ML20054F614

Motion for Order Striking Ucs/Ny Pirg Direct Testimony & for Denial of Ucs/Ny Pirg Request for Extension of Time to File Testimony.Filing Entirely Inconsistent W/Direction & Schedule of Proceeding.Certificate of Svc Encl

ML20054F614
Person / Time
Site:	Indian Point
Issue date:	06/14/1982
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:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-SP, NUDOCS 8206170157
Download: ML20054F614 (16)

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UNITED STATES OF AMERICA 79 "y . g ,4. .v, 11UCLEAR BEGULATORY COMMISSION ATOMIC SAFETY A!!D LICEllSING BOAPD '

Before Administrative Judges: - -

Louis J. Carter, Chairnan Frederick J. Shon Er. Oscar II. Paris

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In the Matter of ) Docket I;os.

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CO!!SOLIDATED EDISCli COfiPAt:Y OF !!EW YORK, ) 50-247 SP INC. (Indian Point, Unit !!o. 2) ) 50-286 SP

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PCWER AUTHORITY OF T!!E STATE OF !!EW YORK ) June 14, 1982 (Indian Point, Unit !!o. 3) )

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l LICE!; SEES' MCTION FOR AI; CEDER STRIKI!!G DIRECT TESTIMONY A!!D A!!SWER TC UCS/!!YPIPC RECUEST FOR A!! EXTEPSIO!1 OF TIME Ill

_EHICil TO FILE TESTIt'C11Y ATTOnt1EYS FILII G TilIS DOCUME!;T:

Charles Morgan, Jr. Brent L. Brandenburg l' ORCA!! ASSCCIATES , CilARTEFED CCl?SOLICATED EDISO!1 CCMPAliY 1899 L Street, !! . W . CF 1:EK YORK, IllC.

Washington, D.C. 20036 4 Irving Place (202) 466-7000 1:eu York,11cu York 10003 (212) 460-4600 95 U 8206170157 920614 DR ADOCK 05000247 PDR

Uf1ITED STATES OF AMERICA

!!UCLEAR REGULATORY COMMISSION ATOMIC SAFETY A!!D LICE!! SING BOARD Defore Administrative Judges:

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

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x In the Matter of  : Docket 1cs. 50-247 SP 50-206 SP CO!!SOLIDATED EDISCt! CCPPA!!Y OF  :

NEW YORK, It:C. (Indian Point, June 14, 1982 Unit flo. 2)  :

POWER AUTIICPITY OF TI!E STATE OF  :

I;EW YOFK (Indian Point, Un i t 17o . 3)

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x LICE!; SEES' !!OTIO!! FOR All ORDEP STRIKING DIDECT TESTIMO!!Y A11D ANSWER TO UCS/11YPIRG RECUEST FCE A!! EXTENSIO!I OF TIME I!;

WilICil TO FILE TESTIMO!;Y _

Consolidated Edison Company of New York, Inc.,

licensee of Indian Point Station, Unit I;o. 2, and Power Authority of the State of 11ev York, licensee of Indian Point 3 11uclear Power Plant (collectively the " licensees"), hereby move l the Atenic Safety and Licensing Board (" Board"), pursuant to 10 CFR Part 2, and the orders of the Commission and the Board governing this proceeding, to strike the purported direct

' testinony of intervenors Union of Concerned Scientists /11ew York Public Interest Fenearch Croup, Inc. ("UCS/tYPIDG"), hectchester t

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People's Action Coalition, Inc. ("HESPAC"), West Branch Conser-vation Association ("WDCA"), Friends of the Farth, Inc. ("FCEd),

New York City Audubon Society ("Audubon"), Parents Concerned About Indian Point (" Parents"), and Rockland Citizens for Safe Energy ("PCSE"), and the interested state, the Attorney General of the State of New York. (The parties sponsoring the purported direct testimony are hereinafter referred to collectively as "intervenors.")

