ML20062H958
| ML20062H958 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 07/27/1982 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| References | |
| CLI-82-15, NUDOCS 8208160223 | |
| Download: ML20062H958 (30) | |
Text
4 00t<ETED UNITED STATES OF AMERICA 'JS GC NUCLEAR REGULATORY COMMISSION "o2 Jit 27 All :r' Commissioners:
CFFICE OF SECa:D. .
Nunzio J. Palladino, Chairman 00CKETING & SEFvit:t.
Victor Gilinsky BRANCH John F. Ahearne Thomas M. Roberts James K. Asselstine SEiiVD JUL271Sg2
)
In the Matters of CONSOLIDATED EDIS0N 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)
MEMORANDUM AND ORDER (CLI-82-15)
I. Background In a petition dated September 17, 1979, the Union of Concerned Scientists (UCS) requested that the Commission revoke the Indian Point Unit 1 license and suspend operations at Indian Point Units 2 and 3. On February 11, 1980, the Director of Nuclear Reactor Regulation issued a decision pursuant to 10 CFR 2.206 granting in part and denying in part the petition. The Director granted that part of the petition calling for revocation of the license for Unit 1, and also required the licensees to implement certain interim measures in regard to Units 2 and
- 3. He denied that part of the petition requesting suspension of the licenses for these units.
9 8208160223 820727 PDR C
ADOCK 05000247 0
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2 On May 30, 1980, the Commission exoressed its intent to conduct a discretionary proceeding in the vicinity of the Indian Point Units and initiated an informal proceeding "for the purpose of determining, on an expedited basis, the issues which the adjudicatory proceeding is to address, and the criteria to be used for the ultimate decision in that proceeding. Consolidated Edison Co. of New York (Indian Point, Unit 2) and Power Authority of the State of New York (Indian Point, Unit 3),
Docket Nos. 50-247 and 50-286, unpublished order dated May 30, 1980, slip op. at 3 (emphasis added). On January 8,1981, the Comission issued an Order which set forth the questions it wished addressed in this proceeding and the procedures to be followed.1/
1/ Consolidated Edison Co. of New York, Inc. (Indian Point, Unit 2) and the Power Authority of the State of New York (Indian Point, Unit 3), CLI-81-1, 13 NRC 1 (1981).
The questions posed by the Commission in its January 8, 1981 order ,
were:
- 1. What risk may be posed by serious accidents at Indian Point 2 and 3, including accidents not considered in the plant's design basis, pending and after any improvements described (2) and (4) below?
- 2. Wnat improvements in the level of safety will result from measures required or referenced in the Director's Order to the t licensee, dated February 11, 1980? (A contention by a party l that one or more specific safety measures, in addition to i those identified or referenced by the Director, should be required as a condition of operation of the facility or facilities, would be within the scope of this inquiry.)
- 3. What is the current status and degree of conformance with NRC/ FEMA guidelines of state and local emergency planning within a 10-mile radius of the site and, of the extent that it is relevant to risks posed by the two plants, beyond a 10-mile
[Continuedonnextpage]
3 In the January 8,1981 Order, the Commission set out the purpose of the Special Proceeding by stating that its primary concern was "the 1/ [ Continued from preceding page]
radius? In this context, an effort should be made to establish what the minimum number of hours warning for an effective evacuation of a 10-mile quadrant at Indian Point would be. The FEMA position should be taken as a rebuttable presumption for this estimate.
- 4. What improvements in the level of emergency planning can be expected in the near future, and on what time schedule, and are there other specific offsite emergency procedures that are feasible and should be taken to protect the public?
- 5. Based on the foregoing, how do the risks posed by Indian Point Units 2 and 3 compare with the range of risks posed by other nuclear power plants licensed to operate by the Comission?
(The Board should limit its inquiry to generic examination of '
the range of risks and not go into any site-specific examination other than for Indian Point itself, except to the '
extent raised by the Task Force.)
- 6. What would be the energy, environmental, economic or other consequences of a shutdown of Indian Point Unit 2 and/or Unit 37
- 7. Does the Governor of the State of New York wish to express an official position with regard to the long-term operation of the units?
_Id. 13 NRC at 7-8.
