ML20053E806

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Response Opposing Request to Inspect Plant.West Branch Conservation Assoc Fails to Specify Items to Be Inspected,To Justify Necessity,To Show Other Discovery Methods Insufficient & to Show Relevance.W/Certificate of Svc
ML20053E806
Person / Time
Site: Indian Point  Entergy icon.png
Issue date: 06/07/1982
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:
WEST BRANCH CONSERVATION ASSOCIATION
References
ISSUANCES-SP, NUDOCS 8206100110
Download: ML20053E806 (8)
v • d • e


Text

F UNITED STATES OF AMERICA $} , . . . , _

NUCLEAR REGULATORY COMMISSION' g',l, l ,'

ATOMIC SAFETY AND LICENSING BOARD to , ?! -8 P2 :35

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Before Administrative Judges:

Lo uis J . Carter, Chairman '

Dr. Oscar H. Paris '~

Frederick J. Shon

/

)

In the Matter of )

)

CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. ) Docke t Nos.

(Indian Point, Unit No. 2) ) 50-247 SP

) 50-286 SP POWER AUTHORITY OF THE SfATE OF NEW YORK )

(Indian Point, Unit No. 3) ) June 7, 1982

)

)

LICENSEES' RESPONSE TO WEST BRANCH CONSERVATION ASSOCIATION'S REQUEST FOR ON-SITE INSPECTIONS OF INDIAN POINT UNITS 2 AND 3 Pursuant to 10 C.F.R. 5 2.741(d) (1981), Consolidated Edison Company of New York, Inc. and the Power Authority of the State of New York, licensees of Indian Point Units 2 and 3, respectively, hereby respond to West Branch Conservation Association's (WBCA's) request to inspect Indian Point Units 2 and 3. Licensees oppose this request because WBCA has f ailed to satisfy the requirements and underlying purposes o f 10 C . F . R . S 2.741(c) in that WBCA's request fails to:

(1) state the items to be inspected with sufficient particularity; (2) justify the necessity for an on-site inspection; (3) demonstrate why other discovery methods are 0hhhhf7 PDR

f not sufficient; and (4) state its representative's quali-fications relevant to the inspection.

Section 2.741(c) requires a party requesting permission to enter upon the property of another party for inspection purposes to describe each item to be inspected with

" reasonable particularity." 10 C.F.R. S 2.741(c). Ye t ,

WBCA's request "to inspect the entire containment building cooling system and the secondary system outside containment" lacks sufficient particularity. Request from West Branch Conservation Association to the Licensees to Arrange On-Site Inspection of Indian Point Generating Stations Units #2 and

  1. 3 at 1 (filed May 3, 1982). WBCA has also completely neglected to "specify [the] manner of making the inspection," 10 C.F.R. S 2.741(c), and the time required for such inspection. Id.

Policy considerations underlying the identical Federal Rule of Civil Procedure further demonstrate the necessity for greater specificity. See Fed.R.Civ.P. 34. In Belcher

v. Bassett Furniture Industries, Inc., 588 F.2d 904, 908 (4th Cir. 1978), the court stated that a " bare skeletal request" for inspection of premises is insufficient.

Since entry upon a party's premises may entail greater burdens and risks than mere production of documents, a greater inquiry into the necessity for inspec-tion would seem warranted.

Id . (emphasis added).

WBCA has not demonstrated any " necessity" for on-site inspection. Although WBCA claims that the request "is for the purpose of testifying," Interrogatory--West Branch Con-servation Association's Second Request for On-Site Inspec-tion of Indian Point Units # 2 and # 3, of the Consolidated Edison Company and the Power Authority of the State of New York at 1 (filed May 29, 1982), " [i] t is clear that the rig ht to discovery is a qualified right that does not extend to making unnecessary and unwarranted excursions into the property of another under the guise of supportable litiga-tive need." Belcher v. Bassett Furniture Industries, Inc.,

588 P.2d at 908 n.12 (citation omitted) . WBCA's request

" fails to specify any. reason or need for the inspection."

