ML20054F350

Response Opposing Licensee Motion for Order Compelling Responses to Interrogatories,Or Alternatively,For Imposing Sanctions for Failure to Respond.Responses Adequate. Certificate of Svc Encl.Related Correspondence

ML20054F350
Person / Time
Site:	Indian Point
Issue date:	06/11/1982
From:	Weiss E HARMON & WEISS, UNION OF CONCERNED SCIENTISTS
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8206160121
Download: ML20054F350 (8)

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, RELATED CORItESPONDENCE l i

. o b lil ' 8 ;L If UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ~32 03 14 N BEFORE THE ATOMIC SAFETY AND LICENSING BOARD:

)

In the Matter of )

CONSOLIDATED EDISON COMPANY )

OF NEW YORK (Indian Point Unit 2) ) Docket Nos. 50-247

) 50-286 POWER AUTHORITY OF THE STATE )

OF NEW YORK (Indian Point Unit 3) )

)

UCS/NYPIRG RESPONSE TO LICENSEES' MOTION FOR AN ORDER COMPELLING RESPONSES TO INTERROGATORIES OR, IN THE ALTERNATIVE, IMPOSING SANCTIONS FCR FAILURE TO RESPOND AND STRIKING CERTAIN CONTENTIONS The Licensees have scaled new heights of hyperbole in their Motion for an Order Compelling Responses to Interrogatories or, in the Alt'rnative, e Imposing Sanctions for Failure to Reepond, and Striking Certain Contentions. Their motion, which, when one picrces through the inflated rhetoric, does little but repeat over and over again a generalized and unjustified claim of non-responsiveness, is the latest in Licensces' continuing effort to derail this entire investigation.

It cites cases which are inapposite, seeks remedies (striking the " bases" for contentions) which have no precedent and makes serious charges against UCS and NYPIRG which are never cubstantiated in the body of the pleading.

1 8206160121 820611 PDR ADOCK 05000247 O

1. 3 C PDR

2 UCS was served with several hundred questions by_ Licensees, counting subparts. We responded in a document.of 43 pages in length which was produced under extremely tight time constraints at the same time that UCS and NYPIRG were preparing the testimony of our witnesses. There can be no serious question that we have throughout this proceeding responded to discovery requests adequately and in good faith. In addition, Licensees have by now received the bulk of our prefiled testimony.

Our case is spread out for Licensees to see and respond to.

It is simply preposterous for them to claim that they are unable to adequately prepare for the hearings.

Licensees' instant motion, and its conduct throughout the discovery process, contravenes the spirit and letter of the Memorandum and Order of the Board of June 3, 1982 (which was occasioned by c.acther Licensee effort in wasting the time and resources of the Board and UCS/NYPIRG by objecting to timely-noticed depositions). Point #1 of the Board's Order directs the parties to confer before involving the Board and takes the common cense approach of encouraging voluntary discovery. Con Ed and PASNY have made no attempt to settle this dispute with UCS/NYPIRG and are thuc in violation of this section of the Board's Order. Point #5 of the Board's Order directs reduction of the sheer number, volume and complexity of the interrogatories and particularly singles out boiler plate formulas. Although

3 UCS and NYPIRG had considered making a general objection to the length and incredible detail of the Licensees' interrogatories, we elected not to delay the proceedings but to proceed to answer them to the best of our ability.

However, the Board need only peruse the Licensecs' boilerplate (see the note on pages 8-9 of its instant motion for just one example) to conclude that it is excessive by anY reasonable standard. Many of the alleged deficiencies pointed to by Licensees are purported failures to respond in the detail they demand to their boilerplate instructions. The Licensees interrogatories are over-reaching, particularly its boilerplate

" definition" H, and in violation of point #5 of the Board s Order.

Point #10 of the Board's Order directs that all efforts be made to minimize the Board's involvement in discovery.

