ML20054L771
| ML20054L771 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 07/02/1982 |
| 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 8207080463 | |
| Download: ML20054L771 (15) | |
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6 UNITED STATES OF AMERICA
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2 DaNUG &
O U2 NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD 6)
Before Administrative Judges:
Louis J. Carter, Chairman Frederick J. Shon Dr. Oscar H.
Paris
X In the Matter of CONSOLIDATED EDISON COMPANY OF NEW YORK, Docket Nos.
INC.
(Indian Point, Unit No. 2) 50-247 SP 50-286 SP POWER AUTHORITY OF THE STATE OF NEW YORK July 2, 1982 (Indian Point, Unit No. 3)
X l
LICENSEES' RESPONSE TO UCS/NYPIRG MOTION FOR AN ORDER COMPELLING LICENSEES TO PROVIDE CERTAIN DOCUMENTS ATTORNEYS FILING THIS DOCUMENT:
l Brent L.
Brandenburg Charles Morgan, Jr.
CONSOLIDATED EDISON COMPANY MORGAN ASSOCIATES, CHARTERED OF NEW YORK, INC.
1899 L Street, N.W.
4 Irving Place Washington, D.C.
20036 New York, New York 10003 (202) 466-7000 l
(212) 460-4600 8207080463 820702 PDR ADOCK 05000247 PDR O
D503
Pro)
. nary Statement Consolidated Edison Company of New York, Inc.
(" Con Edison"), licensee of Indian Point Station, Unit No.
2, and Power Authority of the State of New York (" Power Authority"),
licensee of Indian Point 3 Nuclear Power Plant (collectively the " licensees"), hereby respond to the UCS/NYPIRG Motion for an Order Compelling Licensees to Produce Certain Documents Requested in Formal and Informal Discovery and to Respond to UCS/NYPIRG Interrogatory Number 67 ("UCS/NYPIRG Motion").
The UCS/NYPIRG Motion broadly purports to seek discovery of documents relating to public perceptions of the licensees' " credibility."
Licensees filed a timely objection to the UCS/NYPIRG discovery request on the grounds that:
(a) it is too vague for response; (b) it appears to arise beyond any contention for which UCS/NYPIRG has been assigned lead or contributing intervenor status; and (c) it is beyond the scope of the Commission's Questions.
(Licensees' Responses to UCS/NYPIRG First Set of Interrogato-ries and Addendum Thereto at p. 60.)
Now, more than a month subsequent to licensees' filing of their objection, UCS/NYPIRG belatedly seeks not only to compel discovery, but to broaden its initial request to include actual production of documents which it earlier sought only to identify..
Licensees oppose the UCS/NYPIRG Motion for the reasons set forth in their original objection, and for the additional reason that the Motion is untimely.*
A.
The UCS/NYPIRG Motion Is Untimely The UCS/NYPIRG Motion, filed over a month subsequent to licensees' timely filing of their objection to UCS/NYPIRG Interrogatory 67, which underlies this motion, is clearly untimely.
10 CFR S 2.740(f) states without qualification:
If a deponent or party upon whom a request for production of documents or answers to interrogatories is served f ails to respond or objects to the request, or any part thereof, or f ails to permit inspection as requested, the deposing party or the party submitting the request may move the presiding officer, within ten (10) days after the date of the response or after failure of a party to respond to the request for an order compelling a response or insoection in accordance with the request.
(Emphasis added.)
i As the Board is undoubtedly aware, licensees have expended considerable effort to comply with the extensive and burden-some discovery requests herein.
Keeping objections to a minimum, licensees have already responded to hundreds of interrogatories and requests for admissions, and produced thousands of pages of documents.
It is noteworthy, in light of these many discovery requests, that this motion - concern-ing a single interrogatory - is the only instance in which any intervenor has moved to compel a response by licensees to an interrogatory or document request. I
It is particularly important in this expedited proceeding that strict adherence be given to discovery deadlines.*
The instant motion, more than three weeks tardy, is palpably improper.
Moreover, the UCS/NYPIRG Motion also seeks to expand the initial discovery request, which sought only identification of documents, to include actual production of the items sought.
This additional request comes more than seven weeks following the due date for filing of interrogatories and several weeks past the close of discovery under Commission Questions 3 and 4.
