ML20070G648

Memorandum Supporting Con Ed 821215 Renewed Motion to Dismiss Ucs/Ny Pirg Contentions 2.1(a) & 2.1(d).UCS Continues to Act Immune from Orders of Aslb,Notwithstanding Judge Paris Admonition.Certificate of Svc Encl

ML20070G648
Person / Time
Site:	Indian Point
Issue date:	12/20/1982
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 8212220398
Download: ML20070G648 (9)

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

' ' ~ E{ipI.(gll James P. Gleason, Chairman nn gq- ' -

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Frederick J. Shon Dr. Oscar H. Paris

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In the Matter of )

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CONSOLIDATLJ EDISON COMPANY OF ) Docket Nos.

NEW YORK, INC. ) 50-247 SP (Indian Point, Unit No. 2) ) 50-286 SP

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i POWER AUTHORITY OF THE STATE OF )

NEW YORK ) Dec. 20, 1982 (Indian Point, Unit No. 3) )

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POWER AUTHORITY'S MEMORANDUM IN SUPPORT OF CONSOLIDATED EDISON'S RENEWED MOTION TO DISMISS UCS/NYPIRG CONTENTIONS 2.l(a) AND 2.l(d) l In response to the Board's request, the Power Authority of the State of New York (Power Authority) hereby files this ,

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memorandum in support of the Consolidated Edison Company of New York, Inc.'s (Con Edison's) renewed Motion to Dismiss i

I Contentions 2.1(a) and 2.l(o). See Con Edison Mailgram (Dec. 15, 1982).

Background

on Decemoer 3, 1982, this Doard directed the Union of f Concerned Scientists (UCS) to " place in the hands of all the parties" on December 10, 1982, a list of witnesses it intends to have testify on Contentions 2.1(a) ano 2.1(d).

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. 1 Transcript at 4872 (Dec. 3, 1982) (emphasis added).1 The Boara further instructed UCS that " identify [ing) witnesses (meant including] their qualifications and the list of cocuments on which they are going to rely." Id. at 4885.2 Despite the Board's specific orders, the Power Author-ity did not receive a list of UCS witnesses until December 13, 1982 (three days late),3 and did not receive a list of the witnesses' qualifications ano a " preliminary" list of documents upon which these witnesses will rely until December 15, 1982 (five cays late).4 As of the time of its December 15 telegram, Con Edison had received no documents whatsoever.

Argument This intentional violation of the Board's orders fol-lows two prior failures by UCS to meet Board-ordered

1. The Board noted that this would "have to be done by telephone, with confirmation by wire or some expedited method of service." Transcript at 4872 (Dec. 3, 1982).

2. The Board's instructions were confirmed by written Order on December 3, 1982. Memorandum and Order (Memori-alizing Rulings of Telephone Conference on December 3,1982) at 3, 4 (Dec. 8, 1982).

3. UCS/NYPIRG Notification to Parties of Witnesses on Commission Question Two (mailed Dec. 10, 1982). The only aspect of the Board's Order heedea by UCS was the require-ment that oral notification of the names of UCS' witnesses be maae by December 10, 1982.

4. Qualifications Statements for UCS/NYPIRG Witnesses on Commission Question Two (mailed Dec. 13, 1982).

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deadlines respecting the same contentions.1' UCS, thus, continues to act as if it is immune trom the orcers of this Board, notwithstanding Judge Paris' admonition:

Mr. Blum, I want to express to you the view of one third of the Board. I am concernea with respect to your ina'I bility to meet oeadlines.

I simply want to remind you that under NRC practice ano procedure, and based on rulings of the Appeal Boards, certain intervenors have been given a good deal of license by Licensing Boards to be less than precise in their plead-ings, but this leniency is not normally extenced to experienced attorneys.

I know that you came into this pro-ceeding as an inexperienced attorney in i

NRC proceedings, but it has been going on long enough so that I don't think we can consider you as inexperienced by now.

I would certainly hope that in the future you would pay great attention to deadlines, anc if you can't meet them, then act in the appropriate manner for an attorney, so that we wil avola this sort of mess in the future.