Licensees have consistently acted in precisely the opposite manner. This motion is the antithesis of the Board's and Intervenors idea of the discovery process, as reflected in point #10.

In support of their motion, Licensees cite inapposite cases and make irresponsible charges which they do not even attempt to support in the sections of the motion dealing with specific alleged deficiencies in the UCS/MYPIRG responses.

Licensees cite remedies and language dealing with " blatant refusals to answer" (p. 5), " recalcitrant parties". . .

" refusing to comply with a direct order of the Board" (pp. 6-7)

4 and claim in a flight of rhetorical excess that Intervenors' responses " constitute egregous flauntings" of a Commission policy (p. 5). The " blatant refusals to answer" involved in Pensylvania Power and Light Co., et al, Susquehanna Steam Electric Station, Units 1 and 2), LBP-80-13, 11 NRC 55, 564 (1980) were just that: the party had provided "no substantive answers to any inquiry" nor had it objected properly, despite eight (8) months of time in which to respond. (Id. at 564-565). Even so, the party was not dismissed, although a sanction was imposed. This should be contrasted with the Board's refusal to impose sanctions against other Intervenors who were found to have made good faith efforts to respond to complex questions (Id. at 563-564) Licensees citations generally follow this pattern; they bear no similarity to the facts of this case. (E.g., Metropolitan Edison Co.,

Three Mile Island Nuclear Station, Unit No. 1, LBP-80-17, 11 NRC 893 (1980) cited at pp. 9, 10, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 of Licensees' Motion. The case again

, involved a total failure to respond both to interrogatories l

and continuing refusal to comply with direct Board Order.

It hardly applies to this situation.)

Licensees also miss the fundamental distinctions between this investigative proceeding and licensing cases: the company does not have the burden of proof here, nor can the i Board's decision result in an enforceable order against them.

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Unlike licensing cases, Licensees are not obliged to come forward with direct evidence on all admitted contentions or risk an adverse ruling because of the allocation of the burden of proof. This risk to an Applicant in a licensing case is the underpinning of the section of the Metropolitan Edison decision quoted at page 10 of Licensees' motion.

Moreover, the Commission established this proceeding as an investigation, with waiver of the ex garte rule, in order to provide a mechanism for producing a record that contains the broadest range of pertinent evidence on these policy and technical issues of first impression. Licensees seek by use of every marginally applicable adversarial maneuver to limit the record, rest.ict the Intervenors, hamstring the Board and divert the resources of all concerned.

This motion should be denied.

r Respectfully submitted,

/

' m E. 2 . R. Weiss Counsel for Union of Concerned Scientists HARMON & WEISS 1725 I Street, N.W.

Suite 506 Washington, D.C. 20006 Amanda PotterfiEld Counsel for New York Public Interest Research Group 9 Murray Street, Third Floor New York, New York 10007 Date:

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

CONSOLID ATED EDISON COMP ANY OF NEW YORK ) Docket Nos.

(Indian Point Unit 2) )

) 50-247 POWER AUTHORITY OF THE STATE OF NEW YORK ) 50-286 (Indian Point Unit 3) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing UCS/NYPIRG RESPONSE TO LICENSEES' MOTION FOR AN ORDER COMPELLING RESPONSES TO INTERROGATORIES OR, IN THE ALTERNATIVE, IMPOSING SANCTIONS FOR FAILURE TO RESPOND AND STRIKING CERTAIN CONTENTIONS was sent by first class mail, postage pre-paid, to the following:

• Louis J . Carter , Esq. , Chairman Jeffrey M. Blum, Esq.

Atomic Safety and Licensing Board New York University Law School 7300 City Line Avenue 423 Vanderbilt Hall Philadelphia, Penn. 19151 40 Washington Square South New York, New York 10012

• Dr . Oscar H . Paris Ms . Joan Holt Atomic Safety and Licensing Bo ard New York Public Interest Research United States Nucle ar Group Regulatory Commission 5 Beekman Street Washing ton D .C . 2 055 5 New York, New York 10038 Docketing & Service (2) *Mr . Frederick J . Shon U.S . Nuclear Regulatory Commission Atomic Safety and Licensing Board Washing ton , D .C . 2 055 5 United States Nucle ar Regulatory Commission Washington, D .C. 2 0555 Brent L. Br andenburg , Esq.