On June 9, licensees received a melange of dccuments purporting to be the direct testimony of 158 witnesses on l

Cennission Cuestions 3 and 4 and an application to untimely file direct testimony of 13 additional witnesses. The most cursory examination of this filing demonstrates that it in no sense constitutes direct testimony within the meaning of the Conmission's rules and orders. Rather, intervenors seek to

! subvert the Commission's goal of a limited, focused inquiry and l

l to make a mockery of the Board's established procedures and schedule by seeking a proceeding without foreseeable termination.

l At the April 13 and 14 prehearing conference, the intervenors gave no indication whatscever that they would seek to file direct testimony for scoe 171 witnesses. If they had, then discussion of the proposed hearing schedule would have l

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been substantially different. lior did the intervenors reveal their plans in sworn responses to licensees' interrogatories wherein intervenors collectively listed only 36 uitnesses for cr.ergency planning issues. And, again, during a June 1, 1982 telephonic conference with this Board in which the taking of depositions of witnesses wa's discussed, not one word was uttered or even hinted by intervenors to suggest that they would have 171 witnesses.

Father, in what can only be characterized as bad faith, intervenors on June 7 (only three business days later)

" supplemented" their original witness lists to add 137 uitnesses or approximately five times the number of total witnesses they had previously revealed. Additionally, 13 of these witnesses provided no direct testimony. Thus, only ten days before the prehearing conference and, only two weeks before the connence-ment of the evidentiary hearing, intervenors have thrown into

! havoc the Board's schedule for cross-exanination plans, for the beginning of the hearing, and for a good faith, nutual discovery i

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l The intervenors have left this Board with only one choice: the intervenors' direct testinony of 171 witnesses f

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nust he stricken and the intervenors ordered to act responsibly l

in this proceeding by sul.nitting a realistic and reasonable l

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list of witnesses with completed prefiled testimony. To require less of intervenors is to stamp with approval their bad faith conduct and their-attempts to make a mockery of this specially mandated Conmission proceeding.

We discuss a number of respects in which intervenors' filing - by its very nature - is manifestly not in compliance with the conmissison's rules and orders.*

1. Intervenors' filing is entirely inconsistent with the Commission's direction that this proceding be focused. In its January 8, 1981 order instituting this proceeding, the Commisssion stated (at p. 7):

In view of the complexity of this proceeding, and in order that the Commission may make its decision within a reasonable period of time, we stress that the coard should focus clearly upon the questions asked by the Connission.

No more unfocused proceeding can be imagined than one in which intervenors are permitted to present 171 witnesses on j two of the Commission's seven questions, particularly where the testinony of such uitnesses manifestly includes cumulative, redundant, and immaterial testimony. See 10 CFR S2.757.

• Thus, licensees will not address in this motion the question of whether, had a coberent subset of intervenors' subnission been i

filed, such testimony would otherwise be properly admissible on Cennission Cuestions 3 and 4. Such a coherent filing is simply presently not beforc the Board. When and if such a filing is made, the admissibility of particular iteras of testimony can

, be addressed by notion to strike or otherwise.

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Intervenors hava repeatedly stated that at the next stage of this proceeding their case would be focused.

This promise has never been realized. When licensees objected to the unfocused nature of intervenors' contentions, details were promised in discovery. As an excuse for their inadequate and incomplete discovery answers, intervenors pointed to their forthcoming direct testimony. Intervenors' purported direct testintony exacerbates rather than cures the deficiencies in intervenors' earlier filings. The Board cannot permit this filing to serve as " direct testimony" in view of the Commission's direction that this hearing be focused.

2. Intervenors' filing is entirely inconsistent with the Commission's and the Board's schedule herein. The Commission has stated that it would like to receive the Board's recommendations no later than September 18. The Board's April 23 order provides for twenty-three (23) hearing days, conmenc-ing on June 22 and continuing intermittently until August 6.

It would not realistically be possible for hearings to continue beyond August 6, inasmuch as the parties will be required to prepare proposed findings and the Board will be required to review the record and prepare recommendations by September 18.

It is evident that the Board intended June 22, 23, 24 and 25 and July 6, 7, 8, and 9 as hearing dates upon which Connission Cuestion 3 and 4 issues would be considered, because three days afterwards, on July 12, the parties are required to nove on to Question 6 by filing Question 6 cross-examination plans.

Acceptance of the proposition tnat intervenors nay present 171 witnesses on two of the Commission's seven ques-tions would require complete abandonment of the Conmisaion's and Board's schedule, and would require a proceeding without forseeable termination, but certainly requiring several years.

Such a proceeding is certainly not the type of focused, expedited proceeding nanadated by the Commission.

