ML20049H848
| ML20049H848 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 03/01/1982 |
| From: | Carter L, Paris O, Shon F Atomic Safety and Licensing Board Panel |
| To: | CONSOLIDATED EDISON CO. OF NEW YORK, INC., POWER AUTHORITY OF THE STATE OF NEW YORK (NEW YORK, UNION OF CONCERNED SCIENTISTS |
| References | |
| ISSUANCES-SP, NUDOCS 8203040317 | |
| Download: ML20049H848 (12) | |
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32 E1 -2 P ?:14 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
q* R\\tED MAR 2 M r.bs r
Pr Frederick J. Shon In the Matter of
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CONSOLIDATED EDISON COMPANY Docket Nos. 50-247-SP 0F NEW YORK
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50-286-SP (Indian Point, Unit No. 2)
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POWER AUTHORITY OF THE
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N STATE OF NEW YORK
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March 1, 1982/
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(Indian Point, Unit No. 3)
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.,3 0 MEMORANDUM AND ORDER J.A N.:
Staff Motion for Approval of Stipulation)
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(Granting UCS/NYPIRG Motion for Discovery and>s The Union of Concerned Scientists and New York Public Interest Re-search Group (UCS/NYPIRG) in a motion dated February 9,1982, requested this Board to order the Licensees, the State of New York, and the Counties of Westchester, Rocklar.d, Putnam, and Orange to permit representatives of organizations which have filed petitions to intervene in this proceeding to observe the emergency planning exercise scheduled for the ' Indian Point fa-cility on March 3, 1982.
In a telephone conversation on February 23, the Dgo) 1/
NRC Staff advised us that a meeting to discuss a stipulation-- would g
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Ine parties to the Stipulation were UCS/NYPIRG, Westchester County, and FEMA, but not the Licensees.
8203040317 820301 PDR ADOCK 05000247 O
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, be held in New York on February 24 and that the Staff would be filing its response to UCS/NYPIRG's motion on February 25.
Attached to Staff's re-sponse, which was filed after close of business on February 25, were unsigned stipulations (1) between the Staff, the Federal Emergency Manage-ment Agency (FEMA), and the petitioners, and (2) between Westchester County and petitioners.
By telephone message on February 26, Rockland County ad-vised that it would join the stipulation of Westchester County.
- Finally, elong with Staff's filing on January 25, we received Licensees' answer, dated February 24, opposing the UCS/NYPIRG motion.
We shall approve, in a later order, the aforesaid stipulations upon receiving signed copies, provided the signed copies do not differ in sub-stance from the copies we now have.
We grant herein a part of UCS/NYPIRG's motion as it applies to entry upon the property and facilities under the control of the Licensees.
We turn now to a consideration of the Licensees' objections to n.e motion.
THE OBJECTION THAT THE REQUESTED RELIEF IS BEYOND THE BOARD'S JURISDICTION Licensees argue that this Board lacks jurisdiction to entertain UCS/NYPIRG's motion on two grounds:
1.
... [A]n Atomic Safety and Licensing Board possesses only the jurisdiction delegated to it by the Commission."
- 2.
We lack jurisdiction with respect to the emergency planning s
exercise because it "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 an'd Staff." Pp. 5-6.
Licensees cite Northeast Nuclear Energy Co. (Montague Nuclear Power Station, Units 1 and 2),1 NRC 436 (1975), in which a Board held that it lacked the authority to order the staff and applicant to hold discussions pursuant to 10 CFR 2.102 near the site or, alternatively, to provide in-tervenor with verbatim transcripts of such meetings.
That Board held that its supervisory authority over staff actions derived from Sections 2.104 and 2.718 and that it lacked authority to direct the staff in the conduct of its business under Section 2.102.
To begin with, we do not view the emergency preparedness exercise which is to be conducted in the v1cinity.of the Indian Point plants on March 3,1982, and which will involve not only the Licensees and the NRC Staff, but also the Federal Emergency Preparedness Agency, the State of New York, the Counties of Westchester, Rockland, and apparently Putnam and Orange, plus various townships, munic'ipalities, and other public institu-tions and organizations, to be the same as the routine discussions carried 2/
out between staff and applicants under Section 2.102.--
Indeed, the
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Section 2.102 is clearly directed to how the Staff carries out admin-istrative duties in reviewin'g applications.
Nothing such as that is here involved.
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, success or failure of the emergency preparedness program will depend, to no small degree, on how well the general public is informed and responds. The matter can hardly be construed to be a matter merely between the Licensees and the Staff or FEMA.
We believe that our authority to entertain the UCS/NYPIRG motion is clearly established by 10 CFR 2.718(e) which describes our powers gener-ally.
