ML20053D097
| ML20053D097 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 06/01/1982 |
| From: | Johari Moore NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC COMMISSION (OCM) |
| References | |
| ISSUANCES-SP, NUDOCS 8206040076 | |
| Download: ML20053D097 (32) | |
Text
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of i
CONSOLIDATED EDISON COMPANY OF Docket Nos. 50-247-SP NEW YORK (Indian Point, Unit 2) 50-286-SP POWER AUTHORITY OF THE STATE OF
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NEW YORK (Indian Point, Unit 3)
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NRC STAFF RESPONSE TO SUPPORT OF LICENSEES' REQUEST FOR CERTIFICATION AND FOR WAIVER OF 10 C.F.R. 6 9.103 Janice E. Moore Counsel for NRC Staff June 1, 1982 DESIGNATED 0,RIGINAD Cartified By N&
Dso) r
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8206040076 820601 PDR ADOCK 05000247 C
TABLE OF CONTENTS Page I.
INTRODUCTION......................
1 II. STATEMENT OF THE CASE..................
1
- y III. QUESTIONS FOR CERTIFICATION...............
9 l
IV. DISCUSSION A.
The Standards for Certification..........
10 B.
The Questions Presented by Licensees Meet the Standards for Certification........
12 C.
Request for Waiver of 10 C.F.R. 5 9.103......
25 V.
CONCLUSION.......................
26 i
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TABLE OF AUTHORITIES ADMINISTRATIVE DECISIONS Page Consolidated Edison Co. of New York, Inc. (Indian Point, Unit 2) and the Power Authority of the State of New York (Indian Point, Unit 3), CLI-81-23, 14 NR,C 610 (1981).....
3, 4, 6, 14, 19 Consolidated Edison Co. of New York, Inc. (Indian Point, Unit 2) and the Power Authority of the State of New York (Indian Point, Unit 3), CLI-81-1,13 NRC 1 (1981)......
2, 3, 14, 22 Consolidated Edison Co. of New York, Inc. (Indian Point, Unit 2) and the Power Authority of the State of New York (Indian Point, Unit 3), Docket Nos. 50-247 and 50-286, unpublished Order dated May 30, 1980.............
2 Sacremento Municipal Utility District (Rancho Seco Nuclear Generating Station), CLI-79-17, 9 NRC 680 (1979).......
25 United States Enercy Research and Development Administration (Clinch River Breecer Reactor Plant), CLI-76-13, 4 NRC 67..
11 Public Service Company of Indiana (Marble Hill Units 1 and 2),
ALAB-405, 5 NRC 1190 (1977).................
12 Toledo Edison Company (Davis-Besse Nuclear Power Station, Unit 1), ALAB-297, 2 NRC 727 (1975)..............
11 Consolidated Edison Company of New York, Inc. (Indian P.oint, Units 1 and 2), DD-80-5, 11 NRC 351 (1980)..........
24 REGULATIONS 10 C.F.R. 5 2.718(i).....................
10 10 C. F. R. 6 2. 7 58.....................
12, 19, 20 10 C.F.R. Part 2, Appendix A, Section V(f)(4).......
11, 13, 21, 23 10 C. F. R. s 9.103.....................
1, 2 5, 26
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSSION In the Matter of
)
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CONSOLIDATED EDIS0N C0f1PANY OF
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Docket Nos. 50-247-SP NEW YORK (Indian Point, Unit 2)
)
50-286-SP
)
POWER AUTHORITY OF THE STATE OF
)
NEW YORK (Indian Point, Unit 3)
)
June 1, 1982 NRC STAFF RESPONSE IN SUPPORT OF LICENSEES' REQUEST FOR CERTIFICATION AND FOR WAIVER OF 10 C.F.R. % 9.103 1.
INTRODUCTION On May 10, 1982 Consolidated Edison Company of New York, Inc. and the Power Authority of the State of New York (Licensees) filed " Licensees' Petition For Directed Certification Pursuant to 10 CFR 5 2.718(i) and For Waiver of 10 CFR 6 9.103" (Request) with the Comission. That pleading requests certification of four questions to the Comission concerning certain rulings relating to the formulation and admission of contentions by the Licensing Board in the Indian Point Special Proceeding. Further, Licensees request that the Commission grant a waiver of the provisions of 10 C.F.R. @ 9.103, thereby allowing citation to the transcripts of open Comission meetings, for the purpose of filing briefs on the certified questions. The Staff herein responds to those requests.
1 l
i II. STATEMENT OF THE CASE On May 30, 1980, the Commission expressed its intent to conduct a discretionary proceeding in the vicinity of the Indian Point Units by an l
Atomic Safety and Licensing Board using the full procedural format of a' l
,w
-g- - -, -,,, - -
trial-type adjudication. Consolidated Edison Co. of New York, Inc.
(Indian Point, Unit 2) and the Power Authority of the State of New York (IndianPoint,[Jnit3),DocketNos.50-247and50-286,unpublishedorder dated May 30, 1980, slip op. at 3.
The Comission stated that the purpose of this proceeding would be "to take evidence and make recommended findings and conclusions on disputed issues material to the question whether the Indian Point Units 2 and 3 plants should be shut down or other action taken."
M. Tentative issues were set forth in the Order, and public coment was sought to aid the Comission in shaping the discretionary proceeding. M. at 2.
On January 8,1981, the Comission issued an Order which set forth the questions it wished addressed in the discretionary proceeding, and the procedures to be followed in the proceeding. Consolideted Edison Co.
of New York, Inc. (Indian Point, Unit 2) and the Power Authority of the State of New York (Indian Point, Unit 3), CLI-81-1, 13 NRC 1 (1981).1/
1/
The questions posed by the Comission are:
?.
What risk may be posed by serious accidents at Indian Point 2 and 3, including accidents not considered in the plants' design basis; pending and after any improvements described (2)and(4)below?
2.
What imp'rovements in the level of safety will result from measures required or referenced in the Director's Order to the licensee, dated February 11, 1980? (A contention by a party that one or more specific safety measures, in addition to those identified or referenced by the Director, should -
be required as a condition of operation of the facility or facilities, would be within the scope of this inquiry.)
3.
