ML20049H562
| ML20049H562 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 03/02/1982 |
| From: | Brandenburg B, Levin J CONSOLIDATED EDISON CO. OF NEW YORK, INC., MORGAN ASSOCIATES, POWER AUTHORITY OF THE STATE OF NEW YORK (NEW YORK |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML20049H563 | List: |
| References | |
| ISSUANCES-SP, NUDOCS 8203030301 | |
| Download: ML20049H562 (12) | |
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Ut1ITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSIO!!
o COMMISSIONERS:
4 A
r Nunzio J.
Palladino, Chairnan Victor Gilinsky OECCfV2O 1
Peter A.
Bradford 3*
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John F. Ahearne 2
" M 0 3 ;982 * "'
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" Q 4tu Thomas it. Roberts In the !!atter of Doc. "
50-247 SP 50-286 SP CONSOLIDATED EDISOli COMPANY OF NEW YORK It!C. (Indian Point, Unit tio. 2)
March 2, 1982 POWER AUTHORITY OF THE STATE OF !!EU YORK (Indian Point, Unit tio. 3)
______________________________________x LICENSEES' EMERGENCY APPLICATION FOR RELIEF FRO!! ORAL DISCOVERY RULIt!G Power Authority of the State of New York (the
" Authority"), licensee of Indian Point 3 Nuclear Power Plant, and Consolidated Edison Company of New York, Inc.
(" Con Edison"),
licensee of Indian Point Station, Unit No. 2 (collectively the
" licensees") hereby apply to the Connission for relief from an oral discovery ruling issued by the Atonic Safety and Licensing Board ( the " Board" ) herein, and a stay of the Board's ruling pursuant to 10 C.F.R.
S 2.788.
8203030301 820302 p6p$
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This proceeding was initiated by the Commission, pursuant to its Orders of January 8,1981 and September 18, 1981, to examine seven site-specific issues relating to the Indian Point reactors.
The Commission's September 18, 1981 i
Order appointed the Board to conduct the inquiry.
The Board is currently considering the admissibility of contentions and petitions for leave to intervene.
It has yet to issue a special pre-hearing conference order for the purpose of admitting parties and contentions.
Nevertheless, on February 9,1982, two applicants for joint intervention in this proceeding, Union of Concerned Scientists and New York Public Interest Research Group (col-lectively "UCS-NYPIRG") filed a motion for " discovery" and
" entry upon land" ("UCS-NYPIRG Motion"; a copy of which is annexed hereto as Exhibit A).
This access is to be permitted during a full scale emergency planning exercise mandated by generic requirements of the Commission and the Federal Ener-gency Management Agency (" FEMA") scheduled for March 3, 1982.*
UCS-NYPIRG has broadly requested permission to As stated in the licensees' answer to the UCS-NYPIRG Motion (" Licensees' Answer"; a copy of which is annexed hereto as Exhibit D), the haste with which the Board and the Commission must deal with UCS-NYPIRG's motion and the serious safety concerns it raises is entirely the fault of UCS-NYPIRG, which waited until the eleventh hour to make its application with respect to the long-scheduled emergency planning exercise..
observe the exercise from a number of facilities under the control, variously, of the licensees, state and local govern-ments, and others, including the licensees' reactor control rooms and emergency operations facility (" EOF").
Late Friday afternoon (February 26, 1982), the licensees received oral notification that the Board had granted the UCS-NYPIRG Motion.*
The matters raised by the UCS-NYPIRG Motion are now before the Comnission pursuant to the Board's certification The licensees have not yet received a written order from the Board.
The licensees' understanding of the terms of the Board's Order is set forth in Licensees' Application for Certification ( Exhibit C hereto at pp. 1-2).
Briefly stated, we understand that the Board granted access to the control rooms and EOF; requested the State of New York and certain counties involved to cooperate (suggest-ing that the State's cooperation or lack thereof would be considered by the Board in ruling on the State's appli-cation to participate in the proceeding); and accepting a stipulation among the Staf f, FEMA and UCS-NYPIRG with respect to other items.
Licensees were advised on Friday, February 26 that a written order would be available be-fore noon on Monday, March 1.
During a conference call on the afternoon of March 1, the Board advised that a written order would be available later in the day on March 1.
Subsequently, licensees were advised that a written order will not be available until March 2.
If the written order is available prior to filing of this application with the Commission, the order will be i
annexed -- if not, a copy will be provided to the Com-mission as soon as it is available.
h under 10 C.F.R.
S 2.718(i).*
The reasons why the UCS-NYPIRG Motion should be denied are detailed in licensees' Answer (Exhibit B hereto) and licensees' Application for Certification (Exhibit C hereto).
To the licensees' knowledge, this is the first instance in which any licensees have been compelled to 4
allow unspecified persons into the control rooms of operating nuclear plants.
The Board's directive would also require the licensees to disregard the security provisions set forth in the Commission's regulations (10 C.F.R. S 73.55(d)(7)).
We particularly invite the Commission's attention to two items raised in licensees' Application for Certification which require determination by the Comnission aside from the merits.
First, the licensees' request that the Connission stay the Board's ruling, pursuant to 10 C.F.R.
S 2.788, pending review by the Commission.**
The requirements of S 2.788 are clearly met herein, since:
I The Board announced that it would certify its ruling to the Commission during a telephone conference call among the licensees, Staf f, and UCS-NYPIRG on March 1,1982.
10 C.F.R.
S 2.788 empowers the Comnission to stay a Licensing Board 's ruling upon consideration of four L
criteria:
1 (1) thether the noving party has nade a strong showing that it is likely to prevail on the merits; l
(footnote continued) i
_4_
i
(1) the licensees' arguments which include, inter alia, critical safety issues and the Board's lack of jurisdiction, are o
likely to prevail on the merits; (2) because the energency exercise is only hours away, and any damage resulting from the grant-ing of UCS-NYPIRG's motion could not be undone, the licen-sees would otherwise suffer irre 1 arable harm; (3) as UCS-NYPIRG has not been granted party status, there can be no harm to other " parties";
(if granted such status UCS-NYPIRG will have ample access to other ef fective means of discovery); and (4) the public interest in effective emergency planning and safe, un-interrupted operation of the Indian Point plants warrants a stay.