Id . at 9 07.

The court in Belcher f urther stated that "one method (of discovery] cannot arbitrarily be demanded over another simply because it is less burdensome to the moving party."

Ici . at 910. WBCA has failed to explain why interrogatories and requests for production of documents are insuf ficient for its needs in this proceeding. Such justification for an

on-site inspection is especially appropriate given the extremely tight timeframe allowed for discovery and hearings in this proceeding.

! Additionally, WBCA requests that Mr. Walter L. Fleisher conduct the inspection. Although Mrs. Fleisher has com-l mented that Mr. Fleisher "has previously had clearance and t

l L-

r has not thrown a bomb or anything like that when he was in there," Transcript at 932 ( Apr. 14, 1982), WBCA has not offered any indication, whatsoever, that Mr. Fleisher has the necessary qualifications and expertise to undertake an inspection of the plants that would be relevant to conten-tions 2.2 and 5.1 for which WBCA is the lead intervenor.

Without such demonstration, Licensees may be subjected to an unnecessary waste of resources.

The Licensees are not opposed to reasonable inspections of Units 2 and 3 that is necessary and relevant to this proceeding and is conducted in accordance with the Commission's security and access requirements. However,

"[t]he degree to which the proposed inspection will aid in the search for truth must be balanced against the burdens and dangers created by the inspection." Belcher v. Bassett Furniture Industries, Inc., 588 F.2d at 908 (footnote omitted). To avoid undue " burdens and dangers" the Licensees suggest that. (1) each intervenor be required to j

determine by a designated date if they intend to seek on-site inspection; (2) each intervenor justify the necessity for on-site inspection and specify the items to be inspected, the qualifications of the inspecting individuals, and the manner of the proposed inspection pursuant to 10 C.F.R. S 2.741(c); and (3) intervenors satisfying sec-tion 2.741(c) be required to inspect the sites simultane-ously.

l l

L

I CONCLUSION Based on the reasons stated herein, Consolidated Edison Company of New York, Inc. and the Power Authority of the State of New York request that West Branch Conservation Association's request for inspection of Indian Point Units 2 and 3 be denied.

Respectfully submitted, U L2 Brent L. BrandenburgC78' '-

k% $

Charles Morgan,"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) 460-4600 Thomas R. Frey General Counsel Charles M. Pratt Assistant General Counsel POWER AUTHORITY OF THE STATE OF NEW YORK Licensee of Indian Point Unit 3 10 Columbus Circle New York, New York 10019 (212) 397-6200 Bernard D. Fischman Michael Curley Richard F. Czaja David H. Pikus SHEA & GOULD 330 Madison Avenue '

New York, New York 10017 (212) 370-8000

F UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Louis J. Carter, Chairman Dr. Oscar H. Paris Frederick J. Shon

)

In the Matter of )

)

CONSOLIDATED EDISON COMPANY OF )

NEW YORK, INC. ) Docket Nos. 50-247 SP (Indian Point, Unit No. 2) ) 50-286 SP

)

POWER AUTHORITY OF THE STATE OF ) June 7, 1982 NEW YORK )

(Indian Point, Unit No. 3) )

)

CERTIFICATE OF SERVICE I hereby certify that on the 7th day of June, 1982, I caused a copy of Licensees' Response to West Branch Conservation Association's Request for On-Site Inspections of l Indian Point Units 2 and 3 to be served by first-class mail, I

postage prepaid on the following persons located in Wa shing ton , D.C. and by express mail, postage prepaid on all others:

c

F r

Louis J. Carter, Esq., Chairman Janice !!oore , Esq.

Administrative Judge Counsel for NRC Staf f Atomic Safety and Licensing Board Office of the Executive 7300 City Line Avenue Legal Director Philadelphia, Pennsylvania 19151 U.S. 11uclear Regulatory Commission Washington, D.C. 20555 tir. Frederick J. Shon Administrative Judge Brent L. Brandenburg, Esq.

