ML20058G484

Attempts to Clear Confusion of ASLB 820714 & 16 Telcons to Comm Ed.Conversation on 820714 Was Substantive.Discussions Re Merits of Motions or Issues Should Be Entertained Only W/All Parties Participating.W/Certificate of Svc

ML20058G484
Person / Time
Site:	Indian Point
Issue date:	07/27/1982
From:	Sohinki S CONSOLIDATED EDISON CO. OF NEW YORK, INC.
To:	Carter L Atomic Safety and Licensing Board Panel
References
ISSUANCES-SP, NUDOCS 8208030335
Download: ML20058G484 (7)

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@-bN{f %W W  ! f," "' Consolidated Edison Company of New York,Inc. .,

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BRANCH Louis J. Carter, Esq., Chairman Administrative Judge Atomic Safety and Licensing Board 7300 City Line ~ Avenue Philadelphia, Pennsylvania 19151

Dear Judge Carter:

At the July' 19 hearing session in this special proceeding, Mr. Levin, Counsel for the Power Authority, argued' that the Board had violated the .ex parte rule of the Commission,

_ 10 CFR Sec. 2.780, by failing to include a representative of the Power Authority in a teleptione conference which you ,,

initiated with me on Friday, July 16 concerning Con Edison's 1 responses to interrogatories from UCS regard-motiontocomp" ing Commissich Question 1. Your response to'Mr. Levin, at Tr. 3340, was that "(t)here was no issue of substance discussed in any telephone conversation," and therefore no violation of the gg parte rule.

Since I was then prohibited by you from making a statement on the record (Tr. 3341) , I felt compelled to write this letter because I believe there is now substantial confu-sion in the record concerning what transpired during the week of July 12. Specifically, the record does not reflect that

-you initiated two telephone conversations with me during that week, the first on Wednesday, July 14, and the second on Friday, July 16.

One of the unfortunate results of a failure to in-clude all affected parties on telephone conferences is the con-fusion which 'may follow about what transpired. Apparently, Mr. Levin's second-hand information concerning the two tele-phone conversations referred to above led him to confuse the discussion of July 14 with that of July 16, from both of which the Power Authority was excluded.

O'208030335 820727 l PDR ADOCK 05000247

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Louis J. Carter, Esq., Chairman 1 Administrative Judge July 27, 1982 i

Specifically as it relates to our July 14 conversation, I cannot accept your statement that there was "no issue of i substance discussed in any telephone conversation." I believe that statement misinterprets Commission practice regarding the ex parte rule, fails to consider prior Appeal Board advice 1 regarding that rule, and, (while I can accept your reading of the l Board's Order to me on July 16 as a non-substantive conversation) mischaracterizes the telephone conversation which you initiated j with me on July 14.

Pursuant to 10 CFR, Sec. 2.780, NRC officials are pro-hibited from requesting or entertaining off the record "any evidence, exolanation, analysis, or advice, whether written or -- ~

oral, regarding any substantive matter at issue in a proceeding ~

on the record then pending before the NRC . . ." (Emphasis supplied.) As you will recall, at the outset of July 14 tele-phone conversation, I noted that_I was not comfortable discuss-ing or making arguments with regard to con Edison's motion to ,,

compel responses to interrogatories on Commission Question 1 unless the other relevant parties were on the line. In this regard, prior to receiving your call, I had specifically informed your legal aide, Ruth Ann Miller, that I considered it_pecessary for Mr. Colarulli, Counsel for PASNY, Ms. Moore of the NRC Staff and Mr. Blum of UCS to participate. Your response was that since no one had objected to your previous order that Ms. Weiss of UCS call to provide you with a date by which responses to interrog-atories could be completed (see Tr. 3245) , you did not believe that anyone would object to your discussion with me concerning our pending motion.*

. With this background, and because I was prohibited by you from making a statement on the record, I must now respect-fully but emphatically disagree with any characterization of the July 14 conversation as non-substantive. At that time you requested and were presented with arguments on behalf of Con Edison regard.ing a motion that continues to have a potential Had I known in advance that a full discussion of UCS's po-sition with regard to the motion to compel would ensue between the Board and UCS Counsel, Con Edison would certainly have ob-jected to being excluded from that c,all.

