ML20049H793
| ML20049H793 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 03/02/1982 |
| From: | Johari Moore NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC COMMISSION (OCM) |
| References | |
| ISSUANCES-SP, NUDOCS 8203040003 | |
| Download: ML20049H793 (14) | |
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4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION 4
In the Matter of
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CONSOLIDATED EDIS0N COMPANY
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Docket Nos. 50-247-SP 0F NEW YORK (Indian Point, Unit 2 50-286-SP POWER AUTHORITY OF THE STATE OF
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March-2, 1982 NEW YORK (Indian Piont, Unit 3)
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t NRC STAFF RESPONSE TO LICENSING BOARD'S CERTIFICATION CF ITS RULING
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JJaniceE. Moore-Counsel for NRC Staff
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I' UNITED STATES OF AMERICA NUCLEAR REGULATORY COM!!ISSION BEFORE THE COMMISSION In the Matter of CONSOLIDATED EDISON COMPANY
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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
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March 2, 1982 NEW YORK (Indian Piont, Unit 3)
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NRC STAFF RESPONSE TO LICENSING BOARD'S CERTIFICATION OF ITS RULING u
I. INTRODUCTION At the end of a conference call which took place on March 1, 1982, the Licensing Board established to preside over the above-capcioned proceeding granted Licensees' request and certified its rul,ng to the Commission that petitioners should be allowed into the Licensees' control-rooms and near-site emergency operations facility for the purpose of observing the energency planning exercise scheduled for March 3, 1982.
The Staff, for the reasons set forth below, concludes that the Commission should not accept referral or certification of this rulingandshouldletitstand.3/
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As of this time the Licensing Board's Order concerning the action
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it has taken with regard to its ruling has not yet issued.
Therefore, the Staff will address both certification and referral of the ruling.
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t II. BACKGROUND On February 8,1982, UCS/NYPIRG, Petitioners for leave to intervene in the above-captioned proceeding, filed a motion for discovery and to permit entry upon land.5/
In its motion UCS/NYPIRG requested, inter alia, that Petitioners' representatives be permitted into the Licensees' control rooms and near-site emergency operations facility to observe the emergency planning exercise scheduled for March 3,1982. UCS/NYPIRG Hotion for Discovery And to Permit Entry Upon Land in Control of the Licensees And Interested States at 4 (February 9, 1982)(hereinafter UCS/NYPIRG Motion).
Licensees objected to Petitioners' entire motion in a response filed on ' February 25,1982.$/ The grounds for Licensees' objections were:
1)
UCS/NYPIRG's application is beyond the Board's jurisdiction, 2) the motion is premature, and 3) there is no proper basis for UCS/NYPIRG's re" quest.
S/ This motion was joined by seven other organizations who have also petitoned for leave to intervene in this proceeding. These Petitioners are:
the Westchester People's Action Coalition, Parents Concerned About Indian Point, Greater New York Council on Energy, Friends of the Earth, the New York City Audubon Society, West Branch Conservation Association, and Rockland Citizens for Safe Energy.
S/ The Staff and Petitioners agreed to a resolution of the various other portions of the motion in terms set forth in a stipulation filed with the Board on February 26, 1982.
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On February 26, 1982, the Licensing Board informed the Staff of an Order it intended to issue. The Staff in turn informed the other persons affected by the motion of the terms and conditions of the order.SI The order was confirmed by mailgram rteived on March 1,1982.
In its order the Licensing Board gave the Petitioners the right to place not more than two individuals in the control rooms and the near-site emergency operations facility (E0F) of the Indian Point facilities for the purpose of observing the scheduled emergency planning exercise. This permission was conditioned so that Petitioners would be able to see and hear the actions being taken butwouldnotbepermittedtointerfereintheconductoftheexercise.SI Upon learing of the contents of the order, Licensees sought a confer-ence call with the Board and parties to request certification of the Board's ruling to the Commission.6_/ This call was held on March 1, 1982.
l The Board heard arguments as to why access to the control rooms and E0F should be reconsidered. At the end of the call the Board let its l
ruling stand, but agreed to certify that ruling to the Commission for SI The Staff was unable to reach a representative of the State of New York.
