ML20067B251
| ML20067B251 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 12/01/1982 |
| 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 | |
| TASK-A-49, TASK-OR ISSUANCES-SP, NUDOCS 8212060103 | |
| Download: ML20067B251 (10) | |
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f4kcU UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 0 0'2 p[g ATOMIC SAFETY AND LICENSING BOARD D' ICE y(rO;VG.
-C
- r. 9 Before Administrative Judges:
DI "#E James P.
Gleason, Chairman R
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)
December 1, 1982
x LICENSEES' MOTION TO DISMISS CERTAIN CONTENTIONS In its October 1, 1982 Memorandum and Order herein (October 1 Order), this Board assigned responsibility for presentation of the affirmative case regarding Contentions 2.1 and 2.2 to the Union of Concerned Scientists /New York Pub-l l
lic Interest Research Group (UCS/NYPIRG) and West Branch Con-servation Association (WBCA), respectively.*
As reflected in the Board's November 15, 1982 Memorandum and Order, (November 15 Order), the remaining contentions under Commission Question 2 These assignments reflected the fact that UCS/NYPIRG and WBCA had been the original proponents of these issues.
See
" Contentions of Joint Intervenors Union of Concerned Scientists and New York Public Interest Research Group,"
dated December 2, 1981; "WBCA's Reply to Objections to its Filed Contentions," dated January 11, 1982.
l l
8212060103 821201 PDR ADOCK 05000247 O
~
are 2.1(a) and (d), dealing with filtered vented containments and separate containments, respectively, and 2.2(a) and (b),
concerning brackish water and specific pressurized thermal shock responses, respectively.
With respect to those intervenor contentions, the November 15 Order directed sponsoring inter-venors to file testimony in support on December 23 and 30, and permitted Licensees and Staff to file responsive testimony on January 7.
On November 23, 1982, Mrs. Zipporah Fleisher, the representative of WBCA, informed the Licensees that although she would be presenting a single witness with regard to Contention 2.2(a), she would have no witnesses concerning 2.2(b), and did not consider that to be a contention for which she was responsible.
On November 24, 1982, counsel for UCS informed the Licensees that UCS/NYPIRG would be presenting no~ witness on either of the remaining issues under contention 2.1.
In light of this unexpected development, and for the reasons fur-ther discussed below, the Licensees respectfully request that this Board dismiss Contentions 2.1(a) and (d) and Contention 2.2(b) as issues in controversy in this proceeding.
i
~
In assigning " lead intervenor" responsibility 'for these contentions to UCS/NYPIRG and WBCA, and setting the sched-ule for filing of testimony with regard to these issues, it was clearly contemplated that the intervenors would have an -
affirmative case to present.
The Licensees believed this as well, since during the discussions of the Scheduling Committee at the November 3 and 4 pre-hearing conference, the Licensees agreed to present testimony initially on Questions 1 and 5 in exchange for intervenors commitment to proceed with the initial filing of testimony on Question 2.
Thus, the November 15 Order directed intervenors to file testimony first with regard to their proposed additional safety measures.
As the Board implicitly recognized, this order of presentation was the only logical way to proceed given the fact that (1) the intervenors were the proponents of the issues, and (2) the Licensees should not be expected to address the risk implications of the additional safety features being proposed until the elements of such features were presented in the intervenors' direct case.*
As noted, during the November 3-4, 1982 prehearing conference, and as the Scheduling Committee's proposed schedule reflected, both UCS/NYPIRG and WBCA agreed to file their additional safety features testimony prior to the Licensees and l
See " Con Edison's Memorandum Respecting the Licensing Board's October 1, 1982, Order Reformulating Contentions,"
dated October 19, 1982 at pp. 11, 12, 17; " Power Authority's Response to Board's October 1, 1982 Order Reformulating Contentions," dated October 19, 1982 at p.
10.
NRC Staff.
The Committee thus put into practice Commissioner Asselstine's explicit suggestion in the Commission's July 27 Order herein that "to more sharply focus on the issues" in this proceeding, the proponent of each contention should file testimony first and other parties be given ample time to prepare written rebuttal testimony.*
As the Appeal Board recognized in Consumers Power
~
Company (Midland Plant, Units 1 and 2) ALAB-123, 6 AEC 331 i
(1973):
(W]here, as here, one of the [intervenors] contends that for a specific reason... the permit or license should be denied, that party has the burden of going forward with evidence to buttress that contention.
Once he has in-troduced sufficient evidence to establish a prima facie case, the burden then shifts to the applicant who, as part of his overall burden of proof, must provide a sufficient rebuttal to satisfy the Board that it should reject the contention as a basis for denial of the permit or license. 6 AEC at 345 (emphasis in original).
Accord: Consolidated Edison Company of New York, Inc.
(Indian Point Station, Unit No. 2), ALAB-188, 7 AEC 323, 356 (fn. 142) (1974).
While there is authority that intervenors can j
develop support for contentions through cross-examination in normal licensing cases, this is surely not the case here where the sponsors of certain safety features have belatedly elected not to pursue them.
Licensees should not be put to the task Consolidated Edison Company of New York (Indian Point l
Unit 2); Power Authority of the State of New York l
(Indian Point, Unit 3) CLI-82-15, NRC Docket Nos. 50-247, 50-286 (July 27, 1982), separate views of Commissioner Asselstine at 5, slip op,. ;
l
of presenting a seminar on unfocused safety measures.*
For the foregoing reasons, the Licensees respectfully move the Board for an order dismissing Contentions 2.1(a) and (d) and Contention 2.2(b) as issues in controversy in this proceeding.
Since the current schedule requires depositions concerning Commission Question 2 to be taken,by December 9, Licensees respectfully request that the Board within 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> of receipt of this motion initiate a conference call among representatives of the Licensees, the NRC Staff, and sponsoring intervenors UCS/NYPIRG and WBCA for the purpose of hearing responses and argument regarding the motion.**
For example, only after the details of the filtered vented containment system suggested by UCS/NYPIRG were set forth in UCS/NYPIRG's direct case could the Licensees address the potential for reduction in risk offered by the specific device being proposed.
Without testimony from the sponsoring intervenor, however, the potential for risk reduction at the Indian Point facilities cannot be fruitfully explored.
Copies of this motion are being hand delivered to the Board, NRC Staff, UCS/NYPIRG and WBCA.
1.--
8 0
[
Respectfully submitted, k
ao eld &L.,
Brent L.
Brandenburg Charles Morgan,OJr'.
Paul F.
Colarulli Joseph J. Levin, Jr.
CONSOLIDATED EDISON COMPANY MORGAN ASSOCIATES, CHARTERED OF NEW YORK, INC.
1899 L Street, N.W.
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 Charles M.
Pratt Assistant General Counsel POWER AUTHORITY OF THE STATE OF NEW YORK Licensees 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
.De' ember 1, 1982 l
Dated:
J 6-
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
James P. Gleason, 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 hereby certify that on the 1st day of December, 1982, I caused a copy of the Licensees' Motion to Dismiss Certain Contentions to be hand-delivered to the following, 4
i parties marked with an asterisk, and served by United States express mail, postage prepaid on the following:
Docketing and Service Branch
- Dr. Oscar H.
Paris i
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
- James P.
Gleason, Esq., Chairman Washington, D.
C.
20555 Administrative Judge 513 Gilmoure Drive
- Mr.
Frederick J.
Shon Silver Springs, Maryland 20901 Administrative Judge Atomic Safety and Licensing Board U.S.
Nuclear Regulatory Commission Washington, D.C.
20555
- Janice Moore, Esq.
Charles J. Maikish, Esq.
Office 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 Morgan, 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 Stephen L.
Baum 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 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
- Melvin Goldberg Ruth Messinger Staff Attorney Member of the Council of the New York Public Interest City of New York Research Group District #4 9 Murray Street City Hall l
New York, New York 10007 New York, New York 10007
- Jeffrey M. Blum Marc L.
Parris, Esq.
New York University Law Schcol County Attorney 423 Vanderbilt Hall County of Rockland Washington Square South 11 New Hempstead Road New York, New York 10012 New City, New York 10010 a
Joan Miles Alan Latman, Esq.
Indian Point Coordinator 44 Sunset Drive New York City Audubon Society Croton-on-Hudson, New York 10520 71 W.
23rd Street, Suite 1828 New York, New York 10010 Richard M. Hartzman, Esq.
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 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 U.S. Nuclear Regulatory Judith Kessler, Coordinator 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 Building Richard F. Czaja, Esq.
White Plains, New York 10601 330 Madison Avenue New York, New York 10017 Pat Posner, Spokesman Parents Concerned About Amanda Potterfield, Esq.
Indian Point Johnston & George P.O.
Box 125 528 Iowa Avenue Croton-on-Hudson, New York 10520 Iowa City, Iowa 52240 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 Stewart M. Glass Regional Counsel, Room 1347 Federal Emergency Management Agency 26 FJderal Plaza New. York, New York 10278
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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 David B.
Duboff Jonathan D.
Feinberg Westchester Peoples' New York State Public Action Coalition Service Commission 255 Grove Street Three Empire State Plaza White Plains, N.
Y.
10601 Albany, New York 12223 Steven C. Sholly Spence W.
Perry Union of Concerned Office of General Counsel Scientists Federal Emergency 1346 Connecticut Ave.,
N.W.
Management Agency Suite 1101 500 C Street, Southwest Washington, D. C,.
20036 Washington, D.C.
20472 I
Dated:
December 1, 1982 New York, New York
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