(These arguments are set forth in greater detail in Licen-sees' Application f or Certification ( Exhibit C hereto). )
l 1
(footnote continued)
(2)
Whether the party will be irreparably injured unless a stay is granted; l
(3)
Whether the granting of a stay would harm other parties; and (4)
Where the public interest lies.
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Second, if the extraordinary ruling below is allowed to stand, the licensees request an undertaking by the Connis-sion to hold harmless and indennify the licensees against 7.ny consequences resulting fron the presence of UCS-NYPIRC repre-sentatives in the control rooms or EOF during the exercise (including, but not limited to, the cost of any replacement power necessitated by consequences resulting from the presence of UCS-NYPIRC representatives in vital areas).
The licensees --
which have extraordinary commitments to the public safety as well as to their consumers, bondholders, and shareholders --
cannot assume the risk of irreparable harm that could otherwise follow.
WHEREFORE, the licensees respectfully ask that the Commission enter an Order:
(1) staying the Board's ruling on the UCS-NYPIRG Motion until that ruling has been finally reviewed; (2) upon such review, reversing the ruling of the Board, and denying the UCS-NYPIRG Motion in its en-tirety; and r-
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(3) in the event that the Board's ruling is allowed to stand, pro-O viding an undertaking by the o
Connission to hold harmless and in-dennify the licensees against any consequences resulting from the presence of UCS-!!YPIRC represen-tatives in the control rooms or energency operations facility (in-cluding, but not limited to, the cost of any replacement power necessitated by actions resulting from such presence);
together with such other and further relief as the Connission may doen j ust and proper.
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i Respectfully submitted,
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Drandenburgy)'
Brent L.
' Paul F.'JolarullijCharyes t} organ, Gy ' 7.4 >
Joseph J.
Levin, Jr.
o CONSOLIDATED EDISON PORGAN ASSOCIATES, CHARTERED COMPANY OF NEW YORK, INC.
1899 L Street, N.W.
Licensee of Indian Point Washington, D.C.
20036 Unit 2 (202) 466-7000 4 Irving Place New York, New York 10003 (212) 460-4600 Thomas R.
Frey General Counsel Charles M.
Pratt Assistant General Counsel POWER AUTHORITY OF THE STATE OF NEW YORK Licensee of Indian Point Unit 3 10 Columbus Circle New York, New York 10019 (212) 397-6200 Bernard D. Fischman Michael Curley Richard F. Czaja David H.
Pikus l
SHEA & GOULD 330 Madison Avenue New York, New York 10017 (212) 370-8000 i
Dated: March 2,
1982 l-UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Louis J. Carter, Chairman Frederick J.
Shon Dr. Oscar H.
Paris
)
In the Matter of
)
Docket Nos.
)
CONSOLIDATED EDISON COMPANY OF NEW YORK, )
50-247 SP INC. (Indian Point, Unit No. 2)
)
50-286 SP POWER AUTHORITY OF THE STATE OF NEW YORK )
(Indian Point, Unit No. 3)
)
March 2, 1982
)
CERTIFICATE OF SERVICE I hereby certify that copies of LICENSEES' EMERGENCY APPLICATION FOR RELIEF FROM ORAL DISCOVERY RULING in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, this 2nd day of March, 1982.
Docketing and Service Branch
- Ellyn R. Weiss, Esq.
Office of the Secretary William S.
Jordan, III, Esq.
U.
S. Nuclear Regulatory Harmon & Weiss Commission 1725 I Street, N.W.,
Suite 506 Washington, D.C.
20555 Wa sh ing ton,
D.C.
20006 i
Louis J. Carter, Esq., Chairman Joan Holt, Project Director Administrative Judge Indian Point Project Atomic Safety and Licensing New York Public Interest Board Research Group U.S.
Nuclear Regulatory 5 Beekman Street Commission New York, N.Y.
10038 Washington, D.C.
20555 t
Dr. Oscar H. Paris John Gilroy, Westchester Administrative Judge Coord inator Atomic Safety and Licensing Indian Point Project U.S.
Nuclear Regulatory New York Public Interest Commission Research Group washington, D.C.
20555 240 Central Avenue White Plains, New York 10606 e
Mr. Frederick J.
Shon Janice Moore, Esq.*
Administrative Judge Counsel for NRC Staff Atomic Safety and Licensing Office of the Executive Board Legal Director U.S. Nuclear Regulatory U.S.
Nuclear Regulatory Commission Commission Washington, D.C.
20555 Wash ing ton, D.C.
20555 Alfred B.
Del Bello Jeffrey M. Blum, Esq.*
Westchester County Executive New York University Law Westchester County School 148 Martine Avenue 423 Vanderbuilt Hall New York, N.Y.
10601 40 Washington Square South New York, N.Y.
10012 Marc L. Parris, Esq.
Charles J. Maikish, Esq.
Eric Thorson, Esq.
Litigation Division County Attorney The Port Authority of County of Rockland New York and New Jersey 11 New Hemstead Road One World Trade Center New City, N.Y.
10956 New York, N.Y.
10048 Geoffrey Cobb Ryan Ezra I. Bialik, Esq.
Conservation Committee Steve Leipsiz, Esq.
Chairman, Director Enviromental Protection Bureau New York City Audubon Society New York State Attorney 71 West 23rd Street, Suite 1828 General's Office New York, N.Y.
10010 Two World Trade Center New York, N.Y.
10047 Greater New York Council on Energy c/o Dean R.
10003 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ _
Atomic Safety and Licensing Atomic Safety and Licensing Board Panel Appeal Board Panel U.S.
Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Uashington, D.C.
20555 Andrew S.
Roffe, Esq.
Honorable Richard L.
Brodsky New York State Assembly Member of the County Albany, N.Y.
12248 Legislature Westchester County County Of fice Building White Plains, N.Y.
10601 Renee Schwartz, Esq.
Pat Posner, Spokesperson Botein, Hays, Sklar & Herzberg Parents Concerned About Attorneys for Metropolitan Indian Point Transportation Authority P.
O.
Box 125 200 Park Avenue Croton-on-Hudson, N.Y.
10520 New York, N.Y.
10166 Stanley B.
Klimberg Charles A.
Scheiner, Co-General Counsel Chairperson New York State Energy Office Westchester People's Action 2 Rockefeller State Plaza Coalition, Inc.
Albany, New York 12223 P.O.
Box 488 Uhite Plains, N.Y.
10602 Honorable Ruth Messinger Alan Latman, Esq.
Member of the Council of the 44 Sunset Drive City of New York Croton-on-Hudson, N.Y.
10520 District No. 4 City Hall New York, New York 10007 Lorna Salzman Zipporah S.
Fleisher Mid-Atlantic Representative Uest Branch Conservation Friends of the Earth, Inc.
Association 208 Uest 13th Street 443 Buena Vista Road New York, N.Y.
10011 New City, N.Y.
10956 s i
i
[
Mayor George V.
Begany Judith Kessler, Coordinator Village of Buchanan Rockland Citizens for Safe 236 Tate Avenue
. Ene rg y Buchanan, N.Y.
10511 300 New Hempstead Road New City, N.Y.
10956 Ms. Amanda Potterfield, Esq.*
Mr. Donald L.
Sapir, Esq.
P.O.
Box 384 60 East Mount Airy Road Village Station RFD 1, Box 360 New York, New York 10014 Croton-on-Hudson, New York 10520 i
s.
I n
David H.
Pikus i
- Service effected by hand delivery on March 2, 1982.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY C0Wi!SSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
CONS 0LIDATED EDIS0N COMPANY OF NEW YORK
)
Occket Nos. 50-247 SP (Indian Point Unit 2)
)
50-286 SP
)
POWER AUTHORITY OF THE STATE OF NEW YORK
)
February 9, 1982
~
(Indian Point Unit 3)
)
UCS/NYPIRG MOTION FOR DISCOVERY AND TO PERMIT ENTRY UPON LA',T IN CONTROL OF THE LICENSEES AND INTERESTED STATES The Union of Concerned Scientists and the New York Public Interest Research Group request the Atomic Safety and Licensing Board to issue an order requiring the Licensees, CONSOLIDATED EDISON COMPANY OF NEW YORK and POWER AUTHORITY OF THE STATE OF NEW YORK and the Interested States, COLTTY OF ROCKLA',*D, COUNTY OF WESTCHESTER and NEW YORK STATE, and requesting Orange and Putnam Counties, to per=it representatives of organizations that have filed petitions to intervene in this matter and that join this motion to observe the emergency planning exercise scheduled for the Indian Point site Subt.itted by:
Jeffrey M. Blum, Esq.
Joan Holt, Project Director New York University Law School Amanda Potterfield, Esq.
423 Vanderbilt Hall New York Public Interest 40 Washington Square South Research Group, Inc.
New York, New York 10012 5 Beekman Street (212) 598-3452 New York, New York 1003S (212) 349-6460 Union of Concerned Scientists New York Public Interest Research Group, Inc.
on March 2nd or 3rd, 1982.
The emergency planning exercise scheduled for March 2 or 3, 1982 is relevant to Commission Quest ion Three and to the intervenort ' contentions, and is well within the scope of discovery.
Commission Question Three asks "the current status and degree of q
i conformance with NRC/ FEMA guidelines of state and local emergency planning."
Periodic exercises such as the one scheduled for March at Inc'ian Point are required by NRC regulations to evaluate emergency response capabilities, develop and maintain skills and to identify deficiencies which are then to l
be corrected. 10 CFR 50.47 (b)(14). Thus, the holding of the drill as re-i quired by NRC/ FEMA guidelines is pertinent to Commission Question Three.
The process of the drill and its results are the subject of intervenors' contentions and of the Statements of Position submitted by the Licensees and l
Staff. UCS/NYPIRG Contention I-A asserts numerous specif'ic deficiencies in the Indian Point emergency plans which may be further identified as the result of the March 1982 exercises.
Basis 17 of UCS/NYPIRG Contention I-A particular-ly challenges the provisions for drills in the plans and the failure of the i
drills to provide a realistic test of emergency response capabilities and t
skills. The observation of the drill by intervenors will be a substantial l
step in determining which factors concerning the drills will be litigated I
at the upcoming hearing, and serve the purposes of discovery.
I Moreover, the Licensees and the Staff each defer to FEMA in their respective positions on Commission Question Three; Con Edison and the Staff both rely on the March 1982 exercises and the subsequent FEMA review to determine what deficiencies exist in the plans.
Con Edison Statement of Position, pp. 16-17; NRC Staff Statement of Position, pp. 4-5; PASNY State-ment of Position, pp. 4-5 (asserting that FEMA has already determined the plans to be adequate, but without identifying when or where).
The reliance of the Licensees and the Staff on the upcoming drill to
i 3,
support their positions on Commission Question Three demonstrates not only the relevance of the drill to the ultimate issues, but also the need for inter-1 U
venors to observe the drill as part of discovery. Observation of practice exercises as part of discovery has been allowed in at least two recent i
proceedings.
Intervenors were permitted to send observers to practice exer-cises at Three Mile Island and at Big Rock Point, whera emergency planning issues were raised in a spent fuel pool expansion proceeding in early 1980.