What is the current status and degree of conformance with NRC/ FEMA guidelines of state and local emergency planning within a 10-mile radius of the site and, of the extent that it is relevant to risks posed by the two plants, beyond a 10-mile radius?
In this context, an effort should be made to establish what the minimum number of hours
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warning for an effective evacuation of a 10-mile quadrant at Indian Point would be. The FEMA position should be taken as a rebuttable presumption for this estimate.
(F0OTNOTE CONTINUE (' ON NEXT PAGE)
In this Order the Comission clarified the purpose of the Special Pro-ceeding. The Comission stated that its primary concern was "the extent to which the population ound Indian Point affects the risk posed by Indian Point as compared to the spectrum of risks posed by other nuclear pl ants. " M. at 6.
As far as the procedures to be followed in the hearing were concerned, the Comission stated that trial-type adjudication was to be used, including discovery and cross-examination. H. at 5.
The Licensing Board was given discretion to formulate contentions, with the advice of the parties, to effectuate the stated purpose of this proceeding.
Id. at 5 n.4.
On September 18, 1981 the Comission issued another Order in which it clarified both the issues it wished addressed and the procedures to be l
followed in the hearing. Consolidated Edison Co. of New York, Inc.
(Indian Point, Unit 2) and the Power Authority of the State of New York I
1/
(FOOTNOTE CONTINUED FROM PREVIOUS PAGE) 4.
What improvements in the level of emergency planning can be expected in the near future, and on what time schedule, and are there other specific offsite emergency procedures that are feasible and should be taken to protect the public?
5.
Based on the foregoing, how do the risks posed by Indian Point Units 2 and 3 compare with the range of risks posed by other nuclear power plants licensed to operate to by l
the Comission?
(The Board should limit its inquiry to generic examination of the range of risks and not go into "
any site-specific examination other than for Indian Point itself, except to the extent raised by the Task Force.)
6.
What would be the energy, environmental, economic or other consequences of a shutdown of Indian Point Unit 2 and/or Unit 37 7.
Does the Governor of the State of New York wish to express i
an official position with regard to the long-term operation of the units?
13 NRC at 7-8.
' (Indian Point, Unit 3), CLI-81-23, 14 NRC 610 (1981).
In its Order the Connission modified Questions 1 and 2.U
-2/
In the Commission's September 18, 1981 Order, Questiora 1 and 2 were modified to read as follows:
1.
What risk may be posed by serious accidents at Indian Point 2 and 3, including accidents not considered in the plants' design basis, pending and after any improvements described in (2) and (4) below? Although not requiring the preparation of an Environmental Impact Statement, the Commission intends that the review with respect to this question be conductd consistent with the guidance provided the staff in the " Statement of Interim Policy on Nuclear Power Plant Accident Considerations under the National Enviroppental Policy Act of 1969," 44 FR 40101 (June 13, 1980).2/
-5/
In particular, that policy statement indicates that:
Attention shall be given both to the probability of occurrences of releases and to the environmental consequences of such releases; The reviews "shall include a reasoned consider-ation of the environmental risks (impacts) attribut-able to accidents at the particular facility or facilities...";
"Approximately equal attention should be given to the probability of occurrence of releases and to the probability of occurrence of the environmental consequences..."; and Such studies "will take into account significant site and plant-specific features..."
Thus, a description of a release scenario must include a discussion of the probability of such a release for the specific Indian Point plants,
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l 2.
What improvements in the level of safety will result from measures required or referenced in the Director's Order to the licens.e, dated February 11, 1980? (A contention by a party that one or more specific safety measures, in addition i
to those identified or referenced as a condition of operation would be within the scope of this inquiry if, according to the Licensing Board, admission of the contention seems 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 addi-tional proposed measures would result in a significant l
reduction in that risk.)
l l
l
. In its revision ~to footnote 4,3_/ the procedural footnote originally con-tained in the Order of January 8,1981, the Comission pointed out that
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Footnote 4, as revised in the Comission's September 18, 1981 Order addresses the procedures to be used for the special proceeding. That footnote reads:
Because of the investigative nature of this proceeding, further guidance is necessary with respect to certain procedural matters. Because the proceeding, although adjudicatory in form, is not mandated by the Atomic Energy Act, it is not an "on the record" proceeding. Although normal ex parte constraints will apply to comunications to the Licensing Board, the Comission will not be limited in its ability to obtain information with respect to Indian Point from any source. Because the Comission itself is designating by this Order the issues it wishes to be addressed in the adjudication (see the series of questions on pp. 9-10 infra and the reference to the Union of Concerned Scientiest' petition below in this note) it is important that contentions raised by parties and sub-issues raised by the Board in this proceeding contribute materially to answering those designated issues.
Contentions based on the allegations in the Union of Concerned Scientists' petition to the effect that certain Comission regulations are not met in one or both units will be accepted if they meet the requirements of 10 C.F.R. Part 2 without regard to whether they fall within or outside the questions on pages, 9-10.
However the Board will not be bound by the provisions of 10 C.F.R. Part 2 with regard to the admission and formulation of other contentions.
In granting this discretion to the Board, the Comission emphasizes that its purpose is to ensure that the Board is empowered only to accept and formulate, after consultation with the parties, those conten-l tions which seem likely to be important to resolving the Comis-sion's questions on pages 9-10, and thereby to assure that the proceeding remains clearly focused on the issues set forth in this Order. The Licensing Board may also, without regard to the provisions of 10 C.F.R. Part 2, establish whatever order of presentation it deems best suited to the proceeding's invest-l igative purposes.
In other respects, except as provided elsewhere in this Order,10 C.F.R. Part 2 will control.
If the Board con-cludes that further departure from Part 2 is necessary for.the ef-ficient conduct of the hearing, it should request such authorization i
I from the Comission.
In any event, however, the Comission expects I
that, consistent with the approach outlined above with respect to contentions, the Licensing Board will use its existing authority under Part 2 to assure the relevance and efficiency.
l of discovery and cross-examination, in the interest of a l
focused proceeding. The Licensing Board shall not reach an initial decision, but as noted in the Order, shall instead t
formulate recomendations on the questions posed by the (FOOTNOTE CONTINUED ON NEXT PAGE) l the Licensing Board would "not be bound by the provisions of 10 C.F.R. Part 2 with regard to the adoission and formulation of other contentions" and was empowered "only to accept and formulate, after consultation with the parties, those contentions which seem likely to be important to resolving the Comission's questions..." Id. at 611, revised n.4.