Questions 1 and 2 were modified and made more specific in the Commission's Order of September 18, 1981. These questions now read:
- 1. What risk may be posed by serious accidents at Indian Point 2 and 3, including accidents not considered in the plants' design basis, pending and after any imorovements described in (2) and (4) below? Although not requiring the preparation of an Environmental Impact Statement, the Commission intends that the review with respect to this question be conducted consistent with the guidance provided the staff in the
[ Continued on next page]
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4 extent to which the population around Indian Point affects the risk posed by Indian Point as compared to the spectrum of risk posed by other 1_/ [ Continued from preceding page]
Statement of Interim Policy on " Nuclear Power Plant Accident Considerations under the National Environmental Policy Act of 1969;" 44 FR 40101 (June 13, 1980). 5/
- 2. What improvements in the level of safety will result from measures required or referenced in the Director's Order to the licensee, dated February 11, 1980? (A contention by a party that one or more specific safety measures, in addition to those identified or referenced by the Director, should be required as a condition of operation would be within the scope of this inquiry if, according to the Licensing Board, admission of the contention seems likely to be important to resolving whether (a) there exists a significant risk to public health and safety, notwithstanding the Director's measures, and (b) the additional proposed measures would result in a significant reduction in that risk.)
5/
In particular, that policy statement indicates that:
Attention shall be given both to the probability of 7 occurrences of releases and to the environmental consequences -
of such releases; The reviews "shall include a reasoned consideration of the environmental risks (impacts) attributable to accidents at the particular facility or facilities. . . .";
"Approximately equal attention should be given to the probability of occurrence of releases and to the probability of occurrence of the environmental consequences. . . ."; and !
Such studies "will take into account significant site and plant-specific features. . . ."
Thus, a description of a release scenario must include a discussion of the probability of such a release for the specific Indian Point plants.
Id 14 NRC at 612-13.
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5 nuclear plants." Id_., 13 NRC at 6. Finally, on September 18, 1981, the Comission issued another Order in which it further clarified both the issues that it wished addressed and the procedures to be followed in the hearing. Id., CLI-81-23, 14 NRC 610 (1981).
II. PASNY's Appeals2 /
A. General In the order we issue today we address primarily a series of pleadings filed by the Power Authority of the State of New York (PASNY),
licensee of Unit No. 3.3_/ PASNY asks us by y of directed certification to stay or dismiss the evidentiary hearing, and to rule on whether the Licensing Board below has misconstrued the Commission's ,
instructions in its admission of contentions. PASNY has also appealed ;
pursuant to 10 CFR Q 2.714a the Licensing Board's rulings admitting UCS and several other intervenors into the evidentiary proceeding, for reasons to be outlined below, we rule as follows:
(1) PASNY's appeal of the Licensing Board's admission of intervenors is denied.
! (2) PASNY's petition for directed certification of its request for stay or dismissal is denied.
-I We have received letters from PASNY and UCS/NYPIRG, both dated l
July 19, 1982, but we have not entertained either letter.
3_/ In Part III we rule on a UCS/NYPIRG Motion for Reconsideration; in l
Part IV we rule on a request of the Village of Buchanan, N.Y.
i
6 (3) PASNY's petition for directed certification of its charges that the Licensing Board below has exceeded or misapplied its jurisdiction in admitting contentions is denied, because we provide the Board with further guidance on this matter.
B. Rulings on Admission of Intervenors
- 1. Standing
- a. UCS The Board ruled that UCS was entitled to intervene as a matter of right or, alternatively, as a matter of discretion. PASNY appeals this ruling pursuant to 10 CFR 9 2.714a, arguing that the Commission should reverse the Board and deny the UCS petition to intervene. In PASNY's view the Board should have granted intervention on neither ground. The NRC staff agrees with PASNY that UCS is not entitled to intervene as a matter of right, but unlike PASNY believes that discretionary intervention is warranted. Both the staff and PASNY, relying upon Health Research Group v. Kennedy, 82 F.R.D. 21 (D.D.C. 1979)
(hereinafter HRG), urge the Commission to deny UCS intervention as a matter of right. According to the staff and PASNY, UCS lacks standing to intervene because it has " sponsors" rather than " members or their functional equivalents."
The Commission has not reviewed these arguments and thus does not reach a conclusion on the correctness of the Licensing Board's ruling on standing as a matter of right. The Commission does not have to reach
7 this issue here. Under the circumstances of this case, the Commission agrees that discretionary intervention is warranted.
- b. Rockland Citizens for Safe Energy (RCSE)
PASNY also appeals the Licensing Board's grant of RCSE's petition to intervene, arguing that RCSE failed to establish a nexus between itself and those it seeks to represent. PASNY advances this argument notwithstanding that RCSE provided the Licensing Board with evidence of two members living near the plant who authorized RCSE to represent their interests. We believe that the Board's ruling was correct.
