ML20052F314
| ML20052F314 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 05/10/1982 |
| From: | Brandenburg B, Morgan C CONSOLIDATED EDISON CO. OF NEW YORK, INC., MORGAN ASSOCIATES, POWER AUTHORITY OF THE STATE OF NEW YORK (NEW YORK |
| To: | NRC COMMISSION (OCM) |
| References | |
| ISSUANCES-SP, NUDOCS 8205120340 | |
| Download: ML20052F314 (26) | |
Text
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-e-UNITED STATES OF AMERICA ,,
g .tjg NUCLEAR REGULATORY COMMISSION ,,2 0 ,i d, l COMMISSIONERS: ,-
m Nunzio J. Palladino, Chairman c)
Victor Gilinsky D John F. Ahearne // nECEWEU Thomas M. Roberts -
4 T MAY l'11982" C
_________________x cyjgyy? n-Ce s p&
In the Matter of : /
Co D .&
CONSOLIDATED EDISON COMPANY OF :
NEW YORK, INC. (Indian Point, Docket Nos. 50-247-SP Unit No. 2) : 50-286-SP POWER AUTIlORITY OF THE STATE OF : May 10, 1982 NEW YORK, (Indian Point, Unit No. 3) :
x LICENSEES' PETITION FOR DIRECTED CERTIFICATION PURSUANT TO 10 CFR S 2.718(i) AND FOR WAIVER OF 10 CFR S 9.103 .
ATTORNEYS FILING T!!IS DOCUMENT:
Charles Morgan, Jr. Brent L. Brandenburg MORGAN ASSOCIATES CHARTERED CONSOLIDATED EDISON COMPANY 1899 L Street, N.W. OF NEW YORK, INC.
Washington, D.C. 20036 4 Irving Place (202) 466-7000 New York, New York 10003 (212) 460-4333 g503 5
8205120340 820510
. i TABLE OF CONTENTS PAGE I. THE PETITION 1 II. INTRODUCTORY STATEMENT 2 A. Certification Questions 2 B. Background 3 III. COMMISSION STANDARDS FOR DIRECTED CERTIFICATION 8 IV. THE LICENSEES' PETITION MEETS THE COMMISSION' S STANDARDS FOR DIRECTED CERTIFICATION 9 i
V. LICENSEES SHOULD BE GRANTED A WAIVER OF THE PROVISIONS OF 10 CFR 59.103 FOR THE PURPOSE OF FILING BRIEFS ON THE CERTIFIED QUESTIONS 18 l
VI. CONCLUSION 20 l
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:
Nunzio J. Palladino, Chairman Victor Gilinsky John F. Ahearne Thomas M. Roberts
_____________________________----------X In the Matter of :
Docket Nos. 50-247-SP CONSOLIDATED EDISON COMPANY OF NEW : 50-286-SP YORK INC. (Indian Point, Unit No. 2)
POWER AUTHORITY OF THE STATE OF NEW YORK (Indian Point, Unit No. 3) :
May 10, 1982
X LICENSEES' PETITION FOR DIRECTED CERTIFICATION PURSUANT TO 10 CFR S 2.718(1)
AND FOR WAIVER OF 10 CFR S 9.103 I. THE PETITION Consolidated Edison Company of New York, Inc. and the Power Authority of the State of New York, Licensees of Indian Point Units No. 2 & 3, respectively, (the " Licensees") hereby apply to the Commission for directed certification of several questions related to an April 23, 1982 pre-hearing order issued by the Atomic Safety and Licensing Board (the "Foard") herein.
The order sets forth the Board's formulation of contentions and the basis upon which evidence may be admitted, and establishes a schedule for further proceedings.
M II. INTRODUCTORY STATEMENT Licensees submit that the Board's April 23 order is incompatible in a number of important respects with the Commis-sion's January 8, 1981 and September 18, 1981 Orders establishing this unique special proceeding. In direct contravention of the Commission's orders, the Board has created a free-roving, unbound-ed inquiry which far exceeds the Commission's mandate to address seven specific questions, ignores contention practice, challenges the validity of Commission regulations, and disregards the Commis-sion's explicit instructions regarding the conduct of the proceed-ing. Unless the Commission immediately undertakes to require Board adherence to the Commission's purpose as set forth in its January 8 and September 18 Orders, the result can only be an administrative free-for-all .