Transcript at 4887-88 (emphasis adaed). Accordingly, no further ev.cuses from UCS/NYPIRG should be tolerated by this Board.

Additionally, UCS' " preliminary" list referring to 121 documents upon which witnesses will rely is not only

1. UCS failedt 'o provide the required list of witnesses on November 19, 1982, Memorandum and Order (Formulating Final Contentions and Setting Schedule) at 22 (Nov. 15, 1982), ana failea to meet the adjusted schedule for filing of November 29 establishea by the Board.

Memorandum and Order (Granting Licensees and Staff an Extension of Time) at 1 (Nov. 24, 1982).

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unwieldy, but entirely unrealistic considering the Board has orderea licensees to complete depositions by December 23, 1982. Transcript at 4872 (Dec. 3,1982). Mr. Blum stated in a telephone conversation with Power Authority counsel that UCS' two witnesses on Contention 2.l(a) and (d) did not know which specific accuments of the 121 documents they would rely upon in their testimony and would not know completely until they actually file their testimony, well after the deadline date for licensees' deposition of these witnesses. Thus, UCS has significantly undercut the effectiveness of licensees' deposition of UCS' witnesses, thereby aefeating the underlying purpose of the Board's discovery period.

Based on the foregoing, the Power Authority joins Con-solidated Edison and requests that Contentions 2.1(a) and 2.1(d) ce aismissed.1

1. See Licensees' Motion to Dismiss Certain Contentions (Dec. 1, 1982).

5-Respectfully s'ubmitted,

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Charles Morgan,"Jr. '

h 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 ,

l SHEA & GOULD 330 Madison Avenue New York, New York 10017 (212) 370-8000 Dated: December 20, 1982

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSIO.N ATOMIC SAFETY AND LICENSING BOARD Betore Administrative Judges:

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

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In the Matter of )

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CONSOLIDATED EDISON COMPANY OF ) Docket Nos.

NbW YORK, INC. ) 50-247 SP (Inuian Point, Unit No. 2 ) 50-286 SP

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POWER AUTHORITY OF THE STATE OF ) Dec. 20, 1982 NEW YOkK )

(Indian Point, Unit No. 3 )

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CERTIFICATE OF SERVICE I hereby certify that on the 20th day of December, 1982, I caused a copy of Power Authority's Memoranuum In Support Of Consolidated Edison's Renewed Motion To Dismiss UCS/NYPIRG Contentions 2.1(a) And 2.1(d) to be hand delivered to those parties marked with an asterisk, and serveu oy first class mail, postage prepaic on all others. '

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• James P. Gleason, Chairman Charles M. Pratt, Esq.

b- Aaministrative Judge Stephen L. Baum, Esq.

Atomic Satety and Licensing Boaro Power Authority of the 513 Gilmoure Drive State of New York Silver Spring, Maryland 20901 10 Columbus Circle New York, New York 10019

• Mr. Frederick J. Shon Aaministrative Judge Janice Moore, Esq.

Atomic Safety and Licensing Board Counsel for NRC Staff U.S. Nuclear Regulatory Office of the Executive Commission Legal Director Wasnington, D.C. 20S$b U.S. Nuclear Regulatory Commission Washington, D.C. 20555

• Dr. Oscar H. Paris holainistrative Judge Brent L. Brandenburg, Esq.

Atomic Safety and Licensing Board Assistant General Counsel U.S. huclear Regulatory Consolidatec Eoison Company Commission of New York, Inc.

Wasnington, D. C. 20555 4 Irving Place New York, New York 10003 Docxeting and Service Branch Ottice of tue Secretdry Ellyn R. Weiss, Esq.

U.S. Nuclear Regulatory Commission Hilliam S. Jordan, III, Esq.

hasnington, D.C. 20555 Harmon anc Weiss 1725 I Street, N.W., Suite 506 Joan Holt, Project Director Washington, D.C. 20006 Inoian Point Project New York Public Interest Research Charles A. Scheiner, Co-Chairpersor Group Westchester People's Action 9 Murray Street Coalition, Inc.

New York, New York 10007 P.O. Box 488 White Plains, New York 10602 Jeftray M. Blum, Esq.