- c. Greater New York Council on Energy (GNYCE)
The Licensing Board granted the intervention petition of GNYCE in an Order of April 23, 1982. PASNY in a May 10, 1982 pleading incorporates by reference the standing arguments in its April 19, 1982 pleading. It appears to us that GNYCE is similarly situated to RCSE in that it provided evidence of an individual member near the plant who authorized GNYCE to represent him. That being so, we see no reason to disturb the Board's ruling on this ground.
- 2. Intervenors' Views, Purposes, and Conduct PASNY argues, citing no legal authority whatsoever, that the views of certain intervenor groups on nuclear issues, as well as their conduct outside this proceeding, should preclude their participation in this proceeding. As the staff notes in its response to PASNY's argument, there is nothing in 10 CFR 5 2.714 or the caselaw interpreting that rule which permits licensing boards to exclude certain groups because of
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8 1 1 their opinions on nuclear power, either generally or as related to i l t specific plants. Staff Response of May 4, 1982, at 18. Likewise, there l is no Commission rule prescribing the conduct of any party .(other than !
i licensees or others subject to our regulatory jurisdiction) outside our i i
f proceedings. PASNY's argument here is without merit. !
t
! t j 3. The Ability of the Intervenor Groups to Represent !
Their Members Adequately i i
PASNY argues that'the Licensing Board erred in granting the e intervention petitions of New York Public Interest Research Group f;
! (NYPIRG), Westchester People's Action Coalition (WESPAC), and Friends of !
- - the Earth (F0E) because (1) the interests these groups seek to protect
. are not germane to the purposes of each group, and (2) their members' ;
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interests are too diverse for adequate representation by these groups.
! }
! In support of these argunents PASNY relies primarily upon Hunt'v. i i
Washington State Apple Advertising Commission, 432 U.S. 333 (1977), i Associated General Contractors v. Otter Tail Power Co., 611 F.2d 684 j (8th Cir. 1979), and HRG, supi; i As for the first argument -- that the interests that F0E, WESPAC ;
l and NYPIRG seek to protect are not germane to the purposes of each -- we l F
i agree with the staff (Brief at 20-21) that the record in the proceeding :
gives ample indication that the purposes of these organizations are i I substantially related to the subject of this litigation. Thus we reject [
PASNY's argument on this ground.
PASNY's second argument is that the interests of F0E, WESPAC and I NYPIRG members are so diverse as to preclude adequate representation. f F
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9 The case most heavily relied upon by PASNY, Associated General Contractors, supra, is of little relevance to the present case. In Associated General Contractors, the court held that where the financial interests of a group of contractors was so diverse that the outcome of pending litigation would benefit some and harm others, a single asscciation could not purport to represent the interasts of all the members of the group. PASNY appears to argue that an organization which has wide ranging interests may not represent the interests of all members of the group. PASNY's brief fails to demonstrate that the wide i ranging interests it lists will result in such a circumstance.
- 4. The Board's Denial of PASNY's Request for an Evidentiary Hearing on Preliminary Matters ,
PASNY asserts that the Board failed to carry out its duty of ensuring a fair and impartial hearing by refusing PASNY's request to conduct an evidentiary hearing regarding the practices and membership l
policies of the intervanor groups. PASNY relies upon Consumers Power ,
i ,
l Co. (Midland Plant, Units 1 and 2), LBP-78-27, 8 NRC 275 (1978) in t
making this argument, arguing that it has bona fide doubts regarding UCS membership and "Intervenor's scaremongering." As we have already
. disposed of PASNY's arguments as to conduct outside NRC proceedings and to UCS standing, we see no need for an evidentiary hearing on these matters. Indeed, such a hearing would no doubt detract from the I
possibility of an expeditious resolution of the questions we have asked of the Board.
10 For all of the above reasons, we see no reason to disturb the Licensing Board's rulings with regard to its grant of the petitions to intervene.
C. Stay or Dismissal <
PASNY on April 22, 1982 asked us to exercise our discretion to take review pursuant to 10 CFR 6 2.718(i) of a March 29, 1982 Licensing Board order denying a PASNY motion for stay or dismissal of this proceeding.
" Licensees' Motion for Directed Certification of Motion for a Stay of Commission's Orders of January 8,1981 and September 18, 1981 or for Dismissal of this Proceeding or, In the Alternative, for Certification to the Commission" (hereinafter " Motion").