The Comission stated that "[I]n granting this discretion to the Board, the Comission emphasizes that its purpose is... to assure that the proceeding remains clearly focused on the issues set forth in this Order."
Id.
By Order dated November 13, 1981, the Licensing Board appointed to preside over the Indian Point proceeding began the process which resulted in the eventual formulation of contentions by the Licensing Board in its April 23, 1982 Order. The November 13, 1981 Order required the petitioners for leave to intervene to file their proposed contentions by December 2, 1981, the date of the start of the Special Prehearing Conference.O At the Special Prehearing Conference, the Staff and Licensees were given until December 31, 1981 to respond to these contentions. Tr. 153.
3]
(FOOTNOTE CONTINUED FROM PREVIOUS PAGE)
Comission. No party will have the " burden of persuasion" as the term is normally used in adjudicatory proceedings; if evidence on a particular matter is in equipoise, the Board's recommendation may be expected to reflect that fact. The staff will be a party to the proceeding, and the licensees will be admitted as parties upon request filed within 30 days of Federa]
Register notice of the appointment of a Licensing Board. All Others wishing to intervene shall file petitions for interven-tion within 30 days of Federal Register notice of the appoint-ment of a Licensing Board. The appointment of the Licensing Board will be announced by subsequent order of the Comission.
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Contentions were filed pursuant to this Board Order by Friends of the Earth and the New York City Audubon Society (F0E/NYC Audubon),.
the Greater New York Council on Energy (GNYCE), the Union of Concerned Scientists and the New York Public Interest Research Group (UCS/NYPIRG), Rockland Citizens for Safe Energy (RCSE), Westchester Peoples' Action Coalition (WESPAC), Parents Concerned About Indian Point (Parents), and West Branch Conservation Association (WBCA).
The Staff objected to many of the proposed contentions in its December 31, 1981 responseN on the grounds that: 1)certaincontentions failedtoprov[deenoughofafactualbasistoallowforadetermination of whether the proposed contention would be likely to be important to answering the Comission's questions; 2) others constituted an impermis-sible challenge to the Commission's regulations; and 3) contentions concerning additional safety measures had failed to satisfy the standard for the admission of such contentions set forth in the Commission's second question. The Staff also objected to certain contentions on the ground that they were so vague that the Staff was unable to discern the meaning of the contention.
By Order dated January 11, 1982, the Licensing Board granted peti-tioners an opportunity to reply to the objections raised by the Staff and Licensees by January 22, 1982. This reply date was extended until January 29, 1982 by Order dated January 26, 1982. The Staff was granted i
until February 11, 1982, to reply to any new matters raised in the replies to the objections. The grounds on which the Staff continued its l
objections to certain of Petitioners' contentions remained the same as those raised in the. Staff's initial objections.N 5]
"NRC Staff Response to Contentions of 10 C.F.R. 6 2.714 Petitioners",
j dated December 31, 1981 (Response).
l
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"NRC Staff Reply to Petitioners' Answer to Opposition to Their Petitions For Leave to Intervene," dated February 11, 1982 (Reply).
t l
_ On April 9,1982, the Licensing Board issued a Memorandum and Order in which it set forth proposed contentions for litigation in this proceeding.
The Board scheduled a Second Special Prehearing Conference to hear oral argument with respect to these proposed contentions.
In its Order the Licensing Board framed broad contentions, listed the Petitioners' contentions on which the broad contentions were based, and appointed lead intervenors to bear primary responsibility for the litigation of these contentions.
At the Second Special Prehearing Conference held on April 13 and 14, 1982, the Licensing Board heard the positions of the Staff, Licensees and Intervenors concerning each of the proposed contentions and intervenor assignments. The Staff at that prehearing conference objected to certain of the Board's contentions on grounds similar to those raised in its previous filings.
See, Tr. 613, 629-33, 742-43, 863, 876. Licensees also raised objections to certain of the contentions formulated by the Licensing Board, raising many of the issues argued in the instant Request.
See, Tr. 555-62, 615-18, 644-53, 748-53, 764-65, 770, 777-79, 865, 867-68.
In that respect, the Second Special Prehearing Conference l
provided the Licensing Board the opportunity to reconsider the contentions it had provisionally formulated. On April 23, 1982, the Licensing Board issued an Order setting forth the final list of contentions to be litigated.7_/
l The contentions as formulated in final form were, for the most part, identical to those in the Order of April 9,1982. There were some modifications, changes in the status of certain parties as contributing intervenors, and the addition of contention 6.3.
" Memorandum and Order (Fonnulating Contentions, Assigning (Order).
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Intervenors, and Setting Schedule)" dated April 23, 1982 In discussing the bases for the Board formulated Contentions the Licensing Board stated:
"The~ bases for the contentions formulated by the Board and set forth below rest in the bases and subparts of the sub-sumed intervenor contentions. We have deliberately avoided specifying detailed factual bases in our formulation of contentions because this is an investigative proceeding. Our responsibility, as we see it, is to bring to light all factual information which may assist materially in answering the Comission's questions. We are mindful of the Comission's instructions to conduct a focused proceeding, but we believe that we should not limit this investigation by imposing inflexibile legal standards." April 23,1982 Order at 2.
Licensees have now moved for certification of four questions relating to the Licensing Board's rulings in its Order of April 23, 1982, and to certain actions taken by the Licensing Board at the Second Special Prehearing Conference. Request at 2-3.
The major grounds for the Licensees' request are (1) that certain of the Licensing Board's actions have broadened the scope of this proceeding substantially, and (2) that the Licensing Board has misinterpreted the intent of the Comission. Hearings are scheduled to begin in this proceeding on June 22, 1982 on the Comission's third and fourth questions.
For the reasons detailed below the Staff supports the Licensees' request.
III. QUESTIONS FOR CERTIFICATION 1.
Whether the Comissior, intended in footnote 4 of its September,
18 Order to permit intervenors to introduce contentions without having to provide a specific factual basis therefore and without l
having to justify the admission of late-filed contentions.