EI The imposed conditions were:
" Observers should be positioned where they can see and hear but cannot interfere with operation. Observers may be required to stay behind barrier which permits visual and auditory observation. Observers may not speak to participants nor talk loudly enough to distract participants." Mailgram Order (February 26,1982).
6/ A preliminary call was held on February 27, 1982.
Petitioners were told by the board chairman to present their position with respect to certification to.the other parties to the proceeding, and it was agreed that another conference call would be held when all Board members could be present.
its consideration. The Licensing Board did not stay the effect of its ruling.
III. DISCUSSION A.
The Commission Should Not Accept the Licensing Board's Referral of its Ruling or Certification of the Question Posed by its Ruling 1.
The Licensing Board's Referral Should Not Be Accepted The standard for referral of a Licensing Board ruling to the Commis-sion are set forth in 10 C.F.R. 5 2.730(f) of the Commission's regulations.7/
This section states in pertinent part:
... When in the,iudgment of the presiding officer prompt decision is necessary to prevent detriment to the public interest or unusual delay or expense, the presiding officer may refer the ruling promptly to the Commission..."
Although the Staff does not agree with the the Licensing Board's ruling on USC/NYPIRG's motion, allowing this ruling to stand would neither be detri-mental to the public interest, nor cause unusual delay or expense.
7_/ In the case of a licensing proceeding requests for certification orreferralusuallygofirsttottieAppealBoardwhichhasbeen delegated the authority to deal with such matters by 10 C.F.R. 6 2.785(b)(1) of the Comission's regulations. However, it-is not clear that this proceeding is to be conducted in any aspect before the Appeal Board. The Commission has indicated that the Licensing Board shall submit its findings and recommendations directly to the Commission. Consolidated Edison Company of New York (Indian Point, Unit No. 2) and the Power Authority of the State of New York (Indian Point, Unit No. 3), CLI-81-1, 13 NRC 1, 5-6 (1981). The Commission has also indicated that it will judge for '
itself any requests by the Licensing Board to deviate from Part 2 of the Commission's regulations in conducting this proceeding. Consoli-dated Edison Co. of New York,(Indian Point, Unit No. 2) and the Power Authority of the State of New York (Indian Point, Unit No. 3),
CLI-81-23, 14 NRC 610, 611 (1981).
f It is in the public interest that this exercise should be conducted in a realistic manner to determine that the emergency plan is workable, while at the same time not interfering with the orderly and safe opera-tion of the Indian Point facilities. There is no indication that Peti-tioners will affect these goals by their mere presence in the Indian Point control rooms and EOF. Licensees have not indicated in what way they will suffer unusual delay or expense by the presence of Petitioners either in the control rooms or E0F. The Staff would prefer that non-essential persons not be present in the control room of any facility during such exercises.. It was to avoid the overcrowding of control rooms during any emergency that the requirement was placed on licensees to construct an emergency operations facility separate from the control room,10 C.F.R. Part 50, App. E,Section IV.E.8.
However, we cannot say that _ the public interest will clearly be adversely affected by the presence of Petitioners in these control rooms. Therefore, the Commission should not accept the Licensing Board's referral of its ruling on this matter.
i 2.
Certification Pursuant to 10 C.F.R. 5 2.718(c)
Should Not Be Accepted l
The Appeal Board has held t'.at in.[ order for certification to be granted at a minimum it must be shcun that referral wauld have been proper.
4 See Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2),
l ALAB-271,1NRC478,483(1975).
In addition, the Appeal Board has stated that this discretionary interlocutory review will be granted only when the
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ruling below either 1) threatened the party adversely affected by it with
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- immediate and serious irreparable impact which, as a practical matter, could not be alleviated by a later appeal, or 2) affected the basic
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! i structure of the proceeding in a pervasive or unusual manner.
Public Service Co. of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190, 1192 (1977).
The standards for certification l'
of a question from the Appeal Board to the Commission are found in 10 C.F.R. 9 2.785 V The Licensing Board's ruling in this case does not satisfy any of tnese standards.
