ML20064N731

Motion for Order Establishing Schedule for Witnesses Under Commission Questions 3 & 4,limiting Scope of Testimony to Be Presented by Ny City Council Re Ingestion Emergency Planning Zone.W/Certificate of Svc

ML20064N731
Person / Time
Site:	Indian Point
Issue date:	02/07/1983
From:	Morgan C MORGAN ASSOCIATES, POWER AUTHORITY OF THE STATE OF NEW YORK (NEW YORK
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-SP, NUDOCS 8302160324
Download: ML20064N731 (12)

Text

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'83 FED 15 A10:32 ,

UNITED STATES OF AMERICA I NUCLEAR REGULATORY COMMISSION .m 3 u 9

ATOMIC SAFETY AND LICENSING BOARD 'l Before Administrative Judges:

James P. Gleason, Chairman Frederick J. Shon Dr. Oscar H. Paris 1

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x In the Matter of  : Docket Nos.

CONSOLIDATED EDISON COMPANY OF NEW YORK, 50-247 SP INC. (Indian Point, Unit No. 2)  : 50-286 SP l POWER AUTHORITY OF THE STATE OF NEW YORK,  : February 7, 1983 (Indian Point, Unit No. 3)

____________________________________________x j l

POWER AUTHORITY'S MOTION TO ESTABLISH SCHEDULE i AND LIMIT SCOPE OF NEW YORK CITY COUNCIL TESTI-MONY UNDER COMMISSION QUESTIONS 3'AND 4 ATTORNEYS FILING THIS DOCUMENT:

Charles Morgan. Jr.

Paul F. Colarulli Joseph J." Levin, Jr.

MORGAN ASSOCIATES, CHARTERED 1899 L Street, N.W.

Washington, D.C. 20036 (202) 466-7000 8302160324 830207 PDR ADOCK 05000247 O PDR 6

Preliminary Statement Power Authority of the State of New York (" Power Authority"), licensee of Indian Point 3 Nuclear Power Plant, hereby mo? es the Board for an Order (1) establishing a schedule and time allocation for the hearirg of witnesses under Commis-sion Questions 3 and 4; and (2) limiting the scope of the testimony to be presented by the New York City Council Members (the " City Council").

The Board correctly recognizes that "[t]here is no way in our handling of this issue that we are going to be able to accommodate that large number [over 170] of [intervenor]

witnecses." (T:6933.) We respectfully submit, however, that the Board has substantially underestimated the hearing time necessary to accommodate even 47 intervenor witnesses, as the Board has proposed, and the host of additional witnesses to be presented by the Commission Staff, FEMA, New York State, the licensees, and the City Council. Even with reasonable limits placed on cross-examination time, we estimate that it would take at least double the number of hearing weeks presently allocated to hear this testimony.

l Thus, rather than establish limits on the number of individual witnesses, the Power Authority submits that it would be more fair, efficient, and consistent with the

Commission's orders and due process to, allocate existing hearing time to the various parties and interested states. We also believe that the Board should limit the scope of the City Council testimony in order to further the above goal of properly managing limited hearing time, as well as to comply with the Commission's orders herein.

Hearing Time Should Be Allocated Among the Parties The Commission's July 27, 1982 Memorandum and Order.

(CLI-82-15) (" July 27 Order") strongly reaffirms the Commission's directive to focus this proceeding and to screen out evidence that would not contribute materially to addressing the stated purpose of the proceeding, namely the comparative risk posed by Indian Point.

Obviously, some witnesses will present testimony which is more material than others'. FEMA, the Commission Staff, and New York State, for example, are in a position to

• While the July 27 Order speaks in terms of screening out issues and contentions, a fortiori this guidance should ap-ply to presentation of evidence. The Commission's obvious objective is to avoid wasting hearing time on matters beyond its primary concerns. To screen out issues and contentions, but then to allow the presentation of evidence without regard to the Commission's guidance, would make no sense, contravene the Commission's objectives, and vaste time.

compare emergency planning at Indian Point with planning at other sites. Licensees' on-site panels and the Commission Staff are the only witnesses to have filed testimony on the most important aspect of radiological emergency preparedness --

the on-site response.

