ML20071E509

Motion for Mod of ASLB 830307 Order Adopting Alternate ASLB Member Laurenson Recommended Decision on Scheduling.Ruling Should Be Clarified Re Time to Hear post-exercise FEMA Testimony.Certificate of Svc Encl

ML20071E509
Person / Time
Site:	Indian Point
Issue date:	03/08/1983
From:	Brandenburg B CONSOLIDATED EDISON CO. OF NEW YORK, INC.
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-SP, NUDOCS 8303100271
Download: ML20071E509 (10)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMitISSION ATO!!IC SAFETY AND LICEt1 SING BOARD ;7; Before Administrative Judges:

James P. Gleason, ChairmanggDNAR-9 Frederick J. Shon ,

gy.yp Or. Oscar H. Paris i.c d '~ '

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xl In the Matter of  : Docket Nos.

I CONSOLIDATED EDISON COMPANY OF.NEW YORK  : 50-247 SP i INC. (Indian Point, Unit No. 2) 50-286'SP POWER AUTHORITY OF THE STATE OF NEW YORK,  :

l l (Indian Point, Unit No. 3) March 8, 1983

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MOTION OF CONSOLIDATED EDISON FOR MODIFICATION-OF THE BOARD'S MARCH 7, 1983 ORDER ADOPTING THE RECOMMENDED DECISION OF ALTERtlATE BOARD MEMBER LAURENSON __

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! Licensee Consolidated Edison Company of New York, Inc. (" Con Edison") moves the Board for an order modifying its March 7, 1983 Mailgram Memorandum and Order adopting the March 4,

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1983 Recommended Decision (" Recommended Decision") . Con Edison believes that the Recommended Decision, for the most l

l part, represents a fair and equitable allocation of the remaining time available to Commission Questions 3 and 4.

Recognizing that eighteen (18) hearing days and more than 4500 pages of traiucript have already been devoted to this topic (Recommended Decision at 9), Judge Laurenson found that ten additional hearing days would be appropriate, and C303100271 830308 PDR ADOCK 05000247 PDR nsD]7 U

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recommended allocation as follows:

Licensees - two days.

Intervenors - five days.

NRC Staff - one day.

New York State - one day.

i Rockland County - one-half day.

Westchester County - one-half day.

Con Edison respectfully submits that the Order adopting the Recommended Decision should be modified in certain limited respects.

First, Con Edison believes that the Board should clarify its rulings with respect to hearing time to be devoted to f urther, post-