The essence of PASNY's motion for stay or dismissal of the proceeding appears to be its long-held position that the special proceeding should never have been instituted in the first place, and that it should be terminated as soon as possible. As the Licensing Board recognized, this argument and the principal supporting arguments have been articulated before, and we have rejected them before. Since the Commission has directed the institution of the proceeding, and has rejected requests that the proceeding be terminated, PASNY's assertion that the Licensing Board erred in refusing to stay or dismiss the proceeding (a course of action which, if adopted, would have constituted flagrant disregard of the Commission's directions to the Board) borders on the frivolous. We believe that at this point, the interests of all concerned would best be served by the expeditious conduct of the proceeding.
11 D. Rulings on Contentions On May 10, 1982 PASNY and Consolidated Edison (the latter was not a party to the other PASNY requests described above) asked us to review pursuant to 10 CFR 52.718(i) a Board order of April 23, 1982 ruling on contentions to be litigated in the adjudicatory proceeding. " Licensees' ,
Petition for Directed Certification Pursuant to 10 CFR @ 2.718(i) and for Waiver of 10 CFR s 9.103" (hereinafter " Petition"). The NRC staff -
supports licensees' petition ("NRC Staff Response to Support of Licensees' Request for Certification and for Waiver of 10 CFR 5 9.103,"
dated June 1, 1982), and UCS/NYPIRG oppose the petition ("UCS/NYPIRG Opposition to Licensees' Petition for Directed Certification of Issues Arising from the Atomic Safety and Licensing Board's Order of April 23, 1982," dated May 25,1982). We have an inherent supervisory power over the conduct of adjudicatory proceedings, including the authority to provide guidance on the admissibility of contentions before licensing boards. See Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-77-8, 5 NRC 503, 516-17 (1977); United States Energy Research and Development Administration (Clinch River Breeder Reactor Plant), CLI-76-13, 4 NRC 67, 75-76 (1976). In addition, because this is a special proceeding being held at the Commission's direction, we have an added responsibility to insure that our policies are clearly g understood. The filings before us and, more importantly, our own review of the Board's opinion, convinces us that exercise of our supervisory authority is warranted in this instance. In particular, we believe that !
guidance is needed on admissibility of issues, applicability of 10 CFR i
12 9 2.758, and treatment of accident probability and consequences in testimony.
- 1. Admissibility of Issues In our September 18, 1981 Order (CLI-81-23, 14 NRC 610), we provided guidance to the Board and the parties regarding admissibility of issues.in the special proceeding and the application of 10 CFR 5 2.714. We stated that the Board would not be bound by 10 CFR Q 2.714 so that it could be " empowered only to accept and formulate, after consultation with the parties, those contentions which seem likely to be important to resolving the Commission's questions on pages 9-10, and ;
thereby to assure that the proceeding remains clearly focused on the issues set forth in this Order." It has become clear to us that our instructions are not being applied by the Licensing Board. Our intent was not that the requirements of 10 CFR 5 2.714 be dispensed with or to encourage contentions challenging the Commission's regulations, but that additional requirements be applied to admission of contentions to assure a focused proceeding. In particular, we had in mind that the Board would, first, assure itself that proffered contentions included a statement of bases and that both the contentions and bases were stated with reasonable specificity, and second, further screen out those contentions which, while complying with 5 2.714, did not seem likely to be important in answering our questions. In this latter regard, we had in mind that the Board would itself redraft the contentions, screening :
out those issues which, in its judgment, would not contribute materially to the resolution of the Connission questions in light of the stated i
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13 purpose of the proceeding, i.e., the extent to which nearby population affects the risk posed by Indian Point as compared to the spectrum of risks posed by other nuclear power plants. In light of this purpose, s the Board is expected to screen out those issues which, in its judgment, would make only a minor contribution to the Commission's goal, ,
incommensurate with the time and resources required to address them.
Moreover, we intended some special considerations regarding admission of contentions under question 2, which asks whether safety measures, in addition to those identified or referenced in the Director's February 11, 1980 Order, should be required. In addition to assuring compliance with 10 CFR 9 2.714 before admitting such contentions, the Board must make a threshold finding for each such contention whether "(a) there exists a significant risk to public health and safety, notwithstanding the Director's measures, and (b) the additional proposed measures would result in a significant reduction in that risk." This finding would be based on written material provided by l the sponsor of the proposed measure.