Atomic Safety and Licensing Board Assistant General Counsel U.S. tiuclear Regulatory Commission Consolidated Edison Company Washington, D.C. 20555 of New York, Inc.

4 Irving Place Dr. Oscar H. Paris New York, New York 10003 Administrative Judge Atomic Safety and Licensing Board Ellyn R. Weiss, Esq.

U.S. ?!uclear Regulatory Commission William S. Jordan, III, Esq.

Washington, D.C. 20555 Harmon and Weiss 1725 I Street, N.W., Suite 506 Docketing and Service Branch Washing ton , D.C. 20006 Office of the Secretary U.S. Nuclear Regulatory Commission Charles A Scheiner, Co-Chairperson Washington, D.C. 20555 Westchester People's Action Coalition, Inc.

Joan Holt, Project Director P.O. Box 488 Indian Point Project White Plains, New York 10602 New York Public Interest Research Group Alan Latman, Esq.

9 tiurray Street 44 Sunset Drive New York, New York 10007 Croton-On-Hudson, New York 10520 John Gilroy Ezra I. Bialik, Esq.

Westchester Coordinator Steve Leipzig, Esq.

Indian Point Project Environmental Protection Bureau New York Public Interest Research New York State Attorney Group General's Office 240 Central Avenue Two World Trade Center White Plains, New York 10606 New York, New York 10047 Jeffrey M. Blum, Esq. Alfred B. Del Bello New York University Law School Westchester County Executive 423 Vanderbilt Hall Westchester County 40 Washington Square South 148 Martine Avenue tiew York, New York 10012 New York, New York 10601 Charles J. tiaikish, Esq. Andrew S. Roffe, Esq.

Litigation Division New York State Assembly The Port Authority of New York Albany, New York 12248 and New Jersev ~

One World Trade Center Marc L. Parris, Esq.

New York, New York 10048 Eric Thorsen, Esq. '

County Attorney County of Rockland 11 New Hempstead Road New City, New York 10956

F

.. Pat Posner, Spokesperson Stanley B. Klimberg, Esq.

Parents Concerned About Indian General Counsel Point New York State Energy Office P.O. Box 125 2 Rockefeller State Plaza Croton-on-Hudson, New York 10L20 Albany, New York 12223 Renee Schwartz, Esq. Atomic Safety and Licensing Botein, Hays, Sklar and Herzberg Board Panel Attorneys for Metropolitan U.S. Nuclear Regulatory Commission Transporation Authority Washington, D.C. 20555 200 Park Avenue New York, New York 10166 Atomic Safety and Licensing Appeal Board Panel Honorable Ruth W. Messinger U.S. Nuclear Regulatory Commission Member of the Council of the Washington, D.C. 20555 City of New York District 44 Honorable Richard L. Brodsky City Hall Member of the County Legislature New York, New York 10007 Westchester County County Office Building Greater New York Council White Plains, New York 10601 on Energy c/o Dean R. Corren, Director Zipporah S. Fleisher New York University West Branch Conservation 26 Stuyvesant Street Association New York, New York 10003 443 Buena Vista Road New City, New York 10956 Geoffrey Cobb Ryan Conservation Committee Chairman Mayor George V. Begany Director, New York City Village of Buchanan Audubon Society 236 Tate Avenue

Richard F. Czaja, Esq.

Mr. Donald L. Sapir, Esq. 330 Madison Avenue 60 East Mount Airy Road New York, New York 10017 RFD 1, Box 360 Croton-on-Hudson, New York 10520 Ms. Amanda Potterfield, Esq.

P.O. Box 384 Ruthanne G. Miller, Esq. Village Station Atomic Safety and Licensing Board New York, New York 10014 Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 ,

J p 3 ~g Paul F. Colarulli f.

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