While the presence of Petitioners in the control rooms or EOF may be inconvenient and indeed cause some overcrowding, it is not clear that any serious harm will be caused by their presence.
Licensees' claim of possible damage to the control rooms or disruption of the exercise are unfounded. The Licensing Board has placed conditions upon the presence of Petitioners which would prevent their interference in the operation i
of the plant or the progress of the exercise. The conditions include, at the option of Licensees, the placing of Petitioners behind a barrier to separate them from operating personnel. Memorandum'and Order Granting UCS/NYPIRG Motion for Discovery and Staff Motion for Approval ofStipulation)(March 1,1982). As mentioned above, the Staff does not believe that there is a need for Pe,titioners to be in the control rooms, and that the purposes of the CoInmission would be better suited if their presence were confined to the near-site Emergency Operations Facility. However, the Staff cannot say that their presence would cause the immediate, serious, irreparable harm contemplated by the Appeal Board in Marble Hill, supra.
d This Licensing Board action does not affect the basic structure of this proceeding.
Its ruling is a discovery ruling made to deal with extraordinary circumstances. The Licensing Board has not indicated that
. l such actions will be the norm rather than the exception. Therefore, this reason for certification is not controlling.
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The remaining question is whether this Commission should examine I
this Licensing Board's ruling because it involves a major or novel question of law, policy or procedure. The Staff does not believe that the Licensing Board's action in this case represents such a ques-tion.
It is a discovery ruling made to deal with a particular circum-l stance found in this proceeding. The question of whether parties should be given access to a facility for purposes of observing an emergency exercise is not a novel one. Licensing Boards have previously been faced with decisions concerning the presence of intervenors in proceedings at licensee's facilities.
Consumers Power Co. (Big Rock l
Point Nuclear Plant),. Docket No. 50-155, unpublished Licensing Board Order dated June 23, 1980; Dairyland Power Cooperatives (La Crosse i
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Boiling Water Reactor), LBP-80-2, 11 NRC 44 (1980). Therefore, the l
l Commission should not accept certification of the Licensing Board's action in this case.
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B.
If,However,theCommissionAccepisCertificationorReferral, l
the Licensing Board's Ruling Should-Remain Unchanged j
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1.
The Staff Does Not Believe that the Applicant has Made a l
Compelling Showing of Harm by the Presence of Petitioners i
in the Indian Point Control Rooms or the E0F The presence of Petitioners in the Indian Point control rooms is unnecessary. They would be able to gain adequate information with respect to how the exercise is being conducted by observation in the near-site E0F. Their presence only in that facility would also be consistent with
the Commission's purpose in requiring such a facility to be created. The E0F is the place where decision-making concerning emergency activities is to be conducted. This removes the necessity for the presence of large numbers of people in the control room in case of an emergency, and, there-fore, lessens the potential for confusion in the control room. However, the question here is whether the presence of no more than 2 of petitioner's representatives in the control rooms of the Indian Point facilities presents a safety concern warranting their exclusion.
In the Staff's view since petitioners will be escorted and subject to the customarily required security searches and practices their presence does not constitute l
an undue risk to public health and safety. We have been informed that the Licensee that approximately 500 square feet of space is avaiable within the Unit 3 control room desks and not between reactor operators and instrument panels. We have been informed that with the presence of petitioners' representatives, 19 people will be present in this 10 x 50 l
foot area. Consequently the presence of observers in this space would not interfere with safe reactor operation. Therefore, the Licensing Board's ruling in this regard should no,t be overturned.
2.
Licensee's Argument that UCS NYPIRG's Motion is Premature While Correct Should'Not be Sustained In its response to UCS/NYPIRG's motion, Licensee's argued that the motion should be denied as premature. Licensee's Answer to UCS/NYPIRG Motion for Discovery and to Permit Entry Upon Land in Control of the Licensees and Interested States at 7-9 (February 24,1982). This objection was addressed by the Licensing Board on pages 5 and 6 of its Memorandum and Order dated March 1,1982. The Staff concurs with the I
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i Licensing Board's reasoning on this argument set out in that Order.
l The Licensing Board's ruling in this regard should not be overturned.