A. Certification Questions The grounds for the Commission to direct certification pursuant to 10 CFR S2.718(i) are set forth below. Licensees seek certification of the following questions:
l (1) Whether the Commission intended in footnote 4 of its September 18 Order to permit intervenors to introduce contentions without having to pro-vido a specific f actual basis therefor and with-
! out having to justify the admission of late-filed contentions.
(2) Whether the Commission intended in footnote 4 of l its September 18 Order that contentions challeng-
- ing existing Commission regulations could be raised without meeting the requirements of 10 CFR S2.758.
i (3) Whether the Board failed to comply with the intent of footnote 5 of the Commission's September 18 Order 1
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t 0 by permitting intervenors to file testimony descri-bing release consequences without "a discussion of the probability of such a release for the specific Indian Point plants."
(4) Whether the Board failed to comply with the instruc-tions in Commission Question 2 by admitting conten-tions suggesting specific additional safety measures without requiring a preliminary showing by the sponsor-ing intervenor that the suggested measures meet the Question's two-pronged test, and by failing to make the explicit Board findings required by the Commission for each suggested measure.
B. Background This proceeding was initiated by Commission Orders of January 8 and September 18, 1981, which empaneled the Board to conduct hdarings on seven questions enumerated by the Commission. In its Orders, the Commission emphasized that:
- The Commission's primary concern is the extent to which the population around Indian Point affects the risk posed by Indian Point as compared to the spectrum of risks posed by other nuclear plants. (January 8 Order at 7, emphasis supplied).
The Commission stated its intent "to compare Indian Point to the spectrum of risks from other nuclear power plants," and based upon that comparison, to determine whether additional safety measures should be required or some other action taken.* The Board was requested to hear evidence on the Commission's specific questions and to make recommendations to the Commission "no later than" September 18, 1982** in
- January 8 Order at pp. 7-9.
- September 18 Order at 5.
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1 order.that the Commission could "make its decision within a '
s reasonable _ period of time."*
Because of the particular time constraints which ,
it applied to the proceedings, and because of their precise focus, the Commission directed that special procedures be i
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folloped in the proceeding. The Commission directed the Board to employ higher standards for the admission of contentions than would be applied 'in licensing proceedings. The, Board was Empowered only to accept\ and formulate . . .
contentions which seem likely to be important to reso1ving the Commission',s questions . . . .
The above language was added to the January 8 Order.
t by the September 18 Order.** In addition to this change, two other signif'icant changes were made to the Commission's earlier order. F1 st, Question 1 of the January 8 Order was amended by including 3 reference to the' Commission's Interim P511cy on
" Nuclear Power Plant Accidents under the National Environmental Policy Act", and by adding footnote 5 to the January 8 Order which provides inter alia, that "... a description of the release scenario must include a discussion of the probability of such a release for the specific Indian point plants..."
Second, a two-pronged test was added to Question 2 with regard
- January 8 Order at 7.
- September 18 Order at 2.
to the admission of contentions dealing with Intervenor pro-posals for additional agecific safety measures. Under this test, the Board was to admit contentions which seem likely to be important to resolving whether (a) there exists a significant risk to public health and safety notwithstanding the Director's measures, and (b) the additional proposed measures would result in a significanc reduction in that risk. These changes to the earlier order, together with the Commission's directive that the Board complete its work by September 18, 1982, all bespeak a Commission intent to maintain a narrow focus in this proceed-ing.
The Commission's September 18 Order (p. 2) provided that except with respect to contentions and the order of pre-sentation, its regular Rules of Practice, 10 CFR Part 2, "will control." The Commission thus did not disturb the normal prohi-bition against challenges to the validity of Commission regula-tions set forth in 10 CFR S 2.758, although Question 2 of its September 18 order did permit the proposal of additional specific safety features going beyond present Commission requirements j upon satisfaction of tha two specific pre-conditions.