But even were that not so, the Commission said, in its Memorandum and Order dated September 18, 1981, that this Board would not be bound by l
the provisions of 10 CFR Part 2 with regard to the admission and formulation of contentions which were directed toward the issues raised-by the Commission's questions on pages 9 and 10 of its Memorandum and Order l
dated January 8, 1981. Revised fn.4, p. 2.
Since questions 3 and 4 on page 10 relate to emergency planning, and since granting the UCS/NYPIRG motion will likely result in refinement and focusing of contentions relating to emergency planning, we believe that we are also acting under the explicit authority given this Board by the Commission.
Further, it would certainly seem sensible that since the Board has the power to cause the deposition of a control room employee to be taken, it likewise has the power to permit the silent observation of that employee's action during a planned exercise.
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, THE OBJECTION THAT THE MOTION IS PREMATURE Licensees object to the motion as premature on three grounds:
1.
UCS/NYPIRG is not yet admitted as a party.
2.
No contentions have been admitted to serve as a basis for discovery.
3.
10 CFR 2.741 directs that a party first seek discovery of this sort from another party.
Only after a 30-day oppor-tunity to respond has elapsed can the party seeking discovery apply to the Board for relief.
As to the last point, were this a casually-paced proceeding we would be inclined to demand strict adherence to such procedural niceties.
But the exigencies of the present case do not permit that.
Clearly a 30-day response period is impossible. The time set for the proposed drill is only a-few days off and one must strike while the iron is hot.
To allow proce-dural delicacy to frustrate the announced purpose of this hearing would be foolish, the more so where, as here, no party is seriously disadvantaged by expediting the action.
As to the specific objection that contentions have not,yet been admit-ted, it seems to the Board that the purpose of permitting discovery only after admitting contentions is to assure there will be no time and effort i
wasted in irrelevant discovery.
Here, unlike in other cases, many of the issues have been fixed in advance by the Commission itself.
Questions 3
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, and 4 at page 10 of the Commission's Order of January 8,1981, directly concern emergency planning. The discovery here sought is thus clearly relevant to a matter before this Board. And it is clear that UCS, at least, whose petition triggered the Commission's concerns in this case, is likely to be granted full party status.
In addition to explicitly delineating emergency planning in its questions on page 10, the Commission provided further indication of the importance it attached to this subject.
It said:
The Commission is concerned with both the total risk to the persons and property posed by the Indian Point plants and the risk to individuals living in the vicinity of the Indian Point site, including that resulting from the difficulty of evacuation in an emergency.
(Emphasis added.)
and ThdCommissionisalsointerestedinthecurrentstateof emergency planning in the vicinity of the Indian Point site and in future improvements in that planning as well as in resolving the specific contentions in the UCS Petition to the effect that some of our regulations are not met in one or both units.
(Emphasis added.)
P. 8.
Given the clear mandate we have with respect to investigating emer-gency planning, the idea that discovery of the type sought could be lost effort in the case at bar is clearly untenabic.
THE OBJECTION THAT UCS/NYPIRG SEEKS DISCOVERY AGAINST NON-PARTIES Licensees object that UCS/NYPIRG seeks discovery against non-parties, citing Santa Fe v. Potashnik, 83 F.R.D. 299 (E.D. La.1979) and Humphries
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, v.
Pennsylvania Railroad Co.,14 F.R.D.177 (N.D. Ohio 1953).
The short answer here is that we shall not grant UCS/NYPIRG's motion with respect to Putnam and Orange Counties.
However, unlike the facts in the cited cases, it is clear that Licensees are already admitted parties.
Further, the three agencies of the State are petitioners as interested States in this case.
If those entities were to adopt such a hair-splitting defense against cooperation with this investigation as to refuse to allow observation on the ground that they were not, strictly speaking, parties, we would be ill-disposed in our discretion to permit their further participation.
We shall expect these State agencies to cooperate to the same degree as the Licensees. We do not intend to usurp any jurisdiction ~
of the State in this matter; we mean only to control the proceeding presently before us.
THE OBJECTION THAT THERE IS NO PROPER BASIS FOR THE REQUEST Licensee alleges that the purpose of 10 CFR @ 2.741 would be distorted were we to permit this discovery, citing Belcher v. Bassett Furniture, 588 F. 904 (4th Cir.1978).
The cited portion disapproves an " unbridled inspection" of the defendants' plants.
Here, of course, no such broad permission is at issue. UCS/NYPIRG simply wishes to observe a specific limited operation, one which will occur only rarely, has obvious relevance to the case, and will simultaneously be observed by members of' the Staff and FEMA.