The intervenors appreciate the need for the drill to be conducted without hindrance and obstruction, and intend by this request only to gain relevant information in the most efficient and least burdensome manner to all parties. The rules of discovery of the NRC specifically provide for entry upon land as a discovery method, (10 CFR 2.740), and it is submitted j
that this method is the most appropriate in the circumstance of the drill.
Intervenors will comply with any safeguards necessary to the effective carry-ing out of the exercises, which are consistent with the discovery purposes of the observers.
As a matter of courtesy, UCS/NYPIRG notified Westchester, Rockland, Putnam and Orange Counties and the FEMA Regional Office ot. February 9, 1982, of this request to observe the drill.
UCS/NYPIRG has been authorized by the following intervenor organizations to state that each of them supports and joins this request and would send observers as part of the intervenors' team:
the Westchester People's Action Coalition; Parents Concerned About Indian Point; Creater New York Council on i
e Energy; Friends of the Earth; the New York City Audubon Society; West Branch I
Conservation Association; Rockland Cf'.1zens for Safe Energy.
l WHEREFORE, the Union of Concerned Scientists, the New York Public Interest I
Research Group, Inc., the Westchester People's Action Coalition, Parents Con-l l
cerned About Indian Point, Greater New York Council on Energy, Friends of the l
l Earth, the New York City Audubon Society, West Branch Conservation Association, i
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4 and Rockland Citizens for Safe Energy request the Board tc. issue an order requiring the Licensees art Interested States to permit two representatives or censultants from one of the intervenor organizations to:
- 1) observe the March 1982 exercises from the cantrol room of Indian Point Unit 2 (Con Edison):
2) to observe the March 1982 exercises from the control room of Indian Point Unit 3 (PASNY);
- 3) observe the March 1982 exercises f rom the near-site emergency operations facility;
- 4) observe the March 1982 exercises from the State Emergency Operations Center in Albany, New York; observe th' March 1982 exercises from the Office of Disaster 5) e Preparedness (ODP) Southern District, Emergency Operations Center in Poughkeepsie, New York;
- 6) observe the March 1982 exercises from the Rockland County Emergency Operations Center;
- 7) observe the March 1982 exercises from the Westchester County Emergency Operations Center;
- 8) observe the March 19S2 exercises from the Putnam County Emergency Operations Center;
- 9) observe the March 1982 exercises frem the Orange County Emergency Operations Center;
- 10) observe the >brch 1982 exercises from a traffic control point r
in a sector selected for " evacuation
- 11) observe the March 1982 exercises from a reception center whose facilities are selected for testing;
- 12) observe the March 1982 exercises from a congregate care facility selected for testing;
- 13) observe the March 1982 exercises from a monitoring and decon-
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5 tamination center for workers, whose facilities are selected for testing;
- 14) observe the March 1982 exercises f rom a monitoring and decontamination center for the general public selected for testing;
- 15) observe the March 1982 exercises f rom a school, a hospital, and other institutions selected for testing.
It is further requested that the Board issue an order requiring the Licensees and Interest States to permit two representatives or consultants from one of the intervenor organizations to:
- 1) be present at any pre-exercise meetings at which County, State, and/or Federal of ficials will be briefed on their assignments;
- 2) be present at any pre-exercise meetings between County, State, and/or Federal observers;
- 3) be present at any pre-exercise briefings of the media by County, State, and/or Federal officials;
- 4) be present at any post-exercise meetings among County, State and/or Federal agencies' observers.
It is further requested that the Board issue an order requiring the release to intervenors of prepared scripts for and/or outlines of the exercises distributed to participants in advancc and also requiring the preservation by Federal agencies' observers of charts, notes, and comments on the exercise for f urther examination and, discovery by intervenors.
Respectfully submitted, Joan Holt, Project Director Amanda Potterfield, r.sq.
Jeffrey M. Blum, Esq.
New York Public Interest New York University Law School Research Group, Inc.
423 Vanderbilt Hall 5 Beekman Street 40 Washington Square South New York, New York 10038 New York, New York 10012 (212) 49-64 M7 (212 598-3452
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New rk, ew York Februar 19s2
t UNITED STATES OF AMERICA NUCLFAR REGULATORY COMMISSION ATOMIC SAFETY AND LICE!! SING BOARD Before Administrative Judges:
Louis J.
Carter, Chairman Frederick J.
Shon Dr. Oscar H.
Paris
_________________________________________x
)
In the Matter of
)
)
Docket Mos.
CONSOLIDATED EDISON COMPANY OF NEW YORK, )
50-247 SP l
INC. (Indian Point, Unit No. 2) 50-286 SP
)
POWER AUTHORITY OF THE STATE OF NEW YORK (Indian Point, Unit No. 3)
)
February 24, 1982
)
x l
LICENSEES' ANSWER TO UCS-NYPIRG MOTION FOR DISCOVERY AND TO PERMIT ENTRY UPON LAND IN CONTROL OF THE LICENSEES AND INTERESTED STATES l
l ATTORNEYS FILING THIS DOCUMENT:
Charles Morgan, Jr.
Brent L.
Brandenburg MORGAN ASSOCIATES, CHARTERED CONSOLIDATED EDISON l
1899 L Street, N.W.
COMPANY OF NEW YORK, INC.
Washington, D.C.
20036 4 Irving Place (202) 466-7000 New York, New York 10003 (212) 460-4600 x., I., r,.
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TABLE OF CONTENTS PRELIMINARY STATEMENT.
2 THE LICENSEES' OBJECTIONS.
3 (1) UCS-NYPIRG's application is beyond The Board's jurisdiction.
3 (2) The motion is premature.
7 (3) UCS-NYPIRG seeks discovery against non-parties.
9 (4) There is no proper basis for UCS-NYPIRG's request.
