O. Box 384 Village Station New York, New York 10014 Mr. Donald L. Sapir, Esq.

60 East Mount Airy Road RFD 1, Box 360 Croton-on-Hudson, New York 10520