A full opportunit,y must be given, of course, to hear and cross-examine witnesses presented by all parties, intervenors, and interested states. A limitation on the number of witnesses has proven all but impossible to effect in the past, and the Power Authority has a standing due process objection to arbitrary limits placed upon cross-examination time which would prejudice the parties. Accordingly, we propose the following schedule within which the parties, interested states, and intervenors must present their direct testimony and accommodate reasonably anticipated cross-examination:

(1) Lead intervenors (2 days).

l (2) Contributing intervenors (1 day).

(3) City Council (1 day).

(4) Licensees (2 1/2 days).

I (5) Commission Staff (2 days).

(6) State of New York (2 1/2 days).

j (7) FEMA (2 days). ,

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• Further, New York State should be allowed additional time to respond to the testimony of Rockland and Westchester County witnesses, who were allotted two full weeks of testimony during which they made repeated allegations concerning the State's role and participation in emergency planning.

• • But see objections at pp. 4-6, infra.

This schedule affords the intervenors more time han any os .r party, and reflects the Power Authority's expectations regarding time necessary to reasonably cross-examino material witnesses. The Board should require all parties, intervenors, and interested states to submit a sche-dule of proposed witnesses and anticipated cross-examination time for each, no later than February 15. The Board can then, in consultation with the participants, determine whether such schedules are reasonable and, if not, make its own modifications.

The Scope of The City Council Testimony Should Be Limited The Power Authority has no objection to the City Council presenting material evidence regarding the 50-mile ,

plume ingestion pathway emergency planning zone (" ingestion EPZ"). Most of the City Council's pre-filed testimony, however, concerns issues irrelevant to the ingestion EPZ and instead deals with the possible evacuation of New York City (which includes areas nearly 60 miles from Indian Point).

The Commission has provided explicit guidance, in its orders herein and its regulations, regarding the extent to which emergency planning issues Leyond the 10-mile plume exposure pathway EPZ (" plume EPZ") may be considered in this proceeding. Fi rs t , the Commission has stated that issues t

b relating to the exact size of the plume EPZ must be determined under Question 3.* (July 27 Order at 15.) Second, the Commission has proscribed challenges to the Commission's regulations under Question 3. (Id.)

Third, while the Com-mission's regulations permit " minor adjustr.ats" to the size of the plume EPZ to account for local conditions, the plume EPZ must still be "about 10 miles." (July 27 Order at 15; Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), 14 NRC 691, 698 (1981).) Fourth, the Comiaission regulations provide for a 50-mile ingestion EPZ, which would include portions of New York City. But evacuation planning is not required beyond the plume EPZ. (NUREG-0654 at 59-65.)

Thus, the City Council could properly present testimony relating to protective measures required for the ingestion EPZ, which principally deal with " protecting the public from consump-tion of contaminated foodstuffs." (Id. at 64.) The bulk of the City Council's testimony, concerning evacuation planning and a vast expansion of the plume EPZ, is both irrelevant, and a direct challenge to the regulations proscribed by 10 CFR

• We noted in the Power Authority's Response to Reformulated Contentions Under Questions 3 and 4 dated January 24, 1983 l

(at 11, n.(*)) that the contention regarding the size of the plume EPZ was erroneously designated under Question 4. If the City Council testimony were, in fact, proper under Question 4, it would be required to meet the special requirements set forth below, at page 6, n.(*).

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' j S 2.758 and the July 27 Order.

Accordingly, the Board should limit the scope of the City Council testimony to matters relating to the inges- l tion EPZ, and, inter alia, strike all testimony concerning evacuation planning and expansion of the plume EPZ'to include New York City. This will assure compliance with the Commis-sion's orders, and assist in managing the proceeding within its tight schedule.

• Moreover, Commission Ouestion 4 asks whether there are additional " specific offsite emergency procedures that are feasible and should be taken to protect the public." Even assuming that the evacuation of New York City is somehow relevant under Question 4, the City Council testimony consists mainly of conclusions by politicians and others that evacuation is unfeasible there. It contains no recom-mendations for specific, feasible procedures, and does not contain any " sound basis" or any demonstration whatsoever that New York City is at risk from Indian Point any more than it is at risk from Shoreham, Oyster Creek, or any other nuclear plant. Thus, it manifestly fails to satisfy the requirements stressed in the July 27 Order and is unimportant in answering the Commission's Questions.

• • In the event that the Board denies our motion regarding the City Council, the Power Authority alternatively requests leave to take the depositions of the City Council witnesses.

These witnesses raise issues clearly beyond the existing regulations, with which the Power Authority is generally unfamiliar, and upon which we have not pre-filed testimony.