By order issued November 13, 1981 the Board directed that contentions be filed prior to the first special prehea-ing conference on December 2, 1981. At that conference, in the course of discussing the Commission's directives regarding contention practice for the hearings, the Board stated that:
If you simply read the revised footnote 4 which the Commission had in their order of September 18, it is not clear what the Com-mission meant. (Tr. at 100; emphasis supplied)*
Numerous contentions were submitted by prospective intervenors prior to the Board's December 2 deadline. Both Licensees and the NRC Staff filed extensive memoranda on December 31, 1981 and February 11, 1982 contending, inter alia, that many of the proposed contentions did not comply with the provisions of the Commission's January 8 and September 18 Orders regarding the admission'of contentions and the consideration of additional specific safety measures. The Licensees and the Staff also argued that many of the proposed contentions constituted an impermissible attack on NRC regula-tions, and that many were vague and lacked the underlying specific factual basis required by NRC regulations governing contentions.
On April 9, 1982 the Board preliminarily ruled upon proposed contentions, and announced that final rulings wo'uld be made following the second special prehearing conference scheduled for April 13 and 14, 1982. The Board's only discus-cussion of the Staf f's and the Licensees' extensive and detailed memoranda on contentions is as follows:
- The Board went on to interpret the Commission's September 18 Order based upon its understanding of an unspecified trans-cript of Commission's discussions, Tr. at 101. See pp. 18-19 infra.
We have carefully considered the arguments of Licensees and the Staff to the effect that many of the contentions were unacceptable. We did not agree with many of those objections. (April 9 order at 15)
The Board took the position that the Commission order permitted it to entertain challenges to existing Commission regulations. For example, with regard to a con-tention which alleged that the 10 mile plume exposure EPZ should be substantially expanded, the Board ruled:
Staff has objected to any contention of this sort as an unacceptab'le challenge to NRC Regulations. We do not read 10 CFR S 50.47 and Appendix E as requiring strict adherence to the 10-mile radius. Further, we believe that this is exactly the sort of contention the Commis-sion intended us to accept under revised footnote 4 of its September 8, 1981 Memorandum and Order, when it said,
"[T]he Board will not be bound by the provisions of 10 C.F.R. Part 2 with regard to the admission and formula-tion of other contentions." (April 9 order at 10, n.4)
At the second special prehearing conference on April 13 and 14, the Staff and Licensees argued that the Board's preliminary formulation of contentions suf fered from the same defects as the Intervenors' contentions on which the Board's issues are based.
On April 23, 1982 the Board issued its order for-mulating the contentions and setting a schedule for the hearings. In response to the Staff and Licensees' objections that the contentions in the April 9 order lacked specific factual basis, the April 23 order stated that:
We have deliberately avoided specifying detailed factual bases in our formulation of contentions because this is an investi-gative proceeding.*
In addition, the Board again referred to footnote 4 of the Commission's January 8 and September 18 orders as per-mitting it to accept challenges to Commission regulations.**
The Board's Contentions 2.1 and 2.2 include eight safety mea-sures which had been proposed by intervenors. The contentions proposing these safety measures were admitted without any showing in the record by the sponsoring intervenors, or any reasoned explanation by the Board itself, that the requ'irements of Commission Question 2 with regard to proposed safety measures had been complied with.
III. COMMISSION STANDARDS FOR DIRECTED CERTIFICATION Commission Rules of Practice, 10 CFR S 2.718(i),
expressly provide that a presiding of ficer may certify questions to the Commission "either in his discretion or on direction of l
the Commission."*** While there is a general Commission policy l
disfavoring interlocutory review [(10 CFR S2.730(f)], the Appeal Board has on many occasions stated that discretionary i
- April 23 order at 2.
In addition to stating that it did not feel compelled to provide detailed f actual bases for the issues it had formulated the Board's April 23 order invited intervenors i to " submit such evidence as they deem relevant to support the contentions and may submit such other evidence as they deem necessary to answer the Commission's Questions."
( April 23 order at 21) i ** Id. at 12, n.2 i
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- See Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-271, 1 NRC 478, 482 (1975).