Hence, the UCS/NYPIRG Motion is an attempt to circumvent the Commission's Rules of Practice and the Board's discovery sche-dule herein.**
- Indeed, the Board has placed such importance on expediting discovery that it recently ordered that all filings concern-ing discovery requests shall be physically lodged with the Board and parties on or before the due date, not merely mailed on that date.
(June 3, 1982 Order at p. 3.)
Tne untimely UCS/NYPIRG Motion disregards the Board's directive that " discovery in this proceeding will be abbreviated and must be conducted efficiently" (April 2, 1982 Order at p.
41, n. 14).
- Any reliance by UCS/NYPIRG on the June 3, 1982 letter (the
" June 3 letter") from NYPIRG counsel Amanda Potterfield to Power Authority counsel David Pikus is misplaced.
That letter was written and delivered subsequent to the May 31 close of discovery under Commission Questions 3 and 4, and long after the filing of licensees' three-pronged objection to Interrogatory 67.
It specifically addressed only one of licensees' three objections.
(A copy of the June 3 letter is annexed to the UCS/NYPIRG Motion as Appendix A.) -_
The UCS/NYPIRG Motion should be denied for either of the above reasons alone.
B.
Licensees' Objection Should be Upheld The UCS/NYPIRG discovery request was initially met on May 18 with three valid objections based on (1) relevance and materiality; (2) vagueness; and (3) standing.
We submit that these objections should be upheld.
1.
The request is irrelevant, immaterial and beyond the scope of the Commission's Questions UCS/NYPIRG has consistently urged that its discovery request falls under Board Contention 3.4.
Nowhere, however, does UCS/NYPIRG indicate how the information sought is relevant to that contention.
Indeed, UCS/NYPIRG states only that " [i] f the documents and information sought by UCS and NYPIRG exist, their relevance is obvious" (UCS/NYPIRG Motion at p.
4),
without providing any support whatsoever for its conclusion.
In fact, a comparison of Contention 3.4 (or any of the conten-tions or Commission Questions) and Interrogatory 67 shows clearly that there is no connection and, hence, no relevance.
The instant motion seeks production of documents relating to subjective public perceptions of the licensees' credibility.
Contention 3.4, on the other hand, is limited.
solely to the licensees' dependability for notification of off-site governmental authorities.
It reads as follows:
The Licensees cannot be depended upon to notify the proper authorities of an emergency promptly and accurately enough to assure effective response.
(April 23, 1982 Order at p. 9.)
As Contention 3.4 recognizes, the off-site govern-mental authorities, not the licensees, are responsible for notifying the public in the event of a radiological emergency.
Licensees have no responsibility for notification of the public under either Commission regulations or the Indian Point emer-gency plans.
See 10 CFR Part 50, Appendix E (IV)(D)(3) ("[t]he responsibility for activating such a public notification system shall remain with the appropriate government authorities").
Hence, there is no connection between subjective public percep-tions of the " credibility" of the licensees and the licensees' abilities to effect proper notification in the event of an emergency.
Accordingly, subjective public perceptions of the licensees' credibility have no relation to the issues raised by l
Contention 3.4.*
Licensees further note that the State of New York, which we would be obligated to notify in the event of a radiological THcI3ent, has stated that " State experience with the report-ing of incidents from both Consolidated Edison and PASNY has been acceptable." (State of New York Answer to UCS/NYPIRG Interrogatory 13.)
Evidently recognizing the irrelevance of Interrogatory 67 to Contention 3.4, UCS/NYPIRG now belatedly seoks to connect it somehow to Contention 3.2.
Tnat contention, however, is equally unrelated:
1 Emergency planning for Indian Point Units 2 and 3 is inadequate in that the plans make erroneous assumptions about the j
response of the public and of utility employees during raliological emergencics.
(April 23, 1982 Order at p. 8).
Again, UCS/NYPIRG fails to state how subjective public perceptions of the licensees' credibility have any bearing on the response of the public to instructions from governmental officials, or on the actual response of utility employees.
Indeed, Interrogatory 67 is immaterial and irrele-vant to any issues raised by Commission Questions 3 and 4.
Those Questions are concerned only with the current status of emergency planning and specific, feasible off-site improve-ments.
While the licensees are aware of the Board's desire to gather as much information as is possible on those subjects, it is obvious that the UCS/NYPIRG Motion seeks wholly irrelevant information for purposes extraneous to this proceeding.