2.
Whether the Commission intended in footnote 4 of its 1
September 18 Order that contentions challenging existing I
Comission regulations could be raised without meeting the requirements of 10 C.F.R. 92.758.
. 3.
Whether the Board failed to comply with the intent of footnote 5 of the Comission's September 18 Order by permitting intervenors to file testimony describing 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 instructions in Comission Question 2 by admitting contentions suggesting specific additional safety measures without requiring a preliminary showing by the sponsoring intervenor that the suggested measures meet the Question's two-pronged test, and by failing to make the explicit Board findings required by the Comission for each suggested measure.
IV. DISCUSSION A. The Standards for Certification Directed Certification is sought'by the Licensees pursuant to 10 C.F.R. 6 2.718(i) of the Comission's regulations. That section states:
A presiding officer has the duty to conduct a fair and impartial hearing according to law, to take appropriate action to avoid delay, and to maintain order. He has all power necessary to those ends, including the powers to:
(i) certify questions to the Comission for its determination, whether in his discretion or on direction of the Comission.
Section 2.718(i) of the Comission's regulations does not contain any standards to be used in determining whether or not directed certificat dn requests should be granted. However, guidance is provided by Section V(f)(4) of Appendix A to 10 C.F.R. Part 2.
Section V(f)(4) states:
A question may be certified to the Comission or the Appeal Board, as appropriate, for determination when a major or novel question of policy, law or procedure is involved which cannot be resolved except by the Commission or the Appeal Board and when a prompt and final ~ decision of the question is important for the protection of the public interest, or to avoid undue delay or serious prejudice to the interests of a party.
The Comission has the inherent supervisory authority over the conduct of an adjudicatory proceeding, including the authority to step in and rule upon the admissibility of a contention before a Licensing Board.
United States Energy Research and Development Administration (Clinch River Breeder Reactor Plant), CLI-76-13, 4 NRC 67, 75-76 (1976).
In the circumstances of this case, where the Commission involvement in determining the content of the proceeding is more direct then in the typical licensing proceeding, such intervention is particularly appropriate.N Thus, the standard to be applied in judging the merits of the Licensees' motion for directed certification should be (1) whether the motion presents a major or novel question of policy, law or procedure which cannot be resolved except by the Commission and (2) whether the prompt and final decision of the question is important for the protection of the public interests or to avoid undue delay or serious prejudice to the interests of a party. The Licensees' motion does present
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The Staff recognizes that the usual practice is that the Licensing Board be given a reasonable opportunity to rule on the issue for certification prior to a request for certification to the Comission. Toledo Edison Company (Davis-Besse Nuclear Power Station, Unit 1) ALAB-297, 2 NRC 727, 729 (1975). The Licensing (FOOTNOTE CONTINUED ON NEXT PAGE)
- questions which-meet the above standard and, in view of the facts of this proceeding wherein the Licensing Board has had a reasonable opportunity to rule on the' issues raised in the Request, the Commission should considerthecertificationrequest.E B.
The Cuestions Presented by Licensees Meet the Stancards for Certification The Licensees argue that the first two questions which they seek to have reviewed relate specifically to the Commissions intention in footnote 4 of the September 18, 1981 Order. Request at 11. Licensees argue that the Conmission in that footnote intended to narrowly focus the proceeding on matters important to resolving the Commission's questions. Specifically the Licensees claim that a lack of strict application of a basis requirement and the requirements of 10 C.F.R. 92.758 for challenging the regulations have resulted in an unfocused proceeding. Request at 11-13.
For these reasons Licensees argue that the Board's actions affect the basic structure of the proceeding in a pervasive manner and, therefore, questions one and two are appropriate i
8]
(F0OTNOTE CONTINUED FROM PREVIOUS PAGE)
Board has had the proposed contentions before it since December 1981 and has had numerous opportunities to address the issues raised in -
Licensees' Request. Specifically the Licensing Board proposed conten-tions to be litigated in its April 9,1982 Order. The Licensees and Staff raised the issues contained in Licensees' Request in the Pre -
hearing Conference held on April 13 and 14,1982. See p. 8, supra.
The Board ruled on those issues in its Order of April 23, 1987.
l Thus, the Board has had a reasonable opportunity to rule on these l
questions.
9]
The Licensees argue that the appropriate standard for certification l
is that presented in Public Service Company of Indiana (Marble Hill l
Units 1 and 2) ALAB-405, 5 NRC 1190 (1977). Request at 9.
That is the Appeal Board's formulation of the standards for discretionary ^
interlocutory review. In either event the Staff believes that the standard for certification has been met.
for certification. The Staff agrees that questions one and two should be certified as they meet the two-part test for certification set forth in Section V(f)(4)*of Appendix A to 10 C.F.R. Part 2.1E/
These questions satisfy the first requirement for certification to the Commission. The questions are novel'because this is a special proceeding set up by Commission order. In ordering this proceeding the Concission gave standards for the admission of contentions different from the provisions of 10 C.F.R. Part 2.
14 NRC at 611, revised n.4.
The questions for certification focus on the Licensing Board's interpretation of Commission's directions for determination and formulation of conten-tions in this special investigatory proceeding. There is no precedent on the application of the Commission's guidance for the conduct of the present proceeding. Only the Commission can resolve with certainty whether these questions have been resolved correctly by the Licensing i
Board. Thus, these questions are " novel questions of policy, law or procedure."
These questions also satisfy the second requirement of the standards for certification to the Commission. The second requirement is that the resolution of the question must be necessary to protect the public l
---10/ Licensees' first question addresses the " basis issue" discussed above and also addresses the application of late-filing requirements to the contentions which were modified verbally at the prehearing conference on April 13 and 14,1982. The Staff's position is that none of these contentions should be considered late filed since the Intervenors were only responding to a Board request for comments.
For this reason, the Staff opposes the certification of that portion of the first question concerning the late-filing requirements.
e
r a
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s interest or to avoid undue delay or: prejudice to the parties. Both delay and prejudice to the parties could result if these issues are not resolved at thi's time. The Commission has indicated that it wishes to have this proceeding completed in an expeditious manner. 13 NRC at 8.