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interlocutory review pursuant to S 2.718(i) will be granted where the ruling below either threatens the adversely af fected party with immediate and serious irreparable impact which, as a practical matter, cannot be alleviated by a later appeal, or which af fects the structure of the proceeding in a perva-sive or unusual manner.*
In addition, the Commission has on many occasions emphasized its " inherent supervisory authority over the conduct of adjudicatory proceedings" before the agency, " including the authority to step in and rule upon the admissibility of a contention before a Licensing Board."** In this regard, the Commission has stated:
[I]n the interest of the orderly resolution of disputes, there is every reason why the Commission should be empowered to step into a proceeding and provide guidance on important issues of law or policy.***
IV. THE LICENSEES' PETITION MEETS THE COMMISSION'S STANDARDS FOR DIRECTED CERTIFICATION The April 23 order which is the subject of the instant petition presents a compelling case for interlocutory review by
- Public Service Company of Indiana (Marble Hill Units 1 and 2), ALAB-405, 5 NRC 1190, 1192 (1977); Puget Sound Power and Light Company (Skagit Nuclear Power Project, Units 1 and 2), ALAB-572, 10 NRC 693, 694 (1979);
Public Service Electric and Gas Company (Salem Nuclear Generating Station, Unit 1), ALAB-588, 11 NRC 533, 534 (1980); Houston Lighting and Power Company ( Allens Creek Nuclear Generating Station, Unit No. 1), ALAB-635, 13 NRC 309, 310 (1981).
- Footnote on following page.
- Footnote on following page.
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the Commission. It cannot be seriously disputed that the course which the Board has charted in its April 23 order "affects the structure of a proceeding in a pervasive or unusual manner."
Licensees' basic claim is that the Board has defined a roving, free-form proceeding which is wholly inconsistent with the Commission's express desire for a focused proceeding in which the " primary concern" is how the Indian Point population factor affects numerical risk calculatiods.
Since the Commission has itself initiated the proceed-ing and defined its scope, and because the controversy regarding the Commission's intentions regarding that scope can thus be put to rest solely by the Commission, the proposed certified questions call for the prompt policy guidance that the Commission has made t
- (Footnote from previous page) t United States Energy Research and Development Administration (Clinch River Breeder Reactor Plant), CLI-76-13, 4 NRC 67, 75-76 (1976); see also Public Service Company of New Hampshire (Seabrook Station Units 1 and 2), CLI-77-8, 5 NRC 503, 516-517 (1977).
- (Footnote from previous page) l Id. As a general rule, S 2.718(i) certification autho-rIty is invoked only after a Licensing Board has been afforded at least a reasonable opportunity to decide I the question sought to be certified. Toledo Edison l Company (Davis-Besse Nuclear Power Station, Unit 1),
ALAB-297, 2 NRC 727, 729 (1975). In the instant case, the Board has twice had occasion to consider Licensees' -
arguments that it has misconstrued the intention of the Commission in initiating this proceeding: first in its April 9 order, in which it rejected (without comment) the Staf f's cnd Licensees' arguments made in contentions briefs, and again in its April 23 order, in which it rejected renewed arguments made at the April 13-14 second pre-hearing conference.
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clear it would provide in the furtherance of "the orderly solution of disputes" such as this. Clinch River, supra; Seabrook, supra.
The first two questions which the Licensees seek to have reviewed relate specifically to the Commission's intention in footnote 4 of the September 18 order. In that footnote, the Com-mission provided that contentions based upon the original UCS petition alleging that Commission regulations are not met will be accepted "if they meet the requirements of 10 CFR Part 2 without regard to whether they fall within the scope of the Commission's seven questions." (September 18 Order at 2; emphasis supplied.)
The Commission went on to state that:
[T]he Board will not be bound by the provisions of 10 CFR
) Part 2 with regard to the admission and formulation of other contentions. In granting this discretion to the Board, the Commission emphasizes that its purpose is to insure that the Board is empowered only to accept and f ormulate , after consultation with the parties, the i issues which seem likely to be important to resolving the Commission's questions . . . .(Id.)
l The above language has fueled a continuing controver-sy in this proceeding among the Board and parties regarding the Commission's intent in relieving the Board of the obligation to adhere to the Rules of Practice in certain limited respects.