3.
Licensee's Argument that the Commission is Forcing them to Violate Commission Regulations is not Dispositive l
Licensees next argue that the Board is causing them to violate 10 C.F.R. 6 73.55(d)(7) of the Comission's regulations by. ordering the Licensees to admit unauthorized persons to a vital area. However, that section of the regulation states that persons may be admitted to i
the control room for purposes of general familiarization or non-work related activities upon a showing of go'od cause to the Licensee.
The question really becomes does the Licensing Board have the authority to review Licensees' determination of whether good cause exists in the case of a contested proceeding.
In light of its general power to control the conduct of proceedings, and rule on disputes concerning discovery matters, such authority would appear to exist.
In fact, Licensing Boards have, in the past, reviewed a licensee's determination as to whether good cause exists for access of persons to its vital areas.
La Crosse, LBP-80-2, supra.
For these reasons Licensees' argument that the Board has exceeded it's jurisction may not be sustained.
4.
. Licensees' Request for Indemnification Should be Denied Licensees have requested the Commission to agree to idemnify them for any possible damages which might be suffered by Licensees due to the presence of Petitioners in the control rooms or at the E0F. Licensees' Certific.ation Application at 8.(March 1, 1982).
Licensees have failed to provide any basis for such a request.
In addition as a matter of policy it is unreasonable for Licensees to exrect that actions taken by L_
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the Commission or one exercising authority delegated to it by the Comis-sion should create a need for indeminification as a matter of course.
This does not appear to be a case of such an extraordinary nature as to warrant such an agreement by the Commission.
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IV. CONCLUSION For the reasons set forth above the Staff concludes:
- 1) The Commis-sion should not accept referral or certification of the Licensing Board's ruling in this case; and 2)
If the Comission accepts referral or certi-fication, the Licensing Board's ruling should be upheld.
Respectfully submitted, b
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b Janice E. tioore Counsel for NRC Staff Dated at Bethesda, liaryland this 2nd day of March, 1982 l
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UNITED STATES OF A: ERICA NUCLEAR REGULATORY CG:1:11SS10N BiFORE THE COMMISSION in the l'atter of
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C0:iSOLIDATED EDIS0N COMPANY
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Docke+ Nos. 50-247-SP 0F I:EW YORK (Indian Point Unit 2 )
50-286-SP
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POUER AUTHORITY OF THE STATE OF
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NEW YORK (Indian Point, Unit 3)
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CERTIFICATE OF SERVICE I hereby certify that copies of."NRC STAFF RESPONSE TO LICENSING BOARD'S CERTIFICATION OF ITS RULING" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regula-tory Commission's internal mail system, this 2nd day of March, 1982:
Louis J. Carter, Esq., Chairman Paul F. Colarulli, Esq.
Administrative Judge Joseph J. Levin, Jr., Esq.
Pamela S. Horowitz, Esq.
j Atomic Safety and Licensing Board 7300 City Line Avenue Charles florgan, Jr., Esq.
1 Philadelphia, PA 19151-2291 Morgan Associated, Chartered 1899 L Street, N.W.
Dr. Oscar H. Paris Washington, D.C.
20036 s
Administrative Judge Atomic Safety and Licensing Board Charles M. Pratt, Esq.
U.S. Nuclear Regulatory Commission Thomas R. Frey, Esq.
Power Authority of the State Washington, D.C.
20555
10019 s
s Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Ellyn R. Weiss, Esq.
'(.
William S. Jordan, III, Esq.
Washington, D.C.
20555
- Harmon & Ueiss i
Brent L. Brandenburg, Esq.
1725 I Street, N.W., Suite 506 Assistant General Counsel Washington, D.C.
20006 Consolidated Edison Co. of New York, Inc.
Joan Holt, Project Director 4 Irving Place
,Isdian Point Project New York, N.Y.