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- 2. Applicability of 10 CFR Q 2.758 In our September 18, 1981 Order, we did not address specifically the application of 10 CFR 9 2.758 which generally precludes litigation of rule challenges in adjudications. In its April 23, 1982 Order, however, the Licensing Board indicated that 10 CFR 52.758 would not -
apply to contentions related to the Commission's questions. The Licensing Board based this conclusion on footnote 4 of the Commission's l September 18, 1981 Order. Order of April 23, 1982 at 12, note 2; l
i
14 Memorandum (To Clarify the Record) of April 27, 1982, at 2. The Licensing Board erred in its interpretation of this footnote and thus in its ruling on the applicability of Section 2.758 to the contentions in this proceeding. In light of the fact that application of Section 2.758 to this proceeding will help keep the proceeding focused on the Comission's questions, the Comission has decided to provide guidance.
We agree with the staff's formulation: "where the Comission intended that certain of its regulations be subject to challenge, it explicitly indicated this intent by framing questions which challenge !
the regulations." Staff Response of June 1, 1982, at 20. Under the Comission's questions, a challenge to the regulations should occur only to a limited extent, as described below.
The Comission expected that risk assessments submitted by parties in response to Question 1 might include elements not required by or addressed in the regulations since an assessment of risk is only indirectly related to the regulations. Thus, for example, an analysis prepared by a party might take into account protective actions not required by the NRC.
Question 2, to the extent the two-pronged test is met, permits !
contentions which argue for safety measures in addition to those presently required under the regulations.
Question 3 deals with compliance with Comission emergency planning regulations and supplemental NRC/ FEMA emergency planning guidance. The question starts with an explicit reference to "the status and degree of conformance with NRC/ FEMA guidelines." The Commission expected primarily a description of plans and capabilities in response to this
15 question, and did not contemplate a challenge to the Comission's regulations.
The Comission's regulations advise that, generally, the plume exposure pathway EPZ for nuclear power plants shall consist of an area about 10 miles (16 km) in radius and the ingestion pathway EPZ shall consist of an area about 50 miles (80 km) in radius. The exact size and configuration of the EPZs surrounding a particular nuclear power reactor shall be determined in relation to local emergency response needs and capabilities as they are affected by such conditions as demography, topography, land characteristics, access routes, and jurisdictional boundaries.
10CFRQ50.47(c)(2).
The Comission intended to address the plume exposure pathway EPZ in Question 3. That EPZ is to be about 10 miles. However, the exact size and configuration can be affected by local conditions. Under Question 3 the Board was to address whether the high population density posed by the two plants is such a local condition. E. 10 CFR Part 50, Appendix E, note 2. -
! Question 4 has two parts. First, the question asks what improvements in emergency planning can be expected in the near future and on what time schedule. In response to this part the Comission expected a description of plans and capabilities of the licensee and state and local governments. The second part deals with other " specific offsite emergency procedures that are feasible and should be taken to protect the public." Here we did have in mind the possibility that additional emergency planning measures, not required by NRC or FEMA, l could be raised for Indian Point as prudent risk-reduction measures in light of the risk posed by Indian Point as opposed to the spectrum of
16 risks posed by other nuclear plants. In this sense a " challenge" to NRC emergency planning regulations, as applied to Indian Point, was ,.
contemplated. However, parties must first provide a sound basis for this further exploration. This element is missing from the Board's orders.
Since Question 5 is "[b]ased on the foregoing," it does not provide an independent basis for a challenge to the regulations. Question 6 is once again descriptive, and Question 7 does not relate to the parties and the formulation of contentions.
- 3. Treatment of Accident Probability and Consequences i in Testimony In our September 8,1981 Order we stated that "a description of a release scenario must include a discussion of the probability of such a release for the specific Indian Point plants." This direction (and the Commission discussions which the Board has used) made clear that this <
particular instruction was to govern the preparation and filing of parties' testimony. The Board has not so required, in direct contradiction to the Commission's direction. Any testimony on accident .
consequences for Indian Point must include a discussion of the probability of the accidents leading to the proposed consequences. This discussion must be sufficient to convince the Board that the testimony addresses accidents that substantially contribute to overall risk. i Testimony not meeting this test will not materially contribute to answers to the Commission's questions and should not be admitted.
17 We remand to the Board for expeditious reconsideration of its rulings as to the admissibility of all of the contentions admitted to the Special Proceeding. Additionally, we expect the Board to reformulate the contentions in accordance with this guidance. That includes the rejection of contentions previously admitted which do not fall within the scope of this proceeding as defined by the Commission.