Nothing could frustrate this purpose further tha'n to be conducting a proceeding which spends its time exploring issues other than those which the Commissison' intended to be addressed. Similarly, to have a result
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where the parties spend their resources focusing on isstes not within the Commission's area of interest could preju' dice all parties involved by resulting in a proceeding where the record does not provide the information necessary to resolve the Commission's questions.
In an investigator-2 ding such ad:this, the content of the investigation is as important as any bottom line conclusion. To protect the public interest and to avoid undue prejudice to the parties such a result must be avoided.
The Staff submits that the Licensing Board decided the subject of the first question incorrectly. In its directions for the ' admission of 1
contentions to'this proceeding the Commission stated that "... the Board is enpowered only to accept and formulate, after consultation with the parties, those contentions which seem likely to be important to resolving the Commission's questions... and thereby assure that the proceeding remains clearly focused on the issues set forth in this Order."
14 NRC at 611, revised n.4.
While the Commission indicated in that same footnote that the provisions of 10 C.F.R. Part 2 would not apply to the admission of contentions, it did not rule that the bases for contentions need not be given. The Staff submits that, in view of the "
x h
g
. fact that the Contentions are broadly worded, a statement of bases is needed to insure that the contentions are in fact important to resolving the Comission's questions.
Further, only by requiring that the bases for the contentions be delineated can '.he parties focus their testimony on the issues in the contentions. Absence of the bases for the contentions can only result in a proceeding which is the opposite of the focused proceeding the Comission has directed.
The Licensing Board stated: "We have d211berately avoided specifying detailed factual bases in our formulation of contentions because this is an investigatory proceeding.... We are mindful of the Comission's instructions to conduct a focused proceeding, but we believe that we should not limit this investigation by imposing inflexible legal standards." Order at 2.
The Licensing Board's state-ment misses the point of requiring a statement of basis in support of a contention in this special proceeding. The requirement that a basis be advanced for a contention is not intended to act as a limit on the investigation.
It is needed to n'ake sure the parties are addressing the appropriate concerns for answering the Comission's questions in the preparation of test,imony. While the Licensing Board has indicated that it would monitor discovery, testimony and cross examination to insure relevancy, such monitoring occurs, for the most part, after the testimony, is written and does not serve to insure the parties have prepared in advance testimony which is useful in answering the Comission's questions. The danger of writing testimony which becomes sidetracked on issues other than those necessary to answer the Commmission's questions cannot be protected against by Licensing Board actions taking place after the testimony is written.!
' The potential for testimony which focuses on areas which the Staff believes inappropriate, can be demonstrated by looking at scme of the specific conten'tions formulated by the Licensing Board in its April 23, 1982 Order. Many of the contentions formulated and admitted by the Board are based on contentions advanced by various Intervenors which the Staff has pointed out lack the bases sufficient to determine whether they would be important in resolving the Commission's questions. With regard to Contention 1.1, the Board named Parentr as a contributing intervenor, on the subject of the special susceptability of children to radiation, based on Parents' Contention I.
Order at 3-4.
When one reads Parents' Conten-tion I it is apparent that, although that contention itself mentions the special susceptabiltiy of children to radiation, the bases set forth by Parents relate to the adequacy of the emergency plan to protect those children. There is no mention of the facts on which Parents base its con-clusion that children are more susceptible to radiation then other popu-lations. Therefore, the Staff must now speculate as to how Parents' litigation of Contention 1.1 will relate to Comission Question 1.
The same situation exists with regard to Contentions 2.1(b) and 2.2(d). Contention 2.1(b)isbasedonUCS/NYPIRGContentionIII(A)d.
Order at 5.
The Staff objected to this UCS/NYPRIG contention on the
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grounds that it was ambiguous and could not be related to the Commission's fourth question. Response at 25-26; Reply at 24. The objection to this contention's vagueness was reiterated at the second special prehearing conference, and UCS's counsel was unable to clarify the contention. Tr. 612-13.
It was determined that the Staff and UCS would attempt to clarify the contention through discovery, but no such '
{
_ - _- - _ _______ -____ __-__ - -__. _ _ condition was placed on the contention's admission as a matter in controversy in this proceeding. Tr. 613-14. Contention 2.2(d)wasnot one of the Boar'd's proposed contentions in its April 9, 1982 Memorandum
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and Order.
It is based on WBCA Contention 2 from its January 11, 1982 filing. At the second special prehearing conference WBCA's representative argued that this contention was based on certain unspecified past human errors in plant operation. She did not specify any specific quality assur-ance deficiency in plant design or construction. Tr. 625-26. Additionally, when one examines WBCA's tilings, one is unable to detennine on what incidents in the plant's history this broad contention is based.
In the area of emergency planning many of the admitted contentions have the same potential problem as those discussed above. Contention 3.3 questions the reliability of certain evacuation time estimates because they are based on, among other things, " unproven assumptions." Order at 9.
ThiscontentionisinpartbasedonUCS/NYPIRGContention1(B)(2).
The Staff originally argued that this contention was too vague, and could not be litigated unless limited to the specifics set forth in the bases for the contention. Response at 18. The Staff continued this objection at the second special prehearing conference. Tr. 629. However, the Board made no substantive changes in the wording of its broad contention nor did it limit the contention in any way to the specific bases of the underlying contentions. A similar situation exists with respect to a nu:ter of the contentions and/or subparts underlying Contentions 3.6, 4.1, 4.3, and 4.4.
In the area of comparative risk there is only one broad contention.
Contention 5.1 asserts that Indian Point is less safe then most plants in
" design and operation." Order at 17-18. This contention is based on
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I WBCA's letter of December 2,1981. The Staff objected to WBCA's contentions contained in that letter on the ground that no bases were provided for th'e claims contained therein. Response at 40-41. The Staff is now forced to speculate as to what features of the plant's design and operation will be of concern in this proceeding.
In the area of the costs of shutdown, Contention 6.2 relates to improvements in the " physical environment of child en."
Order at 19.
The contention is based on Parents' Contention IV. The Staff originally objected to this contention on the ground that it was vague. Response at
- 35. At the prehearing conference a definition of physical environment was requested by the Board, and the representative of Parents anumerated a number of items which the organization included in the term " physical environoent," without any specific support for their conclusion. Tr.