3. Intervenors' filing _ demonstrates a_tetal disregard of their disccvery obligations. Licensees consistently have argued in this proceeding that intervenors have proferred contentions related to energency planning for which they have failed to provide adequate factual bases pursuant to 10 CFR E2.714. The Board, taking the position that whatever was lacking with regard to factual bases could be cured during the discovery process, stressed at the second special prehearing conference the irrortance of the use of discovery to identify the crucial issues in tr.. proceeding. Transcript of Proceeding at 605 (April 13, 1982). Interrogatory responses are thus particularly important in this present proceeding since the Board i

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(unlike boards in typical operating licensing cases) has here in substance found that discovery would serve to supply the specific factual bases for contentions (id.), which bases were notably absent from many of intervenors' initial contention submissions. Licensees specifically directed an interrogatory to intervenors regarding the identity of their witnesses and the subject matter and bases of their testinony.* Prior to June 9, intervenors had identified only 36 witnesses.**

• Licensees posed the following interrogatory:

Identify:

(a) each person whom you expect to call as a witness at the evidentiary hearings relating to Commission Cuestions 3 and 4...

(b) the subject natter and board contention and underlying intervenor contention on which the witness is expected to testify; (c) the substance of the facts and opinions to uhich the witness is expected to testify and a summary of the grounds for each opinion; (d) each document...upon which the witness has based his testimony, or will so rely at the hearing, or will otherwise refer to in support of his testinony; (e) any relationship between the witness and any intervenor or party therein; and (f) any proceeding in which the uitness has previously testified and the transcript pages of such testimony...

• • Even in those instances in which intervenors identified their seitnesses, they, for the most part, simply disregarded the remainder of licensees' interrogatory.

Manifestly, intervenors did not obtain the identities of an additional 137 witnesses between the filing of their inter-rogatory answers and their June 7 filing. Intervenors' utter disregard of their obligation to identify witnesses is a further reason requiring the striking of their direct testi-nony.

Licensees submit that it is no defense to the nature of intervenors' filing to assert that somewhere within it may be found elements of appropriate testimony. Ke submit that it is not the obligation of the Board, the licensees, or the other participants in this proceeding to now search through intervenors' filing for morsels of appropriate testinony. Pather, it was the I obligation of intervenors to file a coherent set of direct testinony en June 7. Intervenors having failed to do this, this investigatory proceeding should now proceed in the limited time available for exanination of Commission Cuestions 3 and 4 on the basis of the properly filed direct testimony before it.

Licensees further submit that UCS/11YPIRC's notion to untinely file the testimony of thirteen additional witnesses should be denied for the reasons set forth above and for the follcuing additional reasons:

(1) Licensees would be prejudiced by the filing of testimony on Connission Cuestions 3 and 4 one day before the l

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commencement of hearings on these questions, as proposed by UCS/NYPIBG; (2) UCS/NYPIRG has been aware of the nature of the testimony it would be required to present since January, 1980; and (3) The Board in setting a June 7 deadline for the filing of direct testimony adopted the proposal of intervenors at the April 13-14 prehearing conference. Since that date, UCS/NYPIRG has been well aware of the schedule on which direct testimony should be filed.

In summary, UCS/NYPIRG has failed to demonstrate good cause for its request for an extension of time, and the request should therefore be denied.

Licensees do not seek by this motion to foreclose completely intervenors' right to file testimony on Commission cuestions 3 and 4. Rather this motion seeks to achieve the Ccamission's goal of a limited, focused inquiry based on appro-j priate direct testimony.

WHEREFORE, licensees respectfully request that the Board issue an order striking the direct testimony of intervenors l

UCS/UYPIRC, EESPAC, EECA, FCE, Audubon, Parents, RCSE, and the l

, interested state, the Attorney General of the State of 1:eu York, l

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f and denying UCS/!!YPIRG's request for an extension of time to file direct testimony, together with such other and further relief as the Board may deen just and proper.

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i e-Respectfully submitted,

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Brent L. Brandenburg_ Charles Morgan, q'1.

5 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 POUER 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 Dated: June 14, 1982

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AUD LICEUSIUC BOARD Before Administrative Judges:

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

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In the Matter of ) Docket Mos.

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COUSOLIDATED EDISON COMPAUY OF UEW YOEK, ) 50-247 SP INC. (Indian Point, Unit No. 2) ) 50-286 SP POWEP AUTIIORITY OF Tl!E STATE OF MEW YORK )

(Indian Point, Unit No. 3) ) June 14, 1982

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CEPTIFICATE OF SERVICE I hereby certify that copies of LICEUSEES' MOTIOM FOD AU ORDER STRIKING DIRECT TESTIMCNY AND AUSWER TO UCS/NYPIRC PEQUEST FOR AN EXTENSION OF TIME IN WHICII TO FILE TESTIMCUY in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, this 14th day of June, 1982.