III. UCS/NYPIRG Petition for Reconsideration In our January 8,1981 Memorandum and Order we observed that a satisfactory emergency plan for Indian Point was not then in place. 13 NRC at 3. On June 7, 1982 we received a "UCS/NYPIRG Motion for Reconsideration of Commission Ruling Allowing Interim Operation and for Issuance of a Show Cause Order Against the Licensees Prior to Commencement of the Evidentiary Hearing on the Safety of the Indian Point Nuclear Power Plants" (Motion). UCS/NYPIRG argue in their motion that new evidence concerning emergency planning for Indian Point warrants reconsideration of our earlier decision to allow the plant to continue operation pending the issuance of recommendations by the Licensing Board conducting the investigatory proceeding and our decision on those recommendations. UCS/NYPIRG request us to initiate a proceeding pursuant to 10 CFR s 2.202 for the licensees to show cause why we should not revoke their licenses for failure to comply with our emergency planning rules.
If the UCS/NYPIRG argument is a general challenge to emergency planning, then it should be referred to the staff to be dealt with pursuant to 10 CFR 2.206. If the issues are specifically tied to high
18 population, then they should be cast in a form addressing the specific questions of the Commission Order.
IV. Request by the Village of Buchanan as to Location of Hearing The Village of Buchanan, N.Y., on June 18, 1982 filed an " Emergency Petition for Directed Certification . . ." which asked us to order the Board to conduct its hearings inside the 10-mile EPZ. Licensing Boards '
have broad discretion to regulate the course of proceedings. See 10 CFR ;
9 2.718(e). We hesitate to overrule a board on a question left to its discretion unless there has been an abuse of its power. See, e.g., Loga Island Lighting Co. (Shoreham Nuclear Power Station), ALAB-39, 4 AEC 727.
4 (1971). As we do not believe that the board has abused its discretion in conducting the hearing eight miles outside the 10-mile EPZ, we deny the request.
The separate views of Chairman Palladino and Commissioners ~ .
Gilinsky, Ahearne, and Asselstine are attached. The separate views-of Commissioner _ Roberts may follow.
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19 ItissoORDERED.U' F the Com
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4EE I, SAMUEL J:-C4fl LK Secretary of the Comissia.i 4kg1E'S 3 q q';) '
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Dated at Washington, D.C.
this 27th day of July,1982. .
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i 4j Comissioner Gilinsky was not present when this Order was affirmed, but had previously indicated his partial approval of this Order.
Had Comissioner Gilinsky been present, he would have affirmed his prior vote.
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, ,I, s SEPARATE STATEMENT BY CHAIRMAN PALLADINO I disagree with Comissioner Asselstine that the Commission's decision constit'Jtes "an unnecessary, unwarranted and inappropriate interference...in the Board's conduct of this proceeding."
All Commissioners share a concern about the focus of the proceeding, and I believe that changes are necessary.
I believe the Board will benefit from having a cicar directive, rather than a more hortatory message, to reexamine tnc contentions already _
admitted. In the case of theitwo-pronged test for Question 2, I _believe
.the reformulation is necessary if testimony is to be appropriately limited.
I also differ in that I do not agree the present guidance "goes beyond a fair reading" of our previous guicance (i.e., I do not believe we have placed new restrictions on the Board). Our prior order's sought to have the Board concentrate on the significant, and the burden of the guidance.
in our decision today is to that end. -
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SEPARATE VIEWS OF COMMISSIONER GILINSKY I r
a I am in general agreement with the views expressed by
- s j Commissioner Asselstine regarding the admission of l
. contentions to this proceeding.
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ADDITIONAL VIENS OF COMMISSIONER AHEARNE Commissioner Ahearne no'tes that the Commission majority j supporting this order consists of those members who drafted, negotiated, discussed and supported the Commission order l
that provided the final Commission guidance to the Board.
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Commissioner Asselstine was not a member of the Commission during this period.
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SEPARATE OPINION OF COMMISSIONER ASSELSTINE, CONCURRING IN PART AND DISSENTING IN PART Summary I concur in sections I, II A, B and C, III and IV of the order issued by the Commission majority. However, ,for the reasons set forth in greater detail below, I strongly disagree.with section II D of the Commission order -- that portion of the order addressing the majority's rulings on contentions.