i Instead of carrying out the careful screening process called l
for by the above-quoted language, by which the Board was directed to apply higher standards of admissibility for conten-tions than would occur in a licensing proceeding, the Board has instead interpreted that language as a directive to:
- 1. relieve potential intervenors of the obligation to
provide a detailed factual basis for each contention proferred as an issue;*
- 2. permit the amendment of contentions and raising of new issues by intervenors without having to justify such late amendment pursuant to the five factors of 10 CFR S 2.714(a)(1);**
- 3. permit intervenors to file direct testimony not only to support their contentions, but also to discuss j
any other matters which are responsive to the Commis-sion's questions.***
In this regard , the Board has ruled essentially that the Staff and licensees must await discovery in order to learn the basis for proffered contentions. See, e.g., Tr. 605. Further, the Licensing Board stated, in its April 23 Order (p.2) that it would not specify de-tailed f actual bases for each issue because by doing so it would be " imposing inflexible legal standards."
Iloweve r , as is clear from 10 CFR S 2.714, the licensees are entitled, at the pleading stage, to learn the basis for each contention, stated with reasonable specificity.
- The April 23 order admitted a number of new contentions which the Board formulated based upon oral statements made at the second special pre-hearing conference on April 13 and 14. Admitted as new contentions by the April 23 Orders were verbal assertions, unaccompanied by any factual basis, that a complete review of the con-struction and operation of both plants should be under-taken (Contention 2.2 (d)] and that current emergency planning brochures and other means of informing the public do not meet the needs of the deaf, blind and those too young to understand instructions (Contention 4.7).
- April 23 Order at p. 21.
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4 entertain direct challenges to existing Commission regulations with regard to the size of the plume exposure EPZ* without requiring compliance with 10 CFR S2.758; and
- 5. entertain direct challenges to emergency planning regulations by requiring litigation of a suggestion that emergency planning may not proceed until a " max-imum acceptable level of radiation exposure for the public" has been established, without requiring com-pliance with 10 CFR S2.758.**
The Board actions detailed above have demonstrably "af fected the basic structure of the proceeding in a pervasive
. . . manner", Marble Hill, supra. Those actions have trans-formed the narrowly focused inquiry contemplated by the Commis-sion into a wide-ranging, freewheeling discussion of a wide variety of issues, some of which would be outside the permis-sible bounds of even an initial licensing case. Thus, the questions for which Licensees seek prompt review by the Commis-sion are (as the Appeal Board stated in taking sua sponte review of one licensing board's interlocutory order) " central to charting the future course of the proceeding ....
April 9 Order at p. 10, n. 4; Contention 4.1 and subsumed intervenor contentions, April 23 Order, at pp. 12-13.
- Contention 4.6, April 23 Order, at p. 16.
- Houston Lighting and Power Company (Allens Creek Unit 1),
ALAB-565, 10 NRC 521 (1978).
Further, it is particularly important that the Commis-sion exercise its inherent supervisory authority in the present circumstances since the Board itself has conceded its inability to discern the Commission's intention regarding footnote 4 of the September 18 Order without resorting to review and reliance on transcripts of open meetings held by the Commission to discuss that Order.*
With regard to the Licensees' third question proposal for or directed certification, the Commission was very explicit in footnote 5 of the September 18 Order in instructing the Licensing Board as to the type of testimony it was to entertain in this proceeding in response to Commission Question 1.
After emphasizing that the risk associated with a release scenario was necessarily a product of both the probability and consequences of a given release, the Commission concluded:
Thus, a description of a release scenario must in-clude a discussion of the probability of such a release for the specific Indian Point plants.
(September 18 Order at 3; emphasis supplied).
Despite this very clear expression of the Commission's in-tention that testimony was to address both aspects of the risk equation, the Board has already announced an intention to permit Intervenors to file testimony solely dealing with accident consequences, on the theory that the Board "might accept (one Intervenor's] analyses of consequences and somebody else's analysis of probability." (Tr. 858). However, as the Commission See p. 5-6, supra.
has implicitly recognized by its admor ition in footnote 5, such an approach results in an unrealistic and disjointed discussion of any given release scenario because the probabilities of each of the multitude of occurrences in an event tree must be analyzed together with the consequences of each of those events for the specific Indian Point plant design in order to have a meaningful dialogue concerning the entire release scenario. One cannot divorce the discussion of either aspect of the risk equation from the other without rendering the outcome meaningless.