12 A. UCS-NYPIRG distorts the purpose of 52.741.
13 B. UCS-NYPIRG should not be permitted entry to secure facilities.
14 C. UCS-NYPIRG will not be prejudiced by denial of its motion.
17 1
PRELIMINARY STATEMENT Consolidated Edison Company of New York, Inc.
(" Con Edison"), licensee of Indian Point Station, Unit No.
2, and Power Authority of the State of New York
(" Authority"), licensee of Indian Point 3 Nuclear Power Plant (collectively the " licensees"),
submit this memorandum, pursuant to 10 CFR S2.730(c), in opposi-tion to the motion filed February 9, 1982 by potential joint
~
intervenors Union of Concerned Scientists and the New York Public Interest Research Group, Inc. (collectively "UCS-NYPIRG") for Discovery and to Permit Entry Upon Land in Control of the Li-censees and Interested States.*
UCS-NYPIRG broadly requests permission to observe the Indian Point energency planning exercise scheduled for At the outset, we note that UCS-NYPIRG's motion is pre-mature since it fails to follow the Code's procedures for discovery.
Section 2.741 of 10 CFR explicitly directs that discovery by entry upon land be sought by service of a request upon the appropriate party. That party then has 30 days to respond or cbject to the request.
Only after such response do the Commission's rules allow an intervenor to move the Board to compel discovery.
The instant motion attempts to circumvent these clear procedures.
While UCS-NYPIRG claims to have notified the counties and FEMA
"[als a matter of courtesy" on February 9 of this discovery request, it failed to make the request upon the licensees which is explicitly required by S 2.741.
The energency planning exercise which is the subject of the motion has long been scheduled--any urgency in the instant applic-ation is due to UCS-NYPIRG's unexplained delay in pre-viously seeking discovery pursuant to proper procedure. -
March 3, 1982 from a number of facilities under the control, variously, of the licensees, state and local governments, and others.
UCS-NYPIRG f urther requests permission to attend pre-and post-exercise meetings between the licensees and govern-i t
mental authorities.
The licensees oppose UCS-NYPIRG's motion on the grounds that (1) UCS-NYPIRG's application is beyond the Board's jurisdiction; (2) the motion is premature; (3) UCS-NYPIRG seeks discovery against non-parties; and (4) there is no proper basis for UCS-NYPIRG's request.
THE LICEUSEES' OBJECTIONS (1) UCS-NYPIRG's application is beyond the Board's jurisdiction.
UCS-NYPIRG treats the upcoming exercise as if it were part of this investigatory proceeding, and therefore subject to the Board's jurisdiction.
UCS-NYPIRG is plainly Even the most cursory reading of the Commission's wrong.
regulations demonstrates that the exercise is nothing more than an ongoing generic regulatory requirement of the Comnis-sion and the Federal Emergency Management Agency (" FEMA").
Pursuant to 10 CFR 550.54(g), each " licensee authorized to possess and/or operate a nuclear power reactor shall follow and maintain in effect emergency plans which meet the standards in S50.47(b) of this part and the requirenents in Appendix E to this part."
Section 50.47(b), in turn, requires all licensees to conduct periodic exercises "to evaluate major portions of emergency response capabilities" and periodic drills "to develop and maintain key skills."
Appendix E, Part F pro-vides more detailed guidance for accomplishing these objectives.
Thus, the upcoming exercise is no more related to this proceeding than any other of the hundreds of tasks the licensees perform each c'ay to comply with Commission regulations.
UCS-NYPIRG could not suggest that by ordering this investigatory proceeding to examine seven narrowly-drawn questions, the Com-mission intended the Board to assume jurisdiction over every aspect of the licensees' operations which may somehow be exanined herein.*
Apparently recognizing the weakness of its jurisdictional position, UCS-NYPIRG argues that the Commission Staff and the licensees have themselves placed the exercise at issue herein in their respective statements of position on the Conmission's Issue 3.
(UCS-NYPIRG motion at p. 2.)
UCS-NYPIRG virtually concedes, however, that the Authority made no reference to the exercise.
Con Edison and the Staff merely made factual reference to the exercise, along with numerous other references to Comnission regulations with which the licensees must comply.
Such reference does not provide sufficient basis for the relief requested.
Few elements of Commission procedure are as well-settled as the principle that an Atomic Safety and Licensing Board possesses only the jurisdiction delegated to it by the Commission.
- See, e.g., 10 CFR 52.721(a) ("[t]he Commission or the Chairman of the Atomic Safety and Licensing Board Panel may from time to time establish one or more atomic safety and licensing boards...to preside in such proceedings for granting, suspending, revoking, or amending licenses or authorizations as the Commission may designate, and to perform such other ad-judicatory functions as the Commission deems appropriate")
(emphasis added); Public Service Co. of Indiana (Marble Hill Nuclear Generating Station Units I and 2), 3 N.R.C.
167 (1976)
(" licensing boards are delegates of the Commission and exercise only those powers which the Commission has given [them]");
Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), 5 N.R.C.
1290 (1977) (licensing board denied applicant's motion for an exemption from property control regulations on the ground that the Commission had not delegated to the board the power to grant exemptions).
Northeast Nuclear Energy Co.
(Montague Nuclear Power Station, Units 1 and 2), 1 N.R.C. 436 (1975) establishes beyond any doubt that the Board lacks jurisdiction to entertain l
UCS-NYPIRG's motion.
Under strikingly similar circumetances, that Board denied a request by interested states and intervenors l
to attend meetings between the staff and licensees or to receive verbatim transcripts thereof.
These meetings related both to l. ~
issues raised in petitions to intervene and to the preparation of certain safety reports to be released to the public upon completion.
The board denied the requests on grounds which apply equally herein:
Under the Commission's regulatory scheme, the Staff is given the duty of reviewing appli-cations for licenses (Section 2.102).
This re-view results in at least two important products, the Safety Evaluation Report and the Draft En-vironmental Statement.