This is made clear in UCS/NYPIRG's so-called " amended" Interrogatory 67, which states that the information sought was developed "in __
0 conjunction with dispute over summer-winter rate differentials."
However the parties may choose to define the contours of Commission Questions 3 and 4,
" summer-winter rate differentials" are clearly not within them.
2.
The request is too vague for response.
Apparently conceding the vagueness of its initial request, UCS/NYPIRG purported to amend the request in its June 3 letter.*
The first paragraph of the " amended" re-quest, however, which contains the operative language, remains unchanged.
The new second paragraph simply narrows one such alleged study to "sometime before June 1981."
This obviously does little to overcome our vagueness objection.
The new third paragraph claims that a study was done in conjunction with a
" dispute over summer-winter rate differentials."
If anything, this demonstrates the complete irrelevance of the request, since
" summer-winter rate differentials" have nothing to do with this proceeding.
3.
Tne request appears to arise beyond any contention for which UCS/NYPIRG has been assigned lead or contributing intervenor status.
Tne Board has directed in the clearest of terms that
- This manner of attempted amendment was not only procedurally defective but untimely as well. _ _ _ _ _ _ _ _ _ _ _ _ _ _
e discovery may only be requested by intervenors assigned lead or contributing intervenor status on the contention to which such discovery relates:
Discovery may be had both on and by Contri-buting Intervenors as well as the Lead Intervenor listed for each contention.
(April 9, 1982 Order at p.
16.)*
UCS/NYPIRG has consistently asserted that it relied on Contention 3.4 to support this discovery request.
(See June 3 letter at p.
2.)
When advised by licensees' counsel of the procedures set forth in the April 9 Order, UCS/NYPIRG conceded that it is neither a lead nor contributing intervenor on that contention.**
- Even under this procedure, licensees have found themselves heavily burdened with hundreds of interrogatories, deposi-tions, requests for admissions, and so-called "inf ormal discovery" requests.
Any broader framework of discovery would make this proceeding - which involves nine intervenors, nine interested states, the Staff, and two licensees -
totally unmanageable.
- At that point, UCS/NYPIRG turned to intervenor Rockland Citizens for Safe Energy ("RCSE") and asserted that the information sought was also requested in an RCSE interroga-tory.
When asked by licensees' counsel to identify the specific RCSE interroga tory, counsel for UCS/NYPIRG re-viewed the RCSE interrogatories and conceded that the informa-tion was not requested therein.
In any event, RCSE has not moved to compel discovery and UCS/NYPIRG, of course, would have no standing to move on RCSE's behalf.
Now, apparently as an afterthought, UCS/NYPIRG attempts to fit its Interrogatory 67 within Contention 3.2, which UCS/NYPII1G admits is concerned only with assumptions about the response of the public and utility employees in an emergency.
As noted above, however, this contention is completely unrelated to any subjective public perceptions of the " credibility" of the licensees.
Moreover, this additional argument is simply untimely. )
1
Thus, by UCS/NYPIRG's own admission, it has no standing to request the discovery sought or, a_ fortiori, to move to compel discovery.
WHEREFORE, licensees respectfully urge that the UCS/NYPIRG Motion be denied in all respects.
l -
Respectfully submitted, Brent L.
Brandenburg g Charles Morgan, JV.
g Paul Colarulli Joseph J.
Levin, Jr.
CONSOLIDATED EDISON COMPANY OF NEW YORK, INC.
Licensee of Indian Point Unit 2 MORGAN ASSOCIATES, CHARTERED 4 Irving Place 1899 L Street, N.W.
New York, New York 10003 Washington, D. C. 20036 (212) 460-4600 (202) 466-7000 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 Dated:
July 2, 1982 l
UNITED STATES OF AMERICA TE Ef
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NUCLEAR REGULATORY COMMISSION p
ATOMIC SAFETY AND LICENSING BOARD T
6-JUL O pgp D H Before Administrative Judges:
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Louis J. Carter, Chairman Frederick J. Shon
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"'2 8 Seng,'.,7 Dr. Oscar H.
Paris
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In the Matter of
)
Docket Nos.