Such depositions are imperative in order to avoid prejudice.

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Respectfully submitted,

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m Charles Morgan,'Jr. G Paul F. Colarulli Joseph J. Levin, Jr.

MORGAN ASSOCIATES, CHARTERED 1899 L. Street, N.W.

Washington, D.C. 20036 (202) 466-7000 Stephen L. Baum 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: February 7, 1983 I

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

James P. Gleason, Chairman Frederick J. Shon Dr. Oscar H. Paris

)

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 ) February 7, 1983 (Indian Point, Unit No. 3) )

)

CERTIFICATE OF SERVICE i I hereby certify that copies of POWER AUTHORITY'S MOTION TO ESTABLISH SCHEDULE AND LIMIT SCOPE OF NEW YORK CITY COUNCIL TESTIMONY UNDER COMMISSION OUESTIONS 3 AND 4 in the t

above-captioned proceeding have been served on the following by deposit in the United States mail, first class, this 7th day of February, 1983.

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 James P. Gleason, Esq., Chairman Joan Holt, Project Director Administrative Judge Indian Point Project Atomic Safety and Licensing New York Public Interest Board Research Group 513 Gilmoure Drive 9 Murray Street Silver Spring, Maryland 20901 New York, N.Y. 10007

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d Dr. Oscar H. Paris Janice Moore, Esq.

Administrative Judge Counsel for NRC Staff Atomic Safety and Licensing Office of the Executive U.S. Nuclear Regulatory Legal Director Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 Mr. Frederick J. Shon Brent L. Brandenburg, Esq.

Administrative Judge Assistant General Counsel Atomic Safety and Licensing Consolidated Edison Co.

Board of New York, Inc.

U.S. Nuclear Regulatory 4 Irving Place Commission New York, N.Y. 10003 Washington, D.C. 20555 Jeffrey M. Blum, Esq. Charles J. Maikish, Esq.

New York University Law Litigation Division School The Port Authority of 423 Vanderbilt Hall New York and New Jersey 40 Washington Square South One World Trade Center New York, N.Y. 10012 New York, N.Y. 10048 Ezra I. Bialik, Esq.

Marc L. Parris, Esq. Steve Leipsig, Esq.

Eric Thorsen, Esq. Enviromental Protection Bureau County Attorney New York State Attorney County of Rockland General's Office 11 New Hemstead Road Two World Trada Center New City, N.Y. 10956 New York, N.Y. 10047 Joan Miles Alfred B. Del Bello Indian Point Coordinator Westchester County Executive New York City Audubon Society Westchester County 71 West 23rd Street, Suite 1828 148 Martine Avenue New York, N.Y. 10010 White Plains, N.Y. 10601 I

Greater New York Council on Energy c/o Dean R. Corren, Director New York University 26 Stuyvesant Street New York, N.Y. 10003 I

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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 Andrew 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. Phyllis Rodriquez, Spokesperson Paul Chessin, Esq. Parents Concerned About Laurens R. Schwartz, Esq. Indian Point Margaret Oppel, Esq. P.O. Box 125

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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 l 2 Rockefeller State Plaza Coalition, Inc.

Albany, New York 12223 P.O. Box 488 White Plains, N.Y. 10602 l

l 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 l Friends of the Earth, Inc. Association l 208 West 13th Street 443 Buena Vista Road New York, N.Y. 10011 New City, N.Y. 10956 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 Ruthanne G. Miller, Esq. Mr. Donald Davidoff Atomic Safety and Licensing Director, Radiological Board Panel Dmergency Preparedness U.S. Nuclear Regulatory Group Commission Empire State PlazL Washington, D.C. 20555 Tower Building, RM 1750 Albany, New York 12237 Stewart M. Glass Amanda Potterfield, Esq.

Regional Counsel Johnson & George, Attys at Law Room 1349 528 Iowa Avenue Federal Emergency Management Iowa City, Iowa 52240-Agency 26 Federal Plaza New York, New York 10278 Melvin Goldberg Steven C. Sholly Staff Attorney Union of Concerned Scientists New York Public Interest 1346 Connecticut Ave., N.W.

Researcn Group Suite 1101 9 Murray Street Washington, D.C. 20036 New York, New York 10007 Spence W. Ferry Office of General Counsel Federal Emergency Management .

Agency 500 C Street, Southwest Washington, D.C. 20472

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David H. PiYus

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