912-13. The Board in admitting this contention did not limit its subject matter to the enumerated items. Order at 19.
As these examples illustrate, the admission of vague contentions for which little or no relationship to the Commission's Questions has been shown is widespread throughout the Licensing Board's April 23, 1982 Order.
The lack of specific basis for both the contentions formulated by the Licensing Board and the underlying contentions advanced by the various Intervenors requires the parties to speculate as to the matters to be covered by testimony. This may result in a record in which the direct testimony of the various parties does not address the same subjects.
Fce these reasons, it is necessary for the Comission to interject itself and provide guidance as to the matters to be litigated in tnis proceeding.
In this way undue delay resulting from litigating matters of no interest to the Connission may be avoided, and the public interest will be served by having an expedious proceeding.
1 The Licensing Board also erred in its ruling on the applicability of 10 C.F.R. 6 2.758 to the contentions in this proceeding. E In the Board's April 23,1982 Order it indicated that 10 C.F.R. 5 2.758 would not apply to contentions which were related to the Comission's questions. The Licensing Board based this conclusion on footnote 4 of the Comission's September 18, 1982 Order. Order at 12, n.2.
The Staff submits that the Licensing Board has given that footnote too expansive an interpretation.
Footnote 4, given in the Comission's September 18, 1981 Order, states that "the Board will not be bound by the provisions of 10 C.F.R. Part 2 with regard to the admission and formulation of... conten-tions...
In other respects, except as provided elsewhere in this Order, 10 C.F.R. Part 2 will control."
14 NRC at 611. Section 2.758 of 10 C.F.R. Part 2 is not a provision which is directed primarily at the admission of contentions. Rather, Section 2.758 forbids arguments challenging the Comission's regulations in any NRC adjudicatory proceeding involving initiallicensing.E Thus, Section 2.758 is much broader in scope than regulations which solely address the admissability of contentions. The Staff submits that the Comission intended, in stating that 10 C.F.R. Part 2 would apply except as provided in their Order, that the provisions of Section 2.758 apply to this proceeding. This philosophy behind y See, Contention 3.6, Order at 10; Contention 4.6, Order at 16.
g 10 C.F.R. 5 2.758 provides in pertinent part:
(a) Except as provided in paragraphs (b), (c), and (d) of this section, any rule or regulation of the Comission, or any provision thereof., issued in its program for the licensing cad regulations of production and utilization facilities, source material, special nuclear material or byproduct material, shall not be subject to attack by way of discovery, proof, argument, or other means in any adjudicatory proceeding involving initial licensing subject to this subpart....
_ 10 C.F.R. 5 2.758 is that challenges to the Comission's regulations should not be entertained in individual licensing proceedings, but rather are more appropriately addressed in generic proceedings.
In this investigatory proceeding, where the Comission has specifically set out what it desires be litigated, applying the provisions of Section 2.758 to this proceeding will serve to keep the proceeding focused on the Comission's questions.
The Staff submits that, where the Comission intended that certain of its regulations be subject to challenge, it explicitly indicated its intent by framing questions which challenge the regulations. For example, the language of the second question would allow contentions which argue for additional safety measures beyond those presently required under the regulations. However, the Licensing Board's interpretation has resulted in the admission of contentions which are not related to the above focused area where challenges are appropriate under Question 2.
In fact, the Licensing Board has turned the Comission's third end fourth ques-tions into vehicles which would allow challenges to the entire emergency planning methodology used by the Comission,E rather than an investi-gatory type action as to the present and future state of emergency planning at the Indian Point plant, contemplated by those questions.
The Staff, for the above reasons, believes that the Licensing Board decided the issues contained in Licensees' questions one and two incorrectly and certification of those questions should be granted.
--13/ For example, the Licensing Board admitted a contention which argues the maximum radiation exposure acceptable levels should be established for emergency planning. The Licensing Board admitted this contention as related to the Comission's fourth question which requests information as to other specific offsite emergency procedures. The contention does not raise a specific offsite procedure, but rather challenges the overall regulatory scheme for emergency planning at Indian Point. Contention 4.6; Order at 16.
See also Contention 3.6; Order at 10.
The Licensees argue under their third question for certification that the Licensing Board's interpretation of footnote 5 of the September 18, 1981 Order'was in error as applied to the preparation of testimony.
The Licensees argue that footnote 5 requires that testimony which address consequences to also address the probabilities of those consequences.
Request at 14. The Licensing Board has stated that testimony may be presented which addresses consequences but not probabilities of those l
consequences. Tr. 858. The Licensees assert that this question is appro-priate for certification because the Licensing Board's interpretation broadens the scope of the proceeding impermissibly and has a pervasive effect on the structure of the proceeding. The Staff agrees that Licensees' question three is appropriate for certification since it meets the two-part test of Section V(f)(4) of Appendix A to 10 C.F.R. Part 2.
The above question submitted by the Licensees satisfies the first requirement for certification to the Commission.
It is a novel question of policy, law or procedure. This proceeding is in the unusual situation where the Commission has given explicit directions as to the content of testimony on the issue of the risk posed by accidents at Indian Point.
14 NRC at 612. Although the Staff submits that the Commission was clear in its direction that testimony discussing consequences must include a discussion of the probabilities of those consequences, the Licensing Board arrived at the opposite conclusion. The Commission is the only body which can resolve this dispute as to the procedure which is to be followed for testimony in this special proceeding.
This question also satisfies the second requirement of the certification standard. This is an investigatory proceeding, not a licensing or enforcement proceeding.
The Commission has stated that the
r I Licensing Board.is not to file an initial decision, but rather after developing a record will submit recomendations on the Comission's questions.
13 NRC at 5, n. 4.
If the testimony submitted does not focus on the information which the Comission desires to be gathered, the result can be nothing other than delay in reaching a final resolution of the Comission's investigation and prejudice to all parties involved.
Promises by the Licensing Board to use rulings on relevancy at the hearing to assure that the testimony addresses the Comission's questions does not serve to focus the efforts of the parties, in preparing testimony, on the appropriate information. The public interest will be dealt a dis-service by a misfocused proceeding. E When the Licensing Board was considering the scope of testimony, it discussed whether the consequences of an accident must also address the sequence of events, and their probability, leading up to the accident.