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A'* ---,.

i Louis J. Carter, Esq., Chairman Administrative Judge July 27,1982

. serious impact on the rights of both licensees and UCS, It has been my consistent experience over the last ceven years of practice before the NRC that any conversation which has an effect on the rights of any party has been held in the presence of all affected parties, and that only the most minor procedur-al matters may be dealt with off the record without all parties participating. In this regard, the Appeal Board has previously

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made' clear thati ~

As a general matter, conference calls which include

- some parties and exclude others are to be avoided except in the case of the most dire necessity. (emphasis supplied.)

Puerto Rico Water Resources Authority (North Coast Nuclear Plant, Unit 1) , ALAB-313, 2 NRC 94, 96 (1976). .

The Appeal Board emphasized that Licensing Boards should rollow the above-advice _even if no substantive matter is discussed and the 59; parte rule is not technically violated. ..

2 URC at 96. North Coast is particularly instructive given your view that the July 14 call was non-sub tantive. In that case, the Applicant initiated a conference call with the Lic ensing Board and the staff but without the intervenors. Applicant's

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counsel informed the Board that the facility was being post-poned indefinitely. and that the applicant would respond on a given date to two related intervenor motions.* No other matters c

were dis'ussed. In view of the Appeal Board's decision that the conference call was inappropriate even though no argument

on the intervenor's motions was entertained, there can be no doubt that had such argument on the motions ensued, a clear violation of the ex parte rule would have been found.

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Since "the mere fact that there are non-participating parties is an incubator of possible suspicion and doubt,"

l 2 NRC at 96, con Edison respectfully suggests that no future argument or discussion concerning the merits of any motion or i

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The call initiated because the Licensing Board in that case had scheduled a prehearing conference, the need for which might be obviated by the information conveyed by the Applicant during the call.

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Louis J. Carter, Esq., chairman Administirative Judge July 27, 1982 issue in this proceeding be initiated or entertained by the Board unless all parties affected by the matter are afforded an opportunity to participate.

Sincerely, Stephen M. Schinki SMS:erf cc: Service List

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

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ATOMIC SAFETY AND LICENSING BOARD t.Y U i O'LWnh-a

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Before Administrative Judges: . 3EAN Louis J. Carter, Chairman Dr. Oscar H. Paris Frederick J. Shon

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x CONSOLIDATED EDISON COMPANY OF  : Docket Mos. 50-247-SP N EW YO RK , INC..(Indian Point, 50-286-SP Unit No. 2)  :

POWER AUTHORITY OF THE STATE OF  :

NEW YORK, (Indian Point, Unit No. 3) .  : ,

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CERTIFICATE OF SERVICE I certif y that I have served copies of Consolidated Edison's Responses to GNYCE'S First Set of Interrogatories on Question 6 on the following parties by deposit in the Untted States mail, postage prepaid, this 2nd day of July 1982.

Docketing and Service Branch Dr. Oscar H. Paris Of fice of the Secretary Administrative Judge U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Board Whshington, D. C. 20555 U.S. Nuclear Regulatory Commission Louis J. Carter, Esq., Chairman Washington, D. C. 20555 Administrative Judge Atomic Safety and Licensing Mr. Frederick J. Shon Board Administrative Judge 7300 City Line Avenue - Suite 120 Atomic Safety and Licensing Philadelphia, Pennsylvania 19151 Board U.S. Nuclear Regulatory Commission Washington, D. C. 20555 S

0

Janice Moore, Esq. Charles J. Maikish, Esq.

Of fice of the Executive Litigation Division

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Legal Director The Port Authority of U.S.11uclear Regulatory New York and New Jersey Commission One World Trade Center Washington, D. C. 20555 .New York, New. York 10048

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Paul F. Colarulli, Esq. Ezra I. Bialik, Esq.