Rich ard P. Remshaw John D . O 'Toole *Jani ce Moo re , E sq .

Consolidated Edison Company Office of the Executive of New York, Inc. Legal Director 4 Trving Place United States Nucl ear New York, New York 10003 Regulatory Commission Washington, D .C . 2 0555

e

. Charles J . Mailkish, Esq. Ms. Pat Posner, Spokesperson General Counsel Parents Concerned About The Port Authority of New York Indian Point and New Jersey P.O. Box 125 One World Trade Center, 66S Croton-On-Hudson , New Yor!c 105 20 New York, New York 10048 Greater New York Council on Energy

'c/o Dean R. Corren.

New York University 26 Stuyvesant Street New York, New York 10003 Mr. Geoffrey Cobb Ryan Zipporah S. Fleisher, Secretary Conservation Committee Chairman West Branch Conservation Association Director, New York City 443 Buena Vista Road Audubon Society New City, New York, 10956 71 West 23rd Street, Suite 1828 New York, New York 10010 Charles A . Scheiner, Co-Chair person Westchester People 's Action Stanley B. Klimberg, Esq.

Coalition, Inc. General Counsel P.O. Box 488 New York State Energy Office White Plains, New York 10602 2 Rockefeller State Plaza Albany, New York 12223 Mayor George V. Begany Richard F. Czaja, Esq.

Village of Buchanan David H. Pikus , Esq.

236 Tate Avenue Shea & Gould (PASNY)

Buchanan, New York 10511 330 Madison Ave.

New York, New York 10017 Alan Latman, Esq.

Westchester People 's Action Judith K ssler, Coordinator Coalition, Inc. Rockland Citizens for Safe Energy 44 Sunset Drive 300 New Hempstead Road Croton-On-Hudson , New York 105 20 New City, New York 10956 Andrew S. Roffe, Esq. Richard L. Brodsky New York State Assembly County Office Building Albany, New York 12248 White Plains, New York 10601 Ezra I. Bialik, Esq. Marc L. Parris, Esq.

Steve Leipzig , Esq. County Attorney Environmental Protection Bureau Eric Ole Thorsem, Esq.

New York State Attorney General's County of Rockland Office 11 New Hempstead Road Two World Trade Center New City, New York 10956 New York, New York 10047

Ms. Amanda Potterfield, Esquire Renee Schwartz, Esq. P. O. Box 384 Botein, Hays, Sklar and Herzberg Village Station New York, New York 10014 Ne York, New ork 10166 Honorable Ruth W. Messinger Mr. Donald L. Sapir, Esquire Council Member 60 East Mount Airy Road 4th District, Man hattan Croton-on-Hudson, N.Y. 10520 City Hall -

New York, New York 10007 Ms. Lorna Salzman Atomic Safety and Licensing Friends of the Earth Board 208 West 13th Street U.S. Nuclear Regulatory New York, New York 10011 Commission Washington, D.C. 20555 Mr . Alfred B . Del Bello Westchester County Executive Westchester County Atomic Safety and Licensing 148 Martine Avenue -Appeal Board New York, New York 10601 U.S. Nuclear Board Washington, D.C. 20555 Morgan Associates, Chartered (PASNY) 1899 L. St., N.W.

Washington, D.C. 20036 Thomas R. Frey, Esq.

Charles M. Pratt, Esq.

Office of the General Counsel Power Authority of the State of New York 10 Columbus Circle New York, New York 10019

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Date: June 11, 1982 Ellyn R. Weiss

• Hand delivered by messenger

• • Express mail

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