ML20064N934

Response in Opposition to Ucs/Ny Pirg 830124 Motion for Certification of Two Questions Re Proposed Contentions. Questions Proposed for Certification Do Not Present Major Questions of Policy.Certificate of Svc Encl

ML20064N934
Person / Time
Site:	Indian Point
Issue date:	02/08/1983
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 8302160384
Download: ML20064N934 (14)

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. DOCKETED US W UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSIO%3 FEB 15 M0 2 ATOMIC SAFETY AND LICENSING BOARD ,

Before Administrative Judges:

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

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x In the Matter of  : Docket Nos.

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

February 8, 1983 POWER AUTHORITY OF THE STATE OF NEW YORK, (Indian Point, Unit No. 3)  :

___________________________________________x LICENSEES' RESPONSE TO UCS/NYPIRG MOTION FOR CERTIFICATION ATTORNEYS FILING THIS DOCUMENT:

Charles Morgan, Jr. Brent L. Brandenburg Paul F. Colarulli CONSOLIDATED EDISON COMPANY Joseph J. Levin, Jr. OF NEW YORK, INC.

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 T302160394 e3020s PDR ADOCK 05000247

Preliminary Statement Consolidated Edison Company of New York, Inc. (" Con Edison"), licensee of Indian Point Station, Unit No. 2 and the 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 to certify tuo questions to the Commission regarding proposed contentions (" UCS /NYPIRG Motion" ) . In the UCS/NYPIRG Response to the Memorandum and Order (Reformulating Contentions under Commission Questions 3 and 4) dated January 24, 1983, UCS/NYPIRG moved the Board to certify the following two questions to the Commission pursuant to 10 CFR S2.718(i):

Should the Board accept for litigation and reformulate a contention challeng-ing the adequacy of the exercise pro-cess to provide a basis for determining emergency response capabi'.ity for an accident at Indian Point and proposing that alternative criteria be developed based on written commitments from emer-gency workers, emergency response organ-izations, and local officials who will be called upon to implement the plans?

Alternatively, should the Board formulate a question and invite testimony from all parties regarding the adequacy of the exercise and the results of the exercise as a measure of preparedness?

UCS/NYPIRG Motion at 8.

The proposed question for certification arises out of two new contentions proposed by NYPIRG, and one proposed by 4

Parents Concerned About Indian Point in their respective filings dated December 28, 1982 and December 24, 1982.

The Board, in its January 7, 1983 Memorandum and Order (Reformulating Contentions Under Commission Questions 3 and 4), rejected these proposed contentions on the grounds that (1) the FEMA witnesses will report on the results of the exercise; (2) matters contained in the proposals that do not challenge the regulations are already covered under Contention 3.1; and (3) the intervenors failed to provide the required

" sound b sis" for those portions of the proposed contentions which challenge the regulations. (January 7 Order at 15-16.)

The proposed NYPIRG contentions stated:

I. The exercise process is not an adequate basis for determining aspects of emergency response capability for an accident at Indian Point.

II. Letters of agreement, memoranda of understanding, and mutual aid agreements, signed by the responsible local officials and by the emergency workers themselves should be the determining criteria in evaluating emergency response capability.

The proposed Parents contention stated:

IV. Preparedness should be demonstrated by the willingness and ability of emergency workers in the field, by com-mitments in the form of letters of agreement from all emergency response agencies including schools, bus com-panies, fire departments, ambulance corps, and local governments which will be called upon to implement the plans.

Licensees support the Board's rejection of these belated proposals. (See Power Authority's Response to Reformulated Contentions Under Questions 3 and 4 at 1 and Con Edison's Memorandum Respecting the Licensing Board's January 7, 1983 Memorandua and Order Reformulating Contentions Under Commission Questions 3 and 4 at 2.)

Licensees oppose the instant motion on the grounds that the questions proposed for certification do not present major or novel questions of policy and the instant circum-stances do not warrant resort to the eY.traordinary remedy of certification.

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• Moreover, certification is no more warranted for the three contentions at issue on this motion than it would be for other contentions to which objection has been made. If certification is somehow appropriate, it should be granted for all contentions, to avoid piecemeal review.

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CERTIFICATION IS NOT WARRANTED HEREIN The Commission's regulations make clear that certifi-cation is appropriate only under extraordinary circumstances:

A question may be certified to the Commission or the Appeal Board, as appropriate, for determination when a major or novel question of policy, law or procedure is involved which cannot be resolved except by the Commission or the Appeal Board and when the prompt and final decision of the question is important for the protection of the public interest or to avoid undue delay or serious prejudice to the interests of a party.

10 CFR Part 2, App. A(V)(f)(4); see also Puerto Rico Water Resources Authority (North Coast Nuclear Plant, Unit 1), 4 NRC 625 (1976) (no basis shown "for concluding that sufficiently extraordinary circumstances are present" to justify direction of certification); Public Service Co. of Indiana (Marble Hill l

Nuclear Generating Station, Units 1 and 2), 5 NRC 1190, 1192 (1977) (interlocutory review appropriate only where the Board's ruling "either (1) threatened the pa';ty adversely affected by it with immediate and serious irreparable impact which, as a practical matter, could not be alleviated by a later appeal or (2) affected the basic structure of the proceeding in a perva-sive or unusual manner").

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In Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2),'l NRC 478 (1975), the Appeal Board ruled that a Licensing Board's refusal to summarily dispose of issues relating to off-site emergency planning was not certifiable pursuant to CFR S2.718(i). The Appeal Board went on to hold that, despite an alleged conflict among different Boards on the issue of which certification was sought, there does not appear here to be any exceptional circumstance which, either in the furtherance of the public inter-est or to avoid the imposition of a patently unreasonable burden upon one of the litigants, dictates that we step into the case at this time.

Id. at 486.

The Appeal Board (at p. 483, n. 11) cited a similar certification provision governing the federal courts, 28 U.S.C. S1292(b), which permits a district court judge to certify for interlocutory appeal an order that

" involves a controlling question of law as to where there is substantial ground for difference of opinion." It is well settled under S1292(b) that "such matters as the sufficiency of pleadings ... are not ordinarily certifiable" and "[t]he critical requirement is that [the certified question] have the potential for substantially accelerating the disposition of the litigation." 9 Moore's Federal Practice 1110.22[2]

(1982).

Herein, the proposed contentions indisputably challenge the Commission's regulations (see, e.g., 10 CFR 550.47(b)(14)).

The Commission's position on the adequacy of the exercise process is well-established and clearly presents no novel question of policy. The exercise requirements contained in 10 CFR Part 50 were adopted after careful consideration and exten-sive comment. See 45 Fed. Reg. 5540 2 ( Aug. 19, 1980). Indeed, the Commission has rejected proposals for more extensive exercise and emergency planning assessment regulations. See In re Critical Mass Energy Project, PRM-50-23, 46 Fed. Reg. 11288 (Feb. 6, 1981). Similarly, the Commission / FEMA requirements for letters of agreement and similar memoranda are already clearly set forth in NUREG-0654. No novel or major questions of policy are therefore presented by the instant motion.

In addition, the proposed contentions contravene the Commission's recent directions herein. The Commission's July 27, 1982 Memorandum and Order directed the Board to expeditiously reconsider the admissibility of contentions previously admitted to the proceeding, and to reformulate

• The Board correctly noted that the intervenors provided no " sound basis" to support such a challenge as required under Commission Question 4. We further note that enhanced exercises and letters of agreement are not off-site emergency procedures, and therefore fail to meet another Question 4 requirement.

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existing contentions in accordance with that Order's guidance.

(July 27 Order at 17.) The Commission in no way sanctioned the proposal of completely new contentions, the deadline for submission of such contentions was December 2, 1981. The instant motion, which seeks certification to admit entirely new contentions, runs contrary to the Commission's intent.

Finally, rather than accelerate the disposi-tion of this proceeding (9 Moore's Federal Practice, supra),

the admission of the proposed contentions would clearly lengthen and expand the hearings. Hence, certification is not merely unwarranted, but would in fact be improper and counterproductive.

In declining to certify questions herein regarding novel issues far more significant than those raised by the instant motion, the Board has noted that its certification power is to be used " sparingly." (March 29, 1982 Memorandum and Order at 5.) The instant motion clearly does not merit certification.

l Respectfully submitted,

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Brent L. Brfndenburg Charles Morgan,g r.

Paul F. Colarulli g

Joseph J. Levin, Jr.

CONSOLIDATED EDISON COMPANY M3RGAN ASSOCIATES , CHARTERED OF NEW YORK 1899 L Street, N.W.

l Licensee of Indian Point Washington, D.C. 20036 Unit 2 (202) 466-7000 4 Irving Place New York, New York 10003 Stephen L. Baum (212) 460-4600 General Counsel Chrrles M. Pratt Assistant General Counsel POWER AUTHORITY OF THE l STATE OF NEW YORK Licensee of Indian Point Unit 3 l

10 Columbus Circle New York, New York 10019 (212) 397-6200 Bernard D. Fischman Michael Curley l Richard F. Czaja l David H. Pikus l SHEA & GOULD 330 Madison Avenue New York, New York 10017 j (212) 370-8000 i 1

Dated: February 8, 1983 l

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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

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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 ) February 8, 1983 (Indian Point, Unit No. 3) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of LICENSEES' RESPONSE l TO UCS/NYPIRG MOTION FOR CERTIFICATION in the above-captioned proceeding have baen served on the following by deposit in the l

United States mail, first class, this 8th day of February, l 1983.

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I Docketing and Service Branch Ellyn R. Weiss, Esq.

Office of the Secretary William S. Jordan, III, Esq.

l U. S. Nuclear Regulatory Harmon & Weiss l 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 l

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Dr. Oscar H. Paris Janice Moore, Esq.

Administrative Judge Counsel for NRC Staff Atomic Safety and Licensing Of fice 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 Greater New York Council on Administrative Judge Energy Atomic Safety and Licensing c/o Dean R. Corren, Board Director U.S. Nuclear Regulatory New York University Commission 26 Stuyvesant Street Washington, D.C. 20555 New York, N.Y. 10003 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 Trade 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 l

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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 Rodriguez, 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 Otfice 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

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 Emergency Preparedness U.S. Nuclear Regulatory Group Commission Empire State Plaza 20555 Washington, D.C. 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.

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

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Agency 500 C Street, Southwest Washington, D.C. 20472 s if David H. Pikus l

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