In my judgment, this portion of the majority's decision constitutes an unnecessary, unwarranted and inappropriate interference by the Commission in the Board's conduct of this proceeding. Although I have concerns regarding the lack of specificity in some of the contentions admitted by the Board, and although I agree with the majority that certain of these contentions on their face do not appear to adhere fully to the guidance provided by the Commission in its previous orders in this proceeding, I believe there are far preferable' alternatives to the approach adopted by the majority to assure that this proceeding remains focused on the issues framed by the Commission.
2 .
In other instances, I believe that section II D of the majority l order imposes new restrictions on the admission of contentions in this proceeding that go far beyond a fair reading of the guidance l
-2 contained in the Commission's previous orders. These new restrictions, coming more than ten months after the Commission's last directions to the Board, some three months after the Board's order formulating con-tentions and more than a month after the start of the evidentiary hearing itself, are very likely, in my judgment, to lead to substantial disruption and delay in this proceeding. Moreover, I believe that the lack of flexibility in the restrictions on the admission of contentions adopted by the majority may be incompatible with the investigatory nature of this special proceeding and may seriously limit the Board's ability to compile the information needed to address fully the issues specified in the Commission's previous orders in this proceeding. Finally, the new restrictions on the admissibility of contentions adopted by the majority will be perceived by the public -- and in at least some instances, I believe, correctly so -- as an effort by the Commission to change the rules of the proceeding in mid-stream in order to deny members l of the public the opportunity to raise issues that were permissible l , under the Commission's previous orders and that have already been accepted by the Board. This perception cannot help but undermine public confidence in the thoroughness and objectivity of this proceeding, in the fundamental fairness of the Commission's adjudicatory proceedings in general, and in the safety of the facilities that are the subject of this investigatory proceeding.
For these reasons, I cannot agree to the majority's rulings on contentions in this order.
l I
Discussion With respect to the first , ques, tion posed by the Commission, as modified by the Commission's September 18, 1981, order (CLI-81-23),
the majority concludes that the Board has not followed the Commission's
! direction to consider accident probability as well as consequences.
To address this concern, the majority directs the Board to require, as part of any testimony on accident consequences for Indian Point, a discussion of the probability of the accidents leading to the proposed consequences.
I agree that the Commission's September 18, 1981, order requires the Board, as part of its consideration of question 1, to consider the probability as well as the consequences of release scenarios for the Indian Point plant. I believe that the Commission expected the Board to answer this element of the Commission's question based upon written and oral testimony and the Board's expert judgment. I also believe the Board's inherent supervisory authority over the conduct of the proceeding'is sufficient to assure an adequate record on this aspect of the Commission's inquiry.
l l
With respect to the second question posed by the Commission, as
. modified by the Commission's September 18, 1981, order, the majority requires that before admitting contentions addressing this question, l the Board must make a threshold finding for each such contention, based I
4- ,
upon written material submitted by the proponent of the contention, that "(a) thera exist's a significant risk to publi.c health and safety, notwithstanding the Director's measures and (b) the additional proposed measures would result in a significant reduction in that risk."
I agree that the Commission's previous order required the appli-cation of this two-pronged test in considering contentions addressed to the Commission's second question, and that the two contentions addressing question 2 that were admitted by the Board's April 23, 1982, order do not on their face demonstrate application of the two-pronged test. However, I do not believe that it is necessary to require an evidentiary showing of compliance with the two-part test prior to the admission of contentions at this stage of the proceeding, after con-tentions have been e.dmitted by the Board and after the hearing has begun.
Rather, I believe that the Board has the inherent supervisory authority necessary to assure that both elements of the two-pronged test are addressed in testimony on the two admitted contentions relating to the second Commission question.
In addition, a number of the contentions admitted by the Board in its April 23, 1982, order are framed in very board terms. I am con-cerned that the breadth of these issues may create difficulties for the 2 . parties in preparing and filing testimony and may lead to testimony that is overly general and conclusionary.
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As is the case for my concerns regarding contentions related to the first and second Commission questions, discussed above, I believe that these concerns can be addressed by the use of the Board's inherent supervisory authority. In fact, the Board's April 23, 1982, order states the Board's intent to use this authority to ensure that the Commission's instructions to conduct a focused proceeding are carried out. For future hearing sessions, I believe the Board should adopt ,
procedures that will enable the parties to more sharply focus on the issues at the evidentiary hearing. Such procedures would include reformulation and refinement of the contentions following discussion with the parties regarding their more specific concerns, use of summary disposition, and alteration of the sequence for filing of prepared testimony so that the proponent of a contention files first and others are given ample time to prepare written rebuttal testimony.