Thus, the determination by the Board to permit evidence to be advanced solely relating to accident consequences can only have the effect of cluttering the record in this proceeding with material which will confuse rather than clarify the issues which the Commission has asked the Board to consider.
Clearly, for the above reasons, the broadening of the scope of permissible evidence beyond what was intended by the Commission cannot fail to have a pervasive effect on the structure of the proceeding. Marble Hill, supra. Further, since a Commission policy decision is responsible for the initiation of this proceeding, there could be no more appro-priate time for the Commission to step into this proceeding to provide prompt policy guidance in the exercise of its
" inherent supervisory authority". Clinch River, supra; Seabrook, supra.
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Regarding the Licensees' fourth question proposed for directed certification, Commission Question 2 permits the sug-gestion of additional safety measures beyond those identified in the Director of Nuclear Reactor Regulation's February 11, 1980 Confirmatory Orders to Licensees. However, the Commission clearly required, prior to admission of such issues, an examina-tion and finding by the Licensing Board that the suggestion of such additional safety measures is likely to be important to resolving whether (a) there exits a significant risk to public health and safety, notwithstanding the Director's measures, and (b) the additional measures would result in a significant reduction in that risk.
In issuing its April 23 order, the Board accepted for litigation in this proceeding contentions proposing eight add i-1 tional safety measures, ranging f rom a complete reexamination of both plants to discover flaws resulting from poor quality control in construction and operation, to a double containment for the purpose of mitigating overpressurization accidents.
l Yet the Board did not require any showing by the sponsoring intervenors, nor did itself explicitly examine whether
- the two pre-conditions to litigation of such issues had been met. When the Licensees objected to the failure of the Board to follow the Commission's clear directive regarding these preconditions, the Licensees were rebuffed with the terre assertion that the Board's formulation of the issues with respect to the additional measures was intended to subsume 16 -
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the two pre-conditions set forth by thc Commission (Tr. 617).*
Thus, there is no Board analysis in the April 9 or April 23 Orders regarding whether the pre-conditions have been met for any or all of the additional measures suggested by the Interve-nors. Nor, as a reading of the discussion at the April 13 pre-hearing conference demonstrates, was any reasoned analysis of the two pre-conditions made by the Board on that occasion for each (or any) suggested addtional measure.
The result of the Board's failure to require even the most preliminary showing that the Commission's two-pronged test is satisfied for each additional measure suggested is that the possible issues arising under Commission Question 2 are limited only by the vivid imaginations of the Intervenors.
In this regard, the failure of the Licensing Board to articulate in reasonable detail the basis for its rejection of Staff and Licensees' contention arguments violates a cardinal principle of agency decision-making which has previously been emphasized several times by the Appeal Board:
... [W]e deem it to be the general duty of licensing boards to insure that initial decisions and miscel-laneous memoranda and orders contain a sufficient exposition of any ruling on a contested issue of law or fact to enable the partieu, and this Board on its own. review readily to apprehend the foundation for the ruling. Compliance with this general duty is not a mere procedural nicety, but is a necessity if we are to carry out efficiently our appellate review responsibility.
Northern States Power Company (Prairie Island Nuclear Generating Station, Units 1 and 2), ALAB-104, 6 AEC 179 (1973); see also Pacific Gas and Electric Company
( Diablo Canyon Nuclear Power Plant, Units 1 and 2),
ALAB-504, 8 NRC 406 (1978).
The Board's disregard of this Commission-imposed obligation will certainly have a pervasive effect on the structure of the entire proceeding, Marble Hill, supra, since it has the effect of substantially broadening the scope of permissible issaes raised in the case.
V. LICENSEES SHOULD BE GRANTED A WAIVER OF THE PROVISIONS OF 10 CFR S 9.103 FOR THE PURPOSE OF FILING BRIEFS ON THE CERTIFIED OUESTIONS In connection'with their petition for directed certifi-cation, the Licensees request relief from the provisions of 10 CFR S 9.103, which ordinarily prohibits the citation of Commis-sion transcripts.* Here, reference to Commission transcripts leading up to the January and September 18, 1981 Orders are essential to a complete understanding of Commission intentions regarding this unique proceeding.