The regulations do not give the Licensing Board a part in this review or in the preparation of the resulting reports..
The Commission has delegated to the Licensing Boards power and duties with respect only to the hearing process (2.104 and 2.718).
The Staff's review and reporting function is largely com-pleted in a setting outside the hearing process and therefore without the purview of the Licensing Board.
The fact that the two areas of activity may proceed, for a time, concurrently, does not extend to the Board any supervisory authority over that part of the process that has been en-trusted to the Staff.
If the parties here argue that such a trust is unwise or that the Staff should perform it in a differen.t way, then that argument is an attack on the regulations which is beyond the cognizance of this Board.
Moreover, the Staff by specific regulation has the authority to confer privately with any party (Section 2.102(a)).
New Hampshire argues that this regulation does not apply to contested cases, but the Board is unable to so read the section.
(Emphasis added.)
Id. at 437.
The emergency planning exercise, likc the preparation and review of the safety reports in Nor+heast Nuclear, is simply one of hundreds of required functions performed by the licensees in the course of their normal operations, under the jurisdiction.-
of the Commission and Staff.
Thus, just as in Northeast Nuclear, the " regulations do not give the Licensing Board a part in this review" since the " Commission has delegated to the Licensing Board [ } power and duties with respect only to the hearing process" even though the hearing and the regulated activity may proceed concurrently.
Any argument that the Commission has made such a delegation is belied by the January 8, 1981 and September 18, 1981 Orders, which contain not a single word about emergency planning exercises.
Since the Board lacks jurisdiction, UCS-NYPIRG's motion must be denied.
(2) The motion is premature.
UCS-NYPIRG moves for discovery as if it had already been granted intervenor status and all of its contentions had been admitted.
However, no party has yet been granted inter-vencr status and no contentions have been admitted.* Indeed, replies to responses to objections to contentions were just served on February 11, 1982.
The Authority, Con Edison, and l
the Staff have all made valid and well-supported objections j
to most of the petitions to intervene and the contentions, i
Further, discovery may not be used in the framing of con-tentions.
Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), 6 A.E.C. 188, aff'd, 6 A.E.C. 241 (1973).
l l l I
including those upon which the instant discovery motion is based.
The licensees submit that discovery cannot proceed before these two issues are resolved.
Prior to admission of the potential intervenors as parties to this proceeding, they have no standing to take discovery.
This argument. is based not only upon compelling logic, but upon the clear dictates of the Commission's Rules of Practice.
Appendix A (IV)(a) to 10 CFR Part 2 states:
Once the key issues in controversy are identified in the special pre-hearing conference order (S2.751a.(d)),
discovery may proceed and will be limited to those matters. (Empnasis added.)
Indeed, 10 CFR 52.740(b)(1)--the very section relied upon by UCS-NYPIRG in its instant discovery request--also states that discovery shall begin only after _the prehearing conference...and shall re-late only to those matters in contro-versy 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.)*
Thus, UCS-NYPIRG's motion is clearly premature, since the prehearing conference has yet to be held, and no prehearing Although Appendix A and 10 CFR S2.740 appear in a portion of the Rules relating to construction permit and operating license proceedings, it is well-settled that this rule applies equally to all Atomic Safety and Licensing Board proceedings.
Allied-General Nuclear Services (Barnwell Fuel Receiving and Storage Station), 5 N.R.C.
489, 491 n.
1 (1977).
- Indeed, UCS-NYPIRG itself relies on S 2.740.
order has been issued.*
(3) UCS-NYPIRG seeks discovery against non-parties.
Section 2.741 expressly limits discovery by entry upon land to discovery against parties to the proceeding:
(a) Request for discovery.
Any party may serve on any other party a request to:
(2) Permit entry upon designated land or other property in the possession or control of the party upon whom the re-quest is served for the purpose of in-spection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of S2.740.
(Emphasis added.)
Thus S2.741 contains two requirements in addition to the rule that discovery be made by a party:
(1) that discovery be made only against a party; and (2) that the rubject property i
l be in the " possession or control" of that party.
The instant case falls squarely within the holding of Santa Fe International Corp. v. Potashnick, 83 F.R.D. 299 l
UCS-NYPIRG cites two instances in which intervenor represent-atives were permitted to observe emergency planning exercises.
Neither instance is controlling herein.
At Three Mile Island, the reactor was not operating and a very limited number of observers were voluntarily admitted by the licensee.
At Big Rock Point, the jurisdictional (pp. 3-7) and other questions l
herein were not raised.
In that case, intervenor status had already been granted and relevant contentions admitted.
More-i over, intervenors were not permitted entry to the control room, certain off-site facilities, or briefings.
1 l
(E.D.La. 1979).*
Plaintiff had been a pipe laying subcontractor on a ecnstruction project in which defendant was the general contractor.
Plaintiff sought to enter upon property, a barge owned by a non-party (Netherlands Offshore Co.) for the pur-pose of inspection of pipe.
Recognizing that the barge owner was not a party and therefore not subject to Rule 34(b), plaintiff argued that defendant was in " possession or control" of the barge.
The Court observed that defendant retained the right to enter upon the premises of the barge owner for the purposes of ensuring that the work performed by the barge owner was accept-able under the subcontract.
But the Court went on to hold:
However,'our conclusion that Potashnick has the legal right to enter upon the barge for the purposes of inspecting the work of Netherlands does not necessarily resolve the central issue here.
While such right to enter upon the barge for the limited purpose of inspecting for contract compliance nay be spoken of as a species of control, we seriously doubt Santa Fe was decided under Fed.R.Civ.P. 34(a), which con-tains language indentical to 10 CFR S2.741 regarding entry upon land.
The Commission and Licensing Boards have repeatedly noted that in situations where the Commission's Rules track the Federal Rules, " Federal court decisions involving [the Federal Rule] illuminate, and provide appropriate guidelines for interpreting, the discovery standards set forth in the Commission's rules."