)
CONSOLIDATED EDISON COMPANY OF NEW YORK, )
50-247 SP INC. (Indian Point, Unit No. 2)
)
50-286 SP
)
POWER AUTHORITY OF THE STATE OF NEW YORK )
July 2, 1982 (Indian Point, Unit No. 3)
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of LICENSEES' RESPONSE TO UCS/NYPIRG MOTION FOR AN ORDER COMPELLING LICENSEES TO PROVIDE CERTAIN DOCUMENTS in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, this 2nd. day of July, 1982.
Docketing and Service Branch Ellyn R.
Weiss, Esq.
Office of the Secretary William S. Jordan, III, Esq.
U. S. Nuclear Regulatory Harmon & Weiss Commission 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 Research Group 7300 City Line Avenue 9 Murray Street Philadelphia, Pennsylvania 19151 New York, N.Y.
10007
e Dr. Oscar H. Paris
- John Gilroy, Westchester Administrative Judge Coordinator Atomic Safety and Licensing Indian Point Project U.S. Nuclear Regulatory New York Public Interest Commission Research Group Washington, D.C.
20555 240 Central Avenue White Plains, New York 10606 Mr. Frederick J. Shon
- Janice Moore, Esq.
Administrative Judge Counsel for NRC Staff Atomic Safety and Licensing Office of the Executive Board Legal Director U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Jeffrey M. Blum, Esq.*
New York University Law School 423 Vanderbilt Hall 40 Washington Square South New York, N.Y.
10012 Marc L.
Parris, Esq.
Charles J. Maikish, Esq.
Eric Thorson, Esq.
Litigation Division County Attorney The Port Authority of County of Rockland New York and New Jersey 11 New Hemstead Road One World Trade Center New City, N.Y.
10956 New York, N.Y.
10048 Ezra I.
Bialik, Esq.
Joan Miles Steve Leipsiz, Esq.
Indian Point Coordinator Enviromental Protection Bureau New York City Audubon Society New York State Attorney 71 West 23rd Street, Suite 1828 General's Office New York, N.Y.
10010 Two World Trade Center New York, N.Y.
10047 Greater New York Council on Alfred B.
Del Bello Energy Westchester County Executive c/o Dean R.
- Corren, Westchester County Director 148 Martine Avenue New York University White Plains, N.Y.
10601 26 Stuyvesant Street New York, N.Y.
10003 _ _ - _ _ _ _ _.
e Atomic Safety and Licensing Atomic Safety and Licensing Board Panel Appeal Board Panel U.S.
Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Andrcw S.
Roffe, Esq.
Honorable Richard L. Brodsky New York State Assembly Member of the County Albany, N.Y.
12248 Legislature Westchester County County Office Building White Plains, N.Y.
10601 Renee Schwartz, Esq.
Pat Posner, Spokesperson Paul Chessin, Esq.
Parents Concerned About Laurens R.
Schwartz, Esq.
Indian Point Margaret Oppel, Esq.
P.O.
Box 125 Botein, Hays, Sklar & Herzberg Croton-on-Hudson, N.Y.
10520 200 Park Avenue New York, N.Y.
10166 Stanley B.
Klimberg Charles A. Scheiner, Co-General Counsel Chairperson New York State Energy Office Westchester People's Action 2 Rockefeller State Plaza Coalition, Inc.
Albany, New York 12223 P.O.
Box 488 White Plains, N.Y.
10602 Honorable Ruth 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.
Hartzman, Esq.
Zipporah S.
Fleisher Lorna Salzman West Branch Conservation Friends of the Earth, Inc.
Association 208 West 13th Street 443 Buena Vista Road New York, N.Y.
10011 New City, N.Y.
10956 l i
^
o e
Mayor George V. Begany Judith Kessler, Coordinator Village of Buchanan Rockland Citizens for Safe 236 Tate Avenue Energy Buchanan, N.Y.
10511 300 New Hempstead Road New City, N.Y.
10956 Ms. Amanda Potterfield, Esq.**
Ruthanne G. Miller, Esq.
P.O.
Box 384 Atomic Safety and Licensing Village Station Board Panel New York, New York 10014 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Mr. Donald Davidoff Director, Radiological Emergency Preparedness Group Empire State Plaza Tower Building, RM 1750 Albany, New York 12237 WJ#3A Davi6 H.P1M Scrvice effected by hand.
Service effected by hand at the NYPIRG offices, 9 Murray Street, New York, New York. _ _ _ _ _ _