Docketing and Service Branch Fllyn R. Weiss, Esq.*

Office of the Secretary Uillian S. Jordan, III, Esq.

U. S. Nuclear Pegulatory liarmon & Weiss Comnission 1725 I Street, N.W., Suite 506 Washington, D.C. 20555 Washington, D.C. 20006 Louis J. Carter, Esq., Chairman

• Joan Holt, Project Director Administrative Judge Indian Point Project Atomic Safety and Licensing New York Public Interest Board Pesearch Group 7300 City Line Avenue 9 Murray Street Philadelphia, Pennsylvania 19151 New York, N.Y. 10007 l

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Dr. Oscar H. Paris

• John Gilroy, Ecstchester Administrative Judge Coordinator Atomic Safety and Licensing Indian Point Project U.S. Nuclear Pegulatory New York Public Interest Connission Fesearch Group Washington, D.C. 20555 240 Central Avenue White Plains,13ew York 10606 Mr. Frederick J. Shon

• Janice Moore, Esq.*

Adrinistrative Judge Counsel for 11RC Staff Atonic Safety and Licensing Office of the Executive Board Legal Director U.S. !!uclear Pegulatory U.S. 1;uclear Regulatory Connission Connission Wa shing ton , D.C. 20555 Washington, D.C. 20555 Jeffrey I'. Blun, Esq.* Charles J. Maikish, Esq.

New York University Law Litigation Civision School The Port Authority of 423 Vanderbilt Fall New York and 1:ew Jersey 40 Washington Square South one World Trade Center

!!ew York , 10.Y. 10012 New York, N.Y. 10048 Marc L. Parris, Esq. Ezra I. Bialik, Esq.

Eric Thorson, Esq. Steve Leipriz, Esq.

County Attorney Environental Protection Bureau County of Pockland I;ew York State Attorney 11 tiew 11enstead Road General's Office New City,1:.Y. 10956 Two World Trade Center New York, ti.Y. 10047 Alfred B. Del Bello Joan Miles

• hestchester County Executive Indian Point Coordinator Kestchester County I?ew Yerk City Audubon Society 148 Martine Avenue 71 We.t 23rd Street, Suite 1828 White Plains, N.Y. 10601 tiew York, fl.Y. 10010

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Creater 11ew York Council on Atomic Safety and Licensing Energy Board Panel c/o Dean P. Corren, U.S. 1:uclear Pegulatory Director Connission Ucw York University Washington, D.C. 20555 26 Stuyvesant Street tiew York, I;.Y. 10003 I

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Mayor George V. Begany Atomic Safety and Licensing Village of Duchanan Appeal Board Panel 236 Tate Avenue U.S. Nuclear Pegulatory Euchanan, N.Y. 10511 Commission Washington, E.C. 20555 Andrew S. Foffe, Esq. Conorable Richard L. Brodsky new York State Assembly Menber of the County Albany, N.Y. 12248 Legislature Westchester County County Office Building White Plains, N.Y. 10601 Benee Schwartz, Esq. Pat.Posner, Spokesperson

• Paul Chessin, Esq. Parents Concerned Abcut Laurens E. Schwartz, Esq. _

Indian Point Pargaret Cppel, Esq. P.C. .Dox 125 Botein, Hays, Sklar & Herzberg Croton-on-Hudson, N.Y. 10520 200 Park Avenue New York, U.Y. 10166 Stanley D. Klimberg Charles A. Scheiner, Co General Counsel Chairperson Uew York State Energy Office Westchester People's Action 2 Bockefeller State Plaza Coalition, Inc.

Albany, New York 12223 P.O. Box 488 Khite Plains, N.Y. 10602 Honorable Futh Messinger Alan Latman, Esq.

Member of the Council of the 44 Sunset Drive City of New York Croton-on-Hudson, N.Y. 10520 District No. 4 City Hall New York, New York 10007 Richard M. Hartznan, Esq. Zipporah S. Fleisher

• Lorna Salznan West Branch Conservation Friends of the Earth, Inc. Association l 208 Uest 13th Street 443 Buena Vista Road i New York, N.Y. 10011 Ucu City, N.Y. 10956 l

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Commission New City,11.Y. '

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