10003 f:ew York Public interest
.,Research Group L.
l'ayor George V. Begany 5 Seeig.an Street Village of Buchanan f;cw Yo'rk, N.Y.
10038 236 Tate Avenue Buchanan, N.Y.
10511 e
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John Gilroy, '.!estchester Coordinator e Stanley B. Klinberg t
o Indian Point Project G2neral Counsel
!!ew York Public Interest
':ew York State Energy Office Research Croup 2 P.'ockefeller State Plaza lV 240 Central Avenue Albany, N.Y.
12223 Uhite Plains, N.Y.
10606 l*a rc L. Parris, Esq.
Jeffrey M. Blum, Esq.
Eric Thorsen, Esq.
Attorney, County of Rockland I:cw York University Law School County.Hempstead Road 11 New 423 Vandertuilt Hall 40 Washingt.on Square South I:ew City, N.Y.
10956 icw York, N.Y.
10012 Geoffrey Cobb Ryan Conservation Committee Charles J. Itaikish, Esq.
Litigation Division Chairman, Director i:ew York City Audubon Society The Port Authority of t!cw York and New Jersey 71 West 23rd Street, Suite 1828 One World Trade Center New'(ork,N.Y.
10010 i:ew York, N.Y.
10048 Greater Ncw York Council on
. Ezra 1. Bialik, Esq.
Energy o
Steve Leipsiz, Esq.
c/o Dean R. Corren, Director Environmental Protection Bureau t!ew York University f:ew York State Attorney 26 Stuyyesant Street General's Office New York, N.Y.
10003 Two World Trade Center l
New York, N.Y.
10047 Honorable Richard L. Brodsky
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Member of the. County Legislature Alfred B. Del Bello Westchester County Westchester County Executive County Office Building l
White Plains, N.Y.
10601 Westchester County 4
i 148 liartine Avenue New York, N.Y.
10601 Pat Posner, Spokesperson Parents Concerned About Indian Point Andrew S. Roffe, Esq.
New York State Assembly P.O. Box 125 Albany, N.Y.
12248 Croton-on-Hudson, N.Y.
10520 Charles A. Scheiner, Renee Schwartz, Esq.
e Botein, Hays, Sklar & Herzberg Co-Chairperson Attorneys for Metropolitan Westchester People's Action Coalition, Inc.
Transportation Authority 200 Park Avenue P.O. Box 488 New York, N.Y.
10166 White Plains, N.Y.
10602-
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!!onorable Ruth liessinger
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Lorna Salzman "crber of the Council of the Mid-Atlantic Representative City of f:ew York
. Friends of the Earth, Inc.
District #4 208 West 13th Street I:ew York, N.Y.
10011 City Hall 10007 New York, N.Y.
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Alan Latnan, Esq.
- s. An,anda Potterfield, Esq.
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44 Sunset Drive P.O. Box 384 i
Croton-on-Hudson, N.Y.
10520 Village Station
- cw York, NY 10014
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-Zipporah S..Fleisher i
L West Branch Conservation Mr. Donald L. Sapir, Esq.
Association 50 East Mount Airy Road 443 Buena Vista Road Croton-on-Hudson, NY 10520 i
f:ew City, N.Y.
10956
- Mr. Samuel J. Chilk Judith Kessler, Coordinator Secretary of the Commission Rockland Citizens for Safe Energy U.S. Nuclear Regulatory Commission Washington, D. C.
20555 300 !!cw flempstead Road e
flew City, N.Y.
10956
- Leonard Bickwit, Esq.
i David H. Pikus, Esq.
General Counsel Richard F. Czaja, Esq.
U.S. Nuclear Regulatory Commission 330 Madison Avenue Washington, D. C.
20555 Icw York, N.Y.
10017 Atomic Safety and Licensing Board U.S. fluclear Regulatory Coranission Washington, D.C.
20555
- Atomic Safety and Licensing Appeal Board U.S. t!ucicar Regulatory Commission Washington, D.C.
20555
- Docketing and Service Section 4
Office of the Secretary i
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U.S. Nuclear Regulatory Commission Washington, D.C.
20555
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