The Commission has previously granted relief from S 9.103 and Licensees submit that the " unusual factual cir-cumstances" present in this proceeding require reference to transcripts of open Commission meetings during which the Com-mission's intentions regarding this proceeding were formulated 10 CFR S 9.103 provides, in pertinent part, that:
Statements of views or expressions of opinion made by Commissioners or NRC employees at open meetings are not intended to represent final determinations or beliefs. Such statements may not be pleaded, cited or relied upon before the Commission or in any proceeding under Part 2 of these regulations (10 CFR Part 2) except as the Commission may direct.
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and discussed. See, Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), CLI-79-17, 9 NRC 68 0 (197 9) ;
Toledo Edison Company (Davis-Besse Nuclear Power Station, Unit 1),
CCH Nuclear Regulation Reporter Transfer Binder, 130, 402 (1979).
Un1.ike most Commission proceedings where the types of issues appropriate for consideration are delineated by either statute, regulation or Appeal Board and Commission precedent, this special proceeding is the product of numerous Commission deliberations, memorialized in two orders. Certain points which we believe are necessary to an accurate interpretation of the two Commission orders can only be made by reference to the tran-scripts of the open meetings which the Commission convened prior to the issuance of those orders. Licensees believe that an examination of the transcripts of these Commission meetings demonstrates that the Board has far exceeded the authority which the Commission intended it to exercise. However, without per-mission to reference them as an indication of Commission intent, the only available avenue for clarification of the Commission's January 8 and September 18, 1981 directives will be lost.*
- The relief requested by Licensees is particularly important in this proceeding because the Board has apparently imposed a double standard regarding S 9.103. Specifically, although cautioning Licensees not to reference or cite Commission transcripts discussing the scope of this proceeding (see, e.g. April 23 Order at p. 12), the Board obviously believes itself entitled to review and rely on the same transcripts in determining whether to allow certain contentions. The Board candidly referred to its review of those transcripts at the December 2, 1981 prehearing conference (Tr. 99, 101) as a basis for its interpretation of the Commission's intent. In pursuing certification of the proposed ques-tions to the Commission, Licensees should be afforded the same opportunity.
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CONCLUSION Because of " exceptional circumstances which warrant the extraordinary involvement of the Commission"* as set forth above, the Licensees urge the Commission to issue an order:
1 (1) Directing certification of the questions set forth above to the Commission for resolu- l tion; (2) Granting the Licensees a waiver from the provi-sions of 10 CFR S 9.103 for the purposes of filing briefs regarding the certified issues; and (3) Establishing an expedited briefing schedule to resolve promptly the issues raised by this peti-tion, should the Commission determine that brief-ing is necessary.**
Per 7sylvania Power and Light Company (Susquehanna Steam Electric Station, Units 1 and 2) CLI-80-17; 11 MRC 678, 679 (1980).
Such an expedited schedule is necessary in order that the issues presented may be resolved prior to the filing of testimony in this proceeding.
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i Respectfully submitted, kA . )T l Br'ent L.' Brandenburg Charles M6rydh',' Jr.
Paul 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. 20036 Unit 2 (202) 466-7000 4 Irving Place New York, New York 10003 (212) 460-4333 Thomas Frey General Counsel Charles Pratt Of Counsel, Assistant General Counsel Thomas J. Farrelly Stephen M. Sohinki 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 6
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: New York, New York May 10, 1982 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:
Nunzio J. Palladino, Chairman Victor Gilinsky John F. Ahearne Thomas M. Roberts
x In the Matter of :
CONSOLIDATED EDISON COMPANY OF :
NEW YORK, INC. (Indian Point, Docket Nos. 50-247-SP Unit No. 2) : 50-286-SP POWER AUTHORITY OF THE STATE OF : May 10, 1982 NEW YORK, (Indian Point, Unit No. 3) :
x CERTIFICATE OF SERVICE I certify that I have served copies of " Licensees '
Petition for Directed Certification Pursuant to 10 CFR S 2.718(i) and for Waiver of 10 CFR S 9.103" on the following parties by first class mail, postage prepaid, this 10th day of May, 1982.
Docketing and Service Branch Dr. Oscar H. Paris Office of the Secretary Administrative Judge U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Board Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Louis J. Carter, Esq., Chairman Washington, D.C. 20555 Administrative Judge Atomic Safety and Licensing Mr. Frederick J. Shon Board Administrative Judge 7300 City Line Aranue - Suite 120 Atomic Safety and Licensing Philadelphia, Pennsylvania 19151 Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555
l Janice Moore, Esq. Charles J. Maikish, Esq.