Allied-General Nuclear Services (Barnwell Fuel Receiving and Storage Station),
5 N.R.C. 489 (1977).
We note that Fed.R.Civ.P. 34(c) allows the entry upon the land of non-parties by commencement of an independent action against such non-parties.
Such a provision is conspicuously absent from the Commission's Rules.
that it may be equated with the control required by Rule 34(a).
It appears from our review of the subcontract between Potashnick cnd Netherlands that Potashnick's right to control the barge, if it may be so designated, is a right to enter upon the barge to inspect the completed work only.
It is not a right to general access to the barge or a right to permit access by persons whose presence is unnecessary to the limited purpose of Potashnick's deter-mination of whether there has been compli-ance by Netherlands with the contract.
Id. at 301.
Accord, Humphries v. Pennsylvania Railroad Co.,
14 F.R.D. 177 (N.D. Ohio, 1953) (motion to enter premises denied because there was "no showing that defendant has
' possession or control' of the premises as required");
see also Consumers Power Co. (Midland Plant, Units 1 and 2),
5 A.E.C. 142 (1972), where the Licensing Board held pur-suant to 10 CFR 52.741:
The interrogatories were served on the Associrtion, which has neither posses-sion, custody, or control of the data needed to answer them.
Thus, an essential requirement for discovery is missing.
The " land" upon which UCS-NYPIRG seeks entry includes inter alia, the control rooms of the licensees' reactors; the licensees' near-site emergency operations facility
(" EOF");
operations centers owned by various governmental authorities; and schools and reception centers.
Of these, only the control rooms and EOF are within the " possession or control" of a party.
The State of New York and Rockland County have expressly chosen not to participate as parties, but instead to appear under the
" interested State" rule of 10 CFR S2.715(c)*; Orange and Putnam Counties have not applied to participate in any manner.
- Hence, they are not parties and cannot be subject to 52.741.
The Staf f,
although a party, has neither possession nor control of any of the facilities at issue.**
Indeed the licensees and the Staff have even less possession and control over the non-licensee fac-ilities herein than the defendant in Santa Fe had over the barge.
Hence, UCS-NYPIRG's motion must necessarily be limited to the two control rooms and the EOF, the only three facilities under the control'of " parties."
And for the reasons set forth elsewhere in this document, even those requests must be denied.
(4) There is no proper basis for UCS-NYPIRG's request.
Even beyond the aforementioned procedural infirmities, UCS-NYPIRG has incorrectly assumed that a S2.741 motion for entry upon land is proper herein.
For several reasons, this assumption is misplaced.
Westchester's County Executive has applied to appear as an " interested State."
Further, UCS-NYPIRG has not even attempted to comply with the special provisions of the Code governing dis-covery of the Staf f.
- See, e.g., 10 CFR SS 2.720, 2.744, 2.790.
A.
UCS-NYPIRG distorts the purpose of 52.741.
Contrary to UCS-NYPIRG's assumption, a motion for entry upon land is not designed for use every time a party wishes to enter property for any reason.
Rather, the purpose of the rule is generally to inspect machinery or ongoing operations in the context of a negligence or other action..
In the case of the Commission's regulations, its evident purpose is to permit inspection of hardware and material which is frequently the subject of licensing proceedings.
This reading of the discovery rule finds firm support in Belcher v. Bassett Furniture Industries, Inc., 588 F.2d 904 (4th Cir. 1978).
In that employment discrimination case, plaintiffs also sought to expand the " entry upon land" rule beyond its proper limit.
They requested an unbridled inspec-j tion of defendant's plants on the mere assertion that it "might reveal 'significant' evidence not discernible through a review of documents alone.
What that 'significant' evidence might be was unspecified."
Id. at 907.
These are strikingly similar to the vague, unspecified assertions of need raised by UCS-NYPIRG.
In denying plaintiff's motion, the court expressly noted the limited applicability of the rule:
Neither counsel's directions nor our own resrarch has led us to compelling precedent e
for the type of inspection sought here. I
Most cases involving on-site inspections concern a given object on the premises which is the subject matter of the action, as, for example, a particular machine in a personal injury or patent infringement case.
(Footnote omitted.)
Id. at 910.
The emergency exercise herein is certainly not an " object on the premises," and is not even the subject matter of this proceeding (see pp. 3-7, above).
Hence, it is not a proper subject for S2.741 discovery.
B.
UCS-NYPIEG should not be permitted entry to secure facilities.
UCS-NYPIRG's motion obscures the fact that Indian Point 3 is a licensed, fully-operational nuclear power plant which will in fact be operating on the day of the exercise, and its request to send unidentified observers into the highly sensitive control room and EOF is improper for this additional reason.
Commission regulations and licensee procedures man-dated thereunder require that access to these facilities be tightly controlled even under normal circumstances, and that non-essential personnel be excluded.
See 10 CFR S 50.54(p);
It is especially critical that non-essential personnel be excluded during the exercise.
Duty personnel will not only be preoccupied with their normal, sensitive task of operating the reactor, but must aisc participate in the exercise.
All __
licensee personnel trained and qualified to enter the control room and EOF have already been conmitted to emergency exercise functions and to escort essential visitors to these facilities.
The objectives of the exercise include simulating ac-tual accident conditions to the greatest extent possible.
Of course, intervenor observers would not be present in sensitive facilities during an actual emergency.
Hence, the UCS-NYPIRG request is inconsistent with the aims of the exercise.
The licensees are determined to do their part to make the exercise succeed.
It is clear that the potential intervenors do not share this desire.*
The licensees should not be forced to divert essential personnel fron their assigned tasks in order to Potential intervenors have frequently made statenents suggesting that they have no constructive interest in amergency planning, but instead reck to disparage it, as a means of closing the plants.
NYPIRG's representative, Joan Holt, has claimed that the " emergency preparedness scheme of the NRC is a criminal sham."