Tr. 858.
Intervenors argued that their expertise did not extend to the latter step. The Licensing Board has ruled that intervenors need not address both consequences and probabilities of accidents in their testirr.cny.
Tr. at 858. As the Commission has stated, risk is a product of both conse-quences and probabilities for an accident scenario.
13 NRC at 6.
While it is true that the Licensing Board could adopt views as to the consequences from one party and views as to the probabilities from another, there is no guarantee in the present proceeding that any party will address the proba-bilities of the events whose consequences are advanced by any other party.
-14/ Board Contentions 1.1, 5.1, and the Board Question on Commission Question Five all address' accident consequences or risk at Indian.
Point. Therefore, all these contentions are potentially affected'by the Licensing Board's ruling on the required content of testimony. '
It is one thing to recognize that disputes over probabilities may be resolved by the Lit.ensing Board adopting one party's allegations as to probabilities over another, but in this case the Board's ruling could result in a lack of any probability estimates from intervenors for the other parties to address.
i The Commission's directions on this point were unambiguous. The Comission stated "... a discussion of a release scenario must include a discussion of the probability of such a release for the specific Indian Point plants."
14 NRC at 612. [ emphasis added). This direction from the Comission must be followed in order to assure that the information generated in this pro-ceeding is useful in resolving the Comission's questions.
For the reasons discussed above, the Staff believes that Licensees' third question is appropriate for certification to the Comission.
The Licensees argue under their fourth question for certification that the Licensing Board has admitted contentions proposing additional safety measures, which do not meet the requirements set forth in Comis-sion Question 2 for such proposals. Request at 16. The Licensees argue that such impermissible addition of issues affects the structure of the entire proceeding in a pervasive manner and this issue is therefore appropriate for certification. The Staff agrees that Licensees question four is appropriate for certification since it meets the two-part test of 3ection V(f)(4) of Appendix A to 10 C.F.R. Part 2.
Comission Question 2, as revised in the Comission's September 18, 1981 Order, states that a contention which raises safety measures other than those referenced in the Director's February 11, 1980 Order should be admitted if the contention seems likely to be important to resolving whether (a) there exists a significant risk to public health and safet
, notwithstanding.the Director's measures, and (b) the additional proposed measures would result in a significant reduction in that risk. 14 NRC at 613. Licensees' question as to the proper interpretation of this test satisfies the first requirement for certification. The test contained in the Comission's question is not the subject of pre'ced nt within the agency. The interpretation of the test is, therefore, a novel question of policy, law and procedure.
This question also satisfies the second requirement for certification in that its resolution is necessary to avoid undue delay and prejudice to the parties. The Comission gave explicit instructions as to the safety measures which it w:nted discussed in this proceeding. As with the first three questions proposed by Licensees, an incorrect resolution of the Com-mission's instructions can lead to a proceeding which is unduly lengthened to consider matters which were not intended to be considered in this proceeding, and can result in parties not focusing on the presentation of the correct information. The result could be a proceeding that, regardless of length, does not provide the answers to the Comission's questions.
The Staff believes that the Licensing Board was in error in its resolution of the application of the two-pronged test for consideration of safety measures. E The Licensing Board did not articulate in its 15/ The Staff does not agree with Licensees that all eight of the safety measures accepted by the Licensing Board for consideration must meet the Comission's two-pronged test. Request at 16. The February 11, 1980 Order referenced by the Commission in stating the two-pronged test was attached to the Directors February 11, 1980 Decision. The Staff considers measures contained in the Decision as being " required or referenced ir. the Directors Order" and, therefore, they need not meet the two-pronged test." Some, but not all, of the safety measures' admitted for consideration by the Licensing Board in Contention 2.1 were referenced in the Director's Decision. Consolidated Edison Company of New York, Inc. (Indian Point, Units 1 and 2), DD-80-6, 11 NRC 351 (1980).
_ orders, nor is it evident in the contentions as written, that the Com-mission's two-pronged test has been considered and met in admitting the contentions. An adherence to this two-pronged test may or may not result in a finding that a consideration of the proposed safety measures would be appropriate. However, without these requirements being addressed by either the Intervenors or the Licensing Board no such determination can be made. The Staff believes that a preliminary showing (a) of a signifi-cant risk tc public health and safety, notwithstanding the Director's measures, and (b) that the additional proposed measures would result in a significant reduction in that risk, should have been a prerequisite to the admission of contentions raising additional safety measures to those referenced by the Director.
For the reasons stated above, the Staff believes that the fourth question proposed by Licensees for certification to the Comission is l
appropriate for certification.
l C.
Request for Waiver of 10 C.F.R. 5 9.103 10 C.F.R. 5 9.103 provides that:
Statements of views or expressions of opinion made by the Comissioners or NRC Employees at open meetings are not intended to represent final determinations or beliefs.
Such statement's may not be pleaded, cited or relied upon before the l
Comission or in any proceeding under Part 2 of these regula-tions, (10 C.F.R. Part 2), except as the Comission may direct.
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The Comission has previously stated that unusual circumstances may I
Justify a waiver of this provision.
See, Sacremento Municipal Utility l
District (Rancho Seco Nuclear Generating Station), CLI-79-17, 9 NRC 680, 682 n.1 (1979). The Licensees request that, due to the unusual circum-stances of this case, a waiver of 10 C.F.R. 5 9.103 be granted with respect to the briefing of the issues which are the subject of its certification request.
.. The Staff believes that the circumstances of the Indian Point special proceeding are sufficiently unusual to justify a waiver of 10 C.F.R. $ 9.I03 for the purpose of briefing the issues for which the Licensees have requested certification., Any such waiver should apply to all parties who present a brief to the Comission on the Licensees' request for certification. Such a waiver serves only to recognize that, unlike the more usual licensing hearing process, this is a special proceeding ordered by the Comission. The Comission's intentions are of crucial concern in determining what should be the scope of this proceeding, in a way not present in any of the usual Comission proceedings. Citation to coments in the transcripts of Comission meetings would be useful to the parties in arguing as to the Comissions' intent. For these reasons, the Staff has no objection to the Comission granting the Licensees' request for a waiver of 10 C.F.R. 5 9.103.
V.