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. It is also clear that, contrary to Licensees' assertion at page 17 of their motion, denial of the motion would prejudice UCS/NYPIRG's case.
The opportunity' to watch an actual drill in progress might not arise again in 3/
the course of this chronologically limited inquiryJ-We acknowledge, as Licensees note, that the prin.cipal purpose of UCS/NYPIRG's attendance upon the scene may be to " disparage" what they see.
Indeed, the heart of the adversary system is the gathering of deliberately tendentious views. We would expect their perspective to be that of the jaundiced eye, but we do not see that as an argument against permitting ob-servation, nor should we put blinders on that eye, however jaundiced.
We do, however, strongly sympathize with the Licensees' desire to keep this critical operation free of anything that might constitute interfer-4/
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We shall therefore impose upon UCS/NYPIRG's observers at positions 1, 2, and 3 (page 4 of UCS/NYPIRG Motion), the following conditions:
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Tne Board has only until September of 1982 to complete its part of the investigation.
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Licensees make general references to a " burden" on them (Licensees' Answer at page 17) and to alleged circumvention of procedural safe-guards (at page 18). Licensees, however, do not aver or allege facts sufficient to support the grant to them of a protective order under Section 2.740(c).
That rule would permit protection "from annoyance, embarrassment, oppression, or undue burden or expense." Absent such allegation there appears to be no support for an interference call.
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- l..The observers may watch and listen only from a position that does not interfere with the personnel needed for the test.
(Wher2 visual and auditory observation can be accomplished from outside the 4
l actual control room, that can be required by Licensees, FEMA, or Staff.)
2.
The observers will not ask questions, ma'e any loud remarks, record other than by taking notes, nor take any photographs while the l
i test is in progress.
3.
The observers are not, of course, exempted from the custom-arily required security searches and practices normally attendant on entering these areas.
I Needless to say, Licensees' apprehension lest every petitioner and his/her lawyer be allowed to atteid is also reasonable. Two observers means only two individuals.
RULING We therefore rule as follows on the UCS/NYPIRG Motion at pages 4-5 with regard to the presence of observers at the numbered positions:
Positions 1-3.
UCS/NYPIRG may station two observers at each of the three locations, positioning them where they can see and hear, but cannot interfere with, the operation.
In particular:
.. 1.
At the option of the Licensees, the observers may be required to stay behind some line or barrier in a manner which permits visual and auditory observation of the general area.
2.
The observers shall not ask questions, make any loud re-marks, record other than by taking notes, nor take photo-graphs while the test is in progress.
3.
The observers are not exempt from the customarily required security searches and procedures normally attendant upon entry into the area.
Position 4.
We expect the State of New York to be as cooperative in this matter as the Licensees by allowing observers under conditions similar tothoseset{orthfortheLicensees.
We may take the State's cooperation into consideration when ruling on the participation of the several State agencies who have petitioned to enter this case.
Position 5.
We do not know what agency is in charge of the named Cen-ter, nor have UCS/NYPIRG seen fit to enlighten us.
Under the circumstances we cannot rule unless Position 5 is under the aegis of the State; if it is under State supervision, then the ruling given with respect to Position 4 shall apply to Position 5.
Positions 6 and 7.
We understand that the unsigned stipulatio'is men-tioned above have been arrived at with the two counties involved.
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. Positions 8 and 9.
We would appreciate cooperation from Putnam and Orange Counties along the lines set forth for the Licensees.
Positions 10-15.
We understand that the unsigned stipulation, l
mentioned above, will permit the desired observation.
Page 5, items 1-5.
We understand that the unsigned stipulation, mentioned above, will provide for UCS/NYPIRG representation as desired.
ORDER Upon consideration of the foregoing and of the entire record in this matter, it is t is first day of March 1982,
'0RDERED 1.
That Consolidated Edison Company of New York and the Power Authority of the State of New York shall permit two representatives appointed by UCS/NYPIRG to observe the emergency planning ' exercises at each of the sites under Licensees' control, subject to the conditions we have outlined herein.
2.
Observers shall comply with the conditions which we have imposed herein.
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. 3.
The State of New York should afford the same opportunity to UCS/NYPIRG observers at the sites it controls.
4.
The motion for approval of stipulations will be granted when signed copies of the stipulations are filed, provided that the signed copies do not differ substantially from the unsigned copies.
ATOMIC SAFETY AND LICENSING BOARD S
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Oscar H. Paris ADMINISTRATIVE JUDGE Frederick J. S n ADMINISTRATIV JU GE A
TIA50 Louis J A.'rtfr, Chairman ADMINISTRATIVE JUDGE Bethesda, Maryland March 1,1982 I