Joseph J. Levin, Jr., Esq. Steve Leipsiz, Esq.

Pamela S. Horowitz, Esq. New York State Attorney Charles Morgan, Jr.,.Esq. General's Of fice Morgan Associates, ~ Chai-tered Two World Trade. Center 1899 L Street, N.W. New York,-New York 10047 Washington, D. C. 20036 Alf red B. Del Bello Charles M. Pratt, Esq. Westchester County Executive Thomas R. Frey, Esq. 14811artine Avenue Power Authority of the State White Plains, Uew York _

10601 of New York _ . . _ _ _ _ .

10 Columbus Circle Andrew S. Roffe, Esq. .

New York, New York 10019 New York State Assembly Albany, Nsw York 12248 Ellyn R. Weiss, Esq. _

William S. Jordan , 'II-I, Esq. -

Renee Schwartz, Esq'. ,,

Harmon & Weiss Paul Chessin, Esq.

1725 I Street, N.W., Suite 506 Laurens R.' Schwartz, Esq.

Washington, D. C. 20006 Botein, Hays, Sklar & Herzberg 200 Park Avenue Joan Holt, Project Director New York, New York ~10166 Indian Point Project New York Public Interest Stanley B. Klimberg Research Group - - Ne'w. York State - Energy Of f ice 9 Murray Street 2 Rockefeller State Plaza New York, New York 10007 Albany, New York 12223 John Gilroy, Westchester Ruth liessinger Coordinator Member of the Council of the Indian Point Project City of New York Nbw York Public Interest District #4 Research Group City Hall 240 Central Avenue New York, New York 10007 White Plains, New York 10606 Marc L. Parris, Esq.

Jeffrey M. Blum County Attorney New York University Law School County of Rockland 423 Vanderbilt Hall 11 New Hempstead Road Washington Square South New City, New York 10010 New York, New York 10012 a

,, Joan 1111es Alan Latman, Esq. l Indian Point Coordinator 44 Sunset Drive i llew York City Audubon Society Croton-on-!!udson, New York 10520 71 W. 23rd Street, Suite 1828 New York, New York 10010 Richard M. Hartzman, Esq. i Lorna Salzman, Greater New York Council' on, Friends of-the Earth, -Inc.  !

Energy 208 West 13th Street c/o-Dean R. Corren, Director? -

New York,-New York - 10011 New York University 26 Stuyvesant Street -

Zipporah S. Fleisher .

Ilew York, New York 10003 West Branch Conservation Association Atomic Safety and Licensing 443 Buena Vista Road Board -Panel -

New City, New. York 10956 U.S. Nuclear Regulatory Commission 11ayor -F.: Webster Pierce Wdshington, D. C. 20555 Village of Buchanan ~

236. Tate. Avenue . __

Atomic Safety and Licensing Buchanan, New York 10511 _

Appeal Board Panel U.S. Nuclear Regulatory -

Judith Kes'ler, s Coordinator Commission Rockland Citizens for Safe '-

Washington, D. C. 20555 Energy 300 New Hempstead Road Richard L. Brodsky New City, New York 10956

!! ember of the County Legislature _

Westchester County -

David H. Pikus,;Esq. _

County office Building Richard F..Czaja, Esq.

White Plains, New York 10601 330. Madison Avenue .

New York,.New York 10017 Pa t Posner, Spokesman Parents Concerned About Amanda Potterf ield, Esq.

Indian Point Box 384 P.O. Box 125 Village Station Croton-on-lludson, New York 10520 New York, New York 10038 Ch'arles A. Scheiner, Co-Chairperson Ruthanne G. Miller, E st] .

Westchester People's Action Atomic Safety and Licensing Coalition, Inc. Board Panel P.O. Box 488 U.S. Nuclear Regulatory White Plains, New York 10602 Commission Washington, D. C. 20555

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