CONCLUSION For the reasons discussed above, the Staff believes that.the Comis-sion should direct certification of the questions proposed by Licensees.
The resolution of these issues will determine the tenor and content of l
the entire Indian Point special proceeding.
In briefing the above issues, should certification be directed, the Staff believes that it would be appropriate to waive 10 C.F.R. % 9.103, thereby allowing citation to the l
transcripts of open Comission meetings.
Respectfully submitted, c GU IGLR. Me4WL Janice E. Mcore i
Counsel for NRC Staff l
Dated at Bethesda, Maryland this 1st day of June, 1982 l
l
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION RFFORF THF COMMf99 TON
)>
In the Matter of CONSOLIDATED EDISON COMPANY Docket Nos. 50-247-SP 0F NEW YORK (Indian Point, Unit 2 h 50-286-SP
)
POWER AUTHORITY OF THE STATE OF
)
NEW YORK (Indian Point, Unit 3)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO SUPPORT OF LISCENSEES'-
REQUEST FOR CERTIFICATION AND FOR WAIVER OF 10 C.F.R. ! 9.103" in the above-captioned proceedings have been served en the following by deposit in the
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United States mail, first class mail, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 1st day of June, 1982:
Louis J. Carter, Esq., Chairman Paul F. Colarulli, Esq.
Administrative Judge Joseph J. Levin, Jr., Esq.
Atomic Safety and Licensing Board Pamela S. Horowitz, Esq.
7300 City Line Avenue Charles Morgan, Jr., Esq.
Philadelphia, PA 19151-2291 Morgan Associates, Chartered 1899 L Street, N.W.
Dr. Oscar H. Paris Washington, D.C.
20036 Administrative Judge Atomic Safety and Licensing Board Charles M. Pratt, Esq.
U.S. Nuclear Regulatory Commission Thomas R. Frey, Esq.
Washington, D.C.
20555
- Power Authority of the State of New York Mr. Frederick J. Shon 10 Columbus Circle Administrative Judge New York, N.Y.
10019 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Comission Ellyn R. Weiss, Esq.
Washington, D.C.
20555
- William S. Jordan, III, Esq.
Hannon & Weiss Brent L. Brandenburg, Esq.
1725 I Street, N.W., Suite 596 Assistant General Counsel Washington, D.C.
20006 Consolidated Edison Co. of New York, Inc.
Joan Holt, Project Director 4 Irving Place Indian Point Project New York, N.Y.
10003 New York Public Interest Research Group Mayor George V. Begany 9 Murray Street Village of Buchanan New York, New York 10007 236 Tate Avenue Buchanan, N.Y.
10511
2-John Gilroy, Westchester Coordinator Stanley B. Klimberg Indian Point Project General Counsel New York Public Interest New York State Energy Office Research Group,
2 Rockefeller State Plaza 240 Central Avenue Albany, N.Y.
12223 White Plains, N.Y.
10606 Marc L. Parris, Esq.
Jeffrey M. Blum, Esq.
Eric Thorsen, Esq.
New York University Law School County Attorney, County of Rockland 423 Vanderbilt Hall 11 New Hempstead Road 40 Washington Square South New City, N.Y.
10956 New York, N.Y.
10012 Geoffrey Cobb Ryan Charles J. Maikish, Esq.
Conservation Committee Litigation Division Chairman, Director The Port Authority of New York City Audubon Society New York and New Jersey 71 West 23rd Street, Suite 1828 One World Trade Center New York, N.Y.
10010 New York, N.Y.
10048 Greater New York Council on Ezra I. Bialik, Esq.
Energy Steve Leipsiz, Esq.
c/o Dean R. Corren, Director Environmental Protection Bureau New York University New York State Attorney 26 Stuyvesant Street General's Office New York, N.Y.
10003 Two World Trade Center New York, N.Y.
10047 Honorable Richard L. Brodsky Member of the County Legislature Alfred B. Del Bello Westchester County Westchester County Executive County Office Building Westchester County White Plains, N.Y.
10601 l
148 Martine Avenue White Plains, NY 10601 Pat Posner, Spokesperson Parents Concerned About Andrew S. Roffe, Esq.
Indian Point New York State Assembly P.O. Box 125 l
Albany, N.Y.
12248 Croton-on-Hudson, N.Y.
10520 l
l Charles A. Scheiner, l
Co-Chairperson Westchester People's Action.
Coalition, Inc.
P.O. Box 488 l
White Plains, N.Y.
10602 l
Honorable Ruth Messinger Lorna Salzman l
Member of the Council of the Mid-Atlantic Representative City of New York Friends of the Earth, Inc.
District #4 208 West 13th Street City Hall New York, N.Y.
10011 1-New York, N.Y.
10007 p
w-p w=
e w
. Alan Latman, Esq.
Ms. Amanda Potterfield, Esq.
44 Sunset Drive NYPIRG Croton-on-Hudson, N.Y.
10520 9 Murray Street New York, New York 10007 Zipporah S. Fleisher West Branch Conservation Renee Schwartz, Esq.
Association Paul Chessin, Esq.
443 Buena Vista Road Laurens R. Schwartz, Esq.
New City, N.Y.
10956 Margaret Oppel, Esq.
Botein, Hays, Sklar & Hertzberg Judith Kessler, Coordinator 200 Park Avenue Rockland Citizens for Safe Energy New York, NY 10166 300 New Hempstead Road New City, N.Y.
10956 Mr. Samuel J. Chilk
- Secretary of the Comission David H. Pikus, Esq.
U.S. Nuclear Regulatory Comission Richard F. Czaja, Esq.
Washington, DC 20555 330 Madison Avenue New York, N.Y.
10017 Leonard Bickwit, Esq.*
General Counsel Atomic Safety and Licensing Board U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Comission Washington,, DC 20555 Washington, D.C.
20555
- Atomic Safety and Licensing Appeal Ruthanne G. Miller, Esq.*
Board U.S. Nuclear Regulatory Comission Atomic Safety and Liscensing Board Penel U.S. Nuclear Regulatory Comission Washington, D.C.
20555 Washington, D.C.
20555 Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Comission Washington, D.C.
20555
- T{.h]L]{ W L & 1'[ W Janice E. Moore Counsel for NRC Staff 5
-.