ML20063M350

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Corrected Motion to Establish Briefing,Reply & Prehearing Conference Schedules Re Commission 820727 Memorandum & Order Directing ASLB to Reformulate Contentions.Certificate of Svc Encl
ML20063M350
Person / Time
Site: Indian Point  Entergy icon.png
Issue date: 08/31/1982
From: Brandenburg B
CONSOLIDATED EDISON CO. OF NEW YORK, INC.
To:
Atomic Safety and Licensing Board Panel
Shared Package
ML20063M349 List:
References
ISSUANCES-SP, NUDOCS 8209100274
Download: ML20063M350 (10)
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. UNITED STATES 0F AMERIC NUCLEAR REGULATORYpMQ Oh 04 .

BEFORE THE ATOMIC SAFETY AtJD ; , gEghNSFJOARD Louis J. Carter Ch ~ eva SERV!

Frederick J. '$h'onBRANCH Dr. Oscar H. Paris

_______________________________________x In the Matter of  :

Docket Nos. 50-247-SP CONSOLIDATED EDISON COMPANY OF NEW  : 50-286-SP YORK INC. (Indian Point, Unit No. 2)

POWER AUTHORITY OF THE STATE OF NEW YORK (Indian Point, Unit No. 3)  :

August 31, 1982

______________________.________________x CON EDISON'S MOTION TO ESTABLISH A BRIEFING SCHEDULE REGARDING THE REFORMULATION OF CONTENTIONS Consolidated Edison Company of New York, Inc.,

Licensee of Indian Point No. 2 (" Con Edison") hereby moves this Board for an order establishing a briefing schedule regarding the Commission-ordered reformulation of contentions in the captioned proceeding. On July 27, 1982, the Commission issued a Memorandum and Order (" July 27 Order") in which it directed as follows:

We remand to the Board for expeditious recon-sideration 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 8209100274 820902 .

{DRADOCK 05000247 PDR

3 of this proceeding as defined by the Commission.*

Following the receipt of the Commission directive, this Board suspended future hearings in this matter pending the reconsideration of contentions. In this connection, the Commission indicated that it was its intention in the January 8 ,

and September 18 Orders not to permit challenges to Commission regulations.except under.the circumstances explicitly set forth. Regarding contentions, the Commission directed that 10 CFR Part 2 should fully apply, with the additional require-ment of a higher relevancy threshold than would otherwise be used. The July 27 Order states that:

Our intent was not that the requirements of 10 CFR S 2.714 be dispensed with or to encourage contentions challenging the Commission's regulations, but that additional requirements be applied to admission of conten-tions to assure a focused proceeding. In particular, we 3

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 S 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, screen-ing out those issues which, in its judgement, would not contribute materially to the resolution of the Commission questions in light of the stated purpose of the proceeding, i.e., the extent to which nearby population affects the

  • Consolidated Edison Company of New York (Indian Point,

" Unit 2) and Power Authority of the State of New York (Indian Point, Unit 3), CLI-82-15, NRC ,

Docket Nos. 50-247, 50-286 (July 27, 1982), Slip op. at 17 o

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risk posed by Indian Point as compared to the spectrum of risks posed by other nuclear power plants. In light of this purpose, 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.

Con Edison respectfully submits that the Licensees' and the NRC Staff's memoranda of December 31, 1981 and February -

11, 1982 and the arguments made by these parties at the April 13-14 prehearing conference, will substantially assist in this exercise, the interpretation and applications of the Commission's January 8 and September 13 Orders contained in these memoranda being quite consistent with the guidance provided in the July 27 Order. Further briefing on implement-ing the July 27 Order would also, in Con Edison's view, assist the Board and the parties in focusing future efforts in this proceeding, expedite ips prompt completion, and reduce the likelihood of ra:J.;cace of the conditions which led to the July 27 Order.

Indeed, in its September 18, 1981 Order in this proceeding,* the Commission expressed the intention that the formulation of issues to be litigated be done "after consultation with the parties."** Nothing in the July 27 Order indicates a departure from that directive with regard to

    • Id. at p. 611

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the reformulation of issues currently being undertaken by the

Board.-

I For taese reasons, Con Edison believes that the most prudent course of action which could be followed under the unique circumstances of this case is for the Board to solicit ,

the views of all parties regarding those " proffered contentions" which are now believed to be admissible in light of the Commission's January 8, September 18 and July 27 Orders. We suggest that such a consideration by the Board of the positions of all parties following the Board's issuance of its proposed reformulation will aid the prompt consideration of those particular issues intended by the Commission to be addressed in this special proceeding. As clarified by the July 27 Order, the parties will be able to address the Board on the materiality of i

each contention to 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."

While Con Edison believes that the parties' views should be solicited regarding any Board-proposed reformulation of issues, we believe that Mr. Chilk's August 23, 1982 letter to the Board on behalf of the Commission makes it highly desirable for the" Board to postpone reformulation of-emergency planning

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(Commission Questions 3 and 4) issues in this proceeding until at least December of this year. In the August 23 letter, the Commission, through Mr. Chilk, noted that the NRC Staf f had

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started the "120-day clock" pursuant to 10 CFR S 50.54(s)

(2)(ii). Mr. Chilk continued that:

[Blased upon the Commission's perception that to hear testimony regarding what is likely to be a rapidly changing situation would be wasteful of the time and resources of the Board and the parties, the ,

r Commission believes that the Board should (after reconsidering its rulings on the contentions and completing any necessary prehearing matters) proceed first to take evidence on Commission Questions 1, 2, 5, 6 and 7. Then, if the concerns that prompted the Board to certify questions 2a and 2b are resolved at the conclusion of the testimony on these other Commission questions, the Board is to proceed to take evidence on questions 3 and 4 under the Commission guidance previously provided. If the concerns remain at this later date, then the Board should return to the Commission for further guidance. August 23 letter at pp. 2-3 Since the " rapidly changing situation" recognized by the Commission may eventually render moot many of the issues currently before the Board by the time the "120-day clock" expires in December, any present reformulation of emergency planning issues by the Board would likely require much effort that may well be wasted because of future developments. If the Board awaits the passage of the 120-day period, it will be able to apply the Commission's population-based materiality standard to the Question 3 and 4 contentions based upon conditions actually existing at that time. Therefore, Con Edison submits and requests that the Board limit its current efforts to re-formulation of contentions re. lated to Commission Questions 1, 2, 5 and 6, and defer any action on emergency planning contentions until the expiration of the "120-day clock."

In order to accomplish the objectives set forth above,

Con Edison moves this Board to issue an order providing that:

1) Ten days after the issuance of the Board's Order setting forth the proposed reformulation of contentions, each party desiring to do so shall submit a brief addressing the admissibility of the Board's contentions relating to Commission Questions 1, 2, 5 and 6;*
2) Within five days of the filing of the aforementioned brie fs , any party wishing to do so may file a reply brief which takes issue with the initial brief filed by any other party; and
3) Upon receipt of the briefs of all parties wishing to submit them, a prehearing conference will be held in order to discuss the views of the parties.

Res[ctf 1 sub , t ed, I$

Br nt L. Brandenburg

- Assistant General C unsel Consolidated Ediso Company of New York, Inc.

4 Irving Place New York, New Y k 10003 (212) 460-4333 of Counsel, Stephen M. Sohinki Dated: New York, New York August 31, 1982 J

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  • The Board should make clear that the briefs are to be in the hands of all parties 10 days after issuance of the Board's order.

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD l

Before Administrative Judges:

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

_--_--__----------_-----_----x

(

CONSOLIDATED EDISON COMPANY OF  : Docket Nos. 50-247-SP NEW YORK, INC. (Indian Point, 50-286-SP Unit No. 2)  :

POWER AUTHORITY OF THE STATE OF  :

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

_-_------_-_-_---_---__--_-_x CERTIFICATE OF SERVICE I certify that I have served corrected copies of the annexed Motion to Establish a Briefing Schedule Regard-ing the Reformulation of Contentions on the following P

parties by deposit in the United States Mail, postage prepaid, on th'is 2nd day of September, 1982.

Docketing and Service Branch Dr. Oscar H. Paris Office of the Secretary Administrative Judge U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Board Washington, 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

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I Janice Moore, Esq. Charles J. Mrikish, Esq.

Of fice of the Executive Litigation Division Legal Director The Port Authority of U.S. Nuclear Regulatory New York and New Jersey Commission One World Trade Center Washington, D. C. 20555 New York, New York 10048 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 !! organ, Jr. , Esq. General's Office

!- Morgan Associates, Chartered Two World Trade Center 1899 L Street, N.W. New York, New York 10047 Washington, D. C. 20036 Alfred B. Del Bello Charles M. Pratt, Esq. Westchester County Executive Thomas R. Frey, Esq. 148 Martine Avenue Power Authority of the State White Plains, New York 10601 of New York 10 Columbus Circle Andrew S. Roffe, Esq.

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

William S. Jordan, III,_ 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 y -

! New York Public Interest Stanley B. Klimberg Research Group New York State Energy Office 9 Murray Street 2 Rockefeller State Plaza New York, New York 10007 Albany, New York 12223 John Gilroy, Westchester Ruth Messinger

Coordinator Member of the Council of the

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Indian Point Project City of New York New York Public Interest District #4 Research Group City Hall

! 240 Central Avenue New York, New York 10007

! White P1'ains, 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 e r

[ L Joan Miles Alan Latman, Esq.

Indian Point Coordinator 44 Sunset Drive Croton-on-Hudson, New York 10520 New York City Audubon Society 71 W. 23rd Street, Suite 1828 New York, New York 10010 Richard M. Hartzman, Esq.

Lorna Salzman

Energy 208 West 13th Street New York, New York 10011 c/o Dean R. Corren, Director New York University 26 Stuyvesant Street -Zipporah S. Fleisher New 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 Mayor F. Webster Pierce Washington, D. C. 20555 Village of Buchanan 236 Tate Avenue Atomic Safety and Licensing Buchanan, New York 10511 Appeal Board Panel Judith Kessler, Coordinator U.S. Nuclear Regulatory Commission Rockland Citizens for Safe Washington, D. C. 20555 Energy 300 New Hempstead Road Richard L. Brodsky New City, New York 10956 Member of the County Legislature Westchester County David H. Pikus, Esq.

  • County Office BuildingF Richard F.- Czaja, Esq.

330 Madison Avenue White Plains, New York 10601 New York, New York 10017 Pat Posner, Spokesman Parents Concerned About Amanda Potterfield, Esq.

Indian Point Box 384 P.O. Box 125 Village Station Croton-on-Hudson, New York 10520 New York, New York 10038 Charles A. Scheiner, Co-Chairperson Ruthanne G. Miller, Esq.

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

n Donald Davidoff, Director Craig Kaplan, Esq.

Radiological Preparedness National Emergency Civil Group Liberties Committee Empire State Plaza 175 Fifth Avenue-Suite 712 Tower Building - Room 1750 New York, New York 10010 Albany, New York 12237 Dated: September 2, 1982 New York, New York

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