Counsel for NRC Staff Litigation Division Office of the Executive The Port Authority of Legal Director New York and New Tersey U.S. Nuclear Regulatory One World Trade Center Commission New York, N.Y. 10048 Washington, D.C. 20555 Ezra I.Bialik, Esq.
Paul F. Colarulli, Esq. Steve Leipsiz, Esq.
Joseph J. Levin, Jr., Esq. Environmental Protection Bureau Pamela S. Horowitz, Esq. New York State Attorney Charles Morgan, Jr., Esq. General's Office Morgan Associated, Chartered Two World Trade Center 1899 L Street, N.W. New York, Nc7. 10047 Washington, D.C. 20036 Alfred B. Del Bello Charles M. Pratt, Esq. Westchester County Executive Thomas R. Frey, Esq. Westchester County Power Authority of the 148 Martine Avenue State of New York New York, N.Y. 10601 10 Columbus Circle New York, N.Y. 10019 Andrew S. Roffe, Esq.
New York State Assembly Ellyn R. Weiss, Esq. Albany, N.Y. 12248
- William S. Jordan, III, Esq.
Harmon & Weiss Renee Schwartz, Esq.
1725 I Street. N.W., Suite 506 Betein, Hays, Sklar & Herzberg Washington, D.C. 20006 '
Attorneys for Metropolitan Transportation Authority Joan Holt, Project Director 200 Park Avenue Indian Point Project New York, N.Y. 10166 New York Public Interest Research Group Stanley B. Klimberg 5 Beekman Street General Counsel New York, N.Y. 10038 New York State Energy Office 2 Rockefeller State Plaza John Gilroy, Westchester Albany, N.Y. 12223 Coordinator Indian Point Project Honorable Ruth Messinger New York Public Interest Member of the Council of the Research Group City of New York 240 Central Avenue District #4 White Plains, New York 10606 City Hall New York, N.Y. 10007 Jeffrey M. Blum New York University Law School Marc L. Parris, Esq.
423 Vanderbilt Hall County Attorney Washington Square South County of Rockland New York, N.Y. 10012 11 New Hempstead Road New City, N.Y. 10010
e Geoffrey Cobb Ryan Alan Latman, Esq.
Conservation Committee 44 Sunset Drive Chairman, Director Croton-on-Hudson, N.Y. 10520 New York City Audubon Society 71 W. 23rd Street, Suite 1828 Lorna Salzman New York, N.Y. 10010 Mid-Atlantic Representative Friends of the Earth, Inc.
Greater New York Council on Energy 208 West 13th Street c/o Dean R. Corren, Director New York, N.Y. 10011 New York University 26 Stuyvesant Street Zipporah S. Fleisher New York, N.Y. 10003 West Branch Conservation Association Atomic Safety and Licensing 443 Buena Vista Road Board Panel New City, N.Y. 10956 U.S. Nuclear Regulatory Commission Mayor George V. Begany Washington, D.C. 20555 Village of Buchanan 236 Tate Avenue Atomic Safety and Licensing Buchanan, N.Y. 10511 Appeal Board Panel U.S. Nuclear Regulatory Judith Kessler, Coordinator Commission Rockland Citizens for Safe Washington, D.C. 20555 Energy 300 New Hempstead Road Richard L. Brodsky New City, N.Y. 10956 Member of the County Legislature Westchester, County David H. Pikus, Esq.
County Office Building Richard F. Czaja, Esq.
White Plains, N.Y. 10601 330 Madison Avenue New York, N.Y. 10017 Pat Posner, Spokesman Parents Concerned About Amanda Potterfield,Esq.
Indian Point Box 384 P.O. Box 125 Village Station Croton-on-Hudson, N.Y. 10520 New York, New York 10038 Charles A. Scheiner, Co-Chairperson Westchester People 's Action Coalition, Inc.
P.O. Box 488 White Plains, N.Y. 10602 Dated: May 10, 1982 New York, New York / _
/ 6TET/ lien M. SOHlNKI
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