In my view, this authority, together with other existing authority of the Board, is sufficient to address each of these concerns regarding the contentions in this proceeding. I therefore would decline to exercise the Commission's supervisory power over the conduct of this proceeding. In particular, I strongly disagree with the new restrictions on the admissibility of contentions adopted by the majority.
, The order issued by the majority imposes three new restrictions on the admissibility of contentions in this proceeding -- restrictions that were not clearly specified in The Commission's previous orders I
in this proceeding. First, the majority requires that the Board apply 10 CFR sectio'n 2.714 at th.is late stage of the proceeding. Thus, the proponent of each contention will now be required to provide a
b statement of the bases for the contention in order for the contention to continue to be admitted. Second, the majority ' requires that the Board determine for each contention, prior to admitting the contention, whether the contention will contribute materially to the resolution of the Commission's questions and what time and resources will be be required to address the contention. Third, the majority provides new, detailed directions to the Board on the extent to which the Board -
may accept contentions that include challenges to the Commission's regulations. The majority itself acknowledges that this latter restriction p was not addressed specifically in the Commission's previous orders e
in this proceeding. In particular, the majority's restrictions on ,
permissible challenges to the Commission's regulations in contentions I t
relating to the Commission's third question appear to represent a
- substantial narrowing of the scope of contentions that would otherwise be permissible under that question.
h
. Taken together, these new rest.rictions on the admission of contentions constitute an unwarranted and unnecessary interference by the majority in the management of the proceeding. Particularly with respect to the directions regarding challenges to the Commission's regulations, the majority's restrictions go beyond a fair reading of the Commission's previous guidance in this proceeding and deny parties the opportunity to raise issues that would have been admissible under the Commission's i
l previous orders. At a minimum, the, majority's order will require, before this proceeding can go forward, the wholesale review of each of the content, ions previously admitted by the Board and the submission of bases for each of these contentions. More than ten months have i
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passed since the Commission's last directions to the Board on contentions in this proceeding. More than three months have p~assed since the
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Board issued its' order establishing the contentions in this proceeding, -
and more than one month has passed since the commencement of evidentiary hearings. Testimony has been prepared by the parties, and'in some cases has already been presented, based upon the contentions admitted by the Board. The imposition of the majority's new restrictions on the admission of contentions at this late date will likely lead to disruption and delay in the proceeding.
Moreover, the majority's new restrictions on the admissibility of contentions may well be inconsistent with the investigatory nature of this special proceeding. For example, regardless of the sufficiency.
of the bases for contentions in this proceeding, the questions raised by the Commission are to be answered. If in the Board's independent view the contentions serve to join issue on the Commission's questions, then the lack of bases for the contentions become of little importance.
Inflexible restrictions on the admission of contentions such as those adopted by the majority may well serve to limit the Board's ability to obtain the information needed to address fully the. questions raised by the Commission. In its April 23, 1982, order, the Board recognized both its responsibility to obtain the information needed to answer 3
the Commission's questions and the Commission's instructions to conduct a proceeding focused on those questions. The Board, through its inherent supervisory powers, has the authority to carry out its responsibility and to assure a focused hearing, and is best able to make judgments on the formulation and admissibility of contentions consistent with those two objectives.
Finally, and perhaps most importantly, I believe that the majority's imposition of new restrictions on the admissibility of contentions at this late date will have unfortunate consequences for the public perception of our adjudicatory proceedings in general and of this pro-ceeding in particular. Specifically, the majority's restrictions will be perceived by the public--and in at least some instances, I believe, correctly so--as an effort by the Commission to change the rules of this proceeding in mid-stream in order to deny members of the public the opportunity to raise issues that were permissible under the Commission's previous orders. This perception cannot help but [
undermine public confidence in the thoroughness and objectivity of this proceeding, in the fundamental fairness of the Commission's ad-judicatory proceedings in general, and in the safety of the facilities that are the subject of this investigatory; proceeding.
For these reasons, I cannot agree to the majority's rulings on contentions in this order. Instead, having mentioned my concerns re-garding the need for greater specificity in the present formulation -
of some contentions and for attention to the Commission's previous guidance regarding questions 1 and 2, I would rely on the Board, using its supervisory powers, to conduct a focused proceeding th.at will provide i
the information needed to answer the Commission's questions. I am confident that the Board would use these powers wisely to meet those dual objectives. I also believe that this approach would avoid the unfortunate consequences I perceive in the majority's approach. ,
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