Consumer Group Raps Carey on Indian Point, Daily News, Nov. 18, 1980 at 10.
Her organization's true intentions are further revealed in the following testimony before the Conmission:
CHAIRMAN AHEARNE:
[I] f I was tracking what some of your initial connents were tell me if this impression is wrong.
l The impression I got was that if a number of changes are made in the operator improvements, procedural improvements i
and in short and long tern safeguards tnat there are really no set of those that would meet your concerns.
MS. HOLT:
That's right.
(Footnote continued) l l l
escort and monitor non-essential (and concededly, hostile)
" observers."*
Certain of UCS-NYPIRG's disco ~ery requests will v
also jeopardize the success of the exercise.
The potential intervenor demands access to all pre-exercise meetings and briefings as well as scripts and/or outlines.
A major require-(Footnote continued)
CHAIRMAN AHEARNE:
That your concerns really would only be met when the plant is being shutdown.
MS. HOLT:
Yes, because of the site.
That's my personal view, yes.
And that's the view of my crganization.
We feel that there is no way because you cannot guarantee that accidents cannot happen.
You can debate probabilities all day but they can happen, and if they happen our region is in double jeopardy because of the dense population.
Transcript of NRC Public Meeting, presentation by Commenters in UCS 2.206 Petition on Indian Point at 71-72 (Feb. 5, 1980).
The presence of such individuals at highly sensitive facilities could serve no constructive purpose and, indeed, would hinder the licensees' efforts to conduct a successful, unobstructed exercise and promote public confidence in the safe operation of the plants.
The licensees are additionally concerned tnat UCS-NYPIRG has not identified any of its
" observers" or their qualifications and intentions.
UCS-NYPIRG also ignores yet another additional influx of personnel that its request would entail.
If UCS-NYPIRG is granted access to these facilities, the licensees--as is customary in discovery--will want to have counsel present.
Staf f, interested states, and perhaps other intervenors may also wish to be present.
The f acili-ties in question are small, and not designed to accom-modate non-essential personnel.
USC-NYPIRG's request could ef fectively transform a control room into a court room in the midst of an important exercise.._-
ment of the exercise, however, is to tightly control the circulation of information prior to the exercise so as to assure the most realistic simulation possible.
Consequently, the licensees oppose this request as well.
As to post-exercise briefings, FEMA will hold a public hearing pursuant to Proposed 44 CFR S 350.10 (currently followed by FEMA) (45 Fed. Reg. 42,341, 42,346 (June 24, 1980)),* in which UCS-NYPIRG will have anple opportunity to participate.
Further participation is unnecessary and not sanctioned either as discovery or as part of Commission or FEMA regulations.
C.
UCS-NYPIRG will not be preju-diced by denial of its motion UCS-NYPIRG exaggerates the importance of attending the emergency exercise.
Without any support or explanation, it concludes that "this method is the most appropriate."
(Motion at p. 3.)
UCS-NYPIRG totally ignores the burden upon the l
licensees, and the alternative methods of discovery available to intervenors.
This was a major consideration in denying entry upon property in nelcher v.
Bassett Furniture, supra.
The Although still formally a " proposed" rule, FEMA treats the rule as a final rule.
45 Fed. Reg. at 42,343. __
Court noted that "[i]t is clear that the right to discovery is a qualified right that does not extend to making unnecessary and unwarranted excursions onto the property of another under the guise of supportable litigative need."
588 F.2d at 908 n.
12.
The Court further observed that an uncontrolled physical inspection of defendant's property would allow plaintiff to circumvent certain procedural safeguards to which defendant would be entitled through proper discovery devices.
As the Court held, "one method cannot arbitrarily be demanded over another simply because it is less burdensome to the moving party." Id. at 910.
UCS-NYPIRG, if granted intervenor status, will have ample access to other effective discovery devices.
Reports will be prepared, records will be made, and discovery of Staff, FFMA, and licensee witnesses will undoubtedly be requested.
Moreover, as noted above, FEMA rules expressly provide for a public hearing subsequent to the exercise.
See Proposed 44 CFR 5350.10, 45 Fed. Reg. 42,341, 42,346 (June 24, 1980).
Potential intervenors will have every opportunity to attend and participate.
FEMA has thus chosen to allow public participation through those means, not by actual attendance at exercises.
I Finally UCS-NYPIRG has f ailed to demonstrate how its unidentified " observers" will generate any reliable discovery at the exercise.
FEMA, on the other hand, is a public agency with special competence in emergency planning, and is charged with evaluation of the exercise.
Its reports are public documents which will, of course, be available to potential intervenors.
Thus, UCS-NYPIRG would not be prejudiced by denial of its motion.
h'HEREFORE, the licensees respectfully urge that UCS-NYPIRG's Motion for Discovery and to Permit Entry Upon Land be denied in all respects.
l l
l t
i -...
Respectfully submitted, i
s b
/r
$n B Nnt L.
Brandenbur (f.apjles Morgan,p r.T Pau7 F. Colarulli Joseph J.
Levin, Jr.
CONSOLIDATED EDISON COMPANY MORGAN ASSOCIATES, CHARTERED OF NEW YORK, INC.
1899 L Street, N.W.
Licensee of Indian Point Washington, D.C.
2003'
~
Unit 2 (202) 466-7000 4 Irving Place New York, New York 10003 (212) 460-4600 Thomas R.
Frey General Counsel Charles M. Pratt Assistant General Counsel POWER AUTHORITY OF THE STATE OF NEW YORK Licensee of Indian Point Unit 3 10 Columbus Circle New York, New York 10019 (212) 397-6200 Bernard D. Fischman Michael Curley Richard F. Czaja David H.
Pikus SHEA & GOULD 330 Madison Avenue New York, New York 10017 (212) 370-8000 Dated:
February 24, 1982
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