New York University Law School Alan Latman, Esq.

423 Vancerbilt Hall 44 Sunset Drive 40 Washington Square South Croton-On-Hudson, New York 10520 New York, New York 10012 Ezra I. Bialik, Esq.

Charles J. Maikish, Esq. Steve Leipzig, Esq.

Litigation Division Environmental Protection Bureau The Port Authority of New York New York State Attorney ano New Jersey General's Office One World Trade Center Two World Trade Center New York, New York 10048 New York, New York 10047 Alfred B. Del Bello Westchester County Executive Westchester County 148 Martine Avenue White Plains, New York 10601 Anorew S. Roffe, Esq.

New York State Assembly Albany, New York 12248 i

Marc L. Parris, Esq. Atomic Safety and Licensing Eric Thorsen, Esq. Board Panel County Attorney U.S. Nuclear Regulatory Commission County of Rockland Washington, D.C. 20555 11 New Hempstead Road l New City, New York 10956 Atomic Safety and Licensing l Appeal Board Panel l Pat Posner, Spokesperson U.S. Nuclear Regulatory Commission Parents Concerned About Indian Washington, D.C. 20555 Point P.O. box 125 Honorable Richard L. Brodsky Croton-on-Huason, New York 10520 Member of the County Legislature Westchester County Renee Schwartz, Esq. County Office Building Paul Chessin, Esq. White Plains, New York 10601 Laurens R. Schwartz, Esq.

Margaret Oppel, Esq. Zipporah S. Fleisher Botein, Hays, Sklar and hertzberg West Branch Conservation 200 Park Avenue Association New York, New York 10166 443 Buena Vista Road New City, New York 10956 Honorable Ruth W. Messinger Member of the Council of the Mayor George V. Begany City of New York Village of Buchanan District #4 236 Tate Avenue City Hall Buchanan, New York 10511 New York, New York 10007 Judith Kessler, Coordinator Greater New York Council Rockland Citizens for Safe Energy on Energy 300 New Hemsteaa Road c/o Dean R. Corren, Director New City, New York 10956 New York University 26 Stuyvesant Street David H. Pikus, Esq.

New York, New York 10003 Richard F. Czaja, Esq.

330 Madison Avenue Geoffrey Cobb Ryan New York, New York 10017 Conservation Committee Chairman Director, hew Yorx City Amanca Potterfield, Esq.

Aucubon Society Johnson & George 71 West 23ra Street, Suite 1828 528 Iowa Avenue New York, New York 10010 Iowa City, Iowa 52240 Lorna Salzman *Ruthanne G. Miller, Esq.

Mia-Atlantic Representative Atomic Safety and Friends of the Earth, Inc. Licensing Board Panel 208 kest 13th Street U.S. Nuclear Regulatory New York, New York 10011 Commission Washington, D.C. 20555 Stanley B. Klimberg, Esq.

General Counsel New York State Energy Office 2 Rockefeller State Plaza Albany, New York 12223

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Mr. Donald Davidoff Director, Radiological Emergency Prepareaness Group Empire State Plaza Tower Builoing, Rm. 1750

-Albany, New York 12237 Craig Kaplan, Esq.

National Emergency Civil Liberties Committee 175 Fifth Avenue, Suite 712 New York, New York 10010 Michael D. Diederich, Jr., Esq.

Fitgeralu, Lynch h Diederich 24 Central Drive Stony Point, New York 10980 Steven C. Sholly Union of Concerneo Scientists 1346 Connecticut Avenue, N.W.

Suite 1101 Washington, D.C. 20036 Spence W. Perry Office of General Counsel Federal Emergency Management Agency 500 C Street, S.W.

Washington, D.C. 20472 Stewart M. Glass Regional Counsel Room 1349 Federal Emergency Management A'gency 26 Feaeral Plaza New YorX, New York 10278 Melvin Golaberg Start Attorney New York Public Interest Research Group 9 Murray Street New York, New York 10007 Jonathan L. Levine, Esq.

P. O. Box 280 New City, New York 10958 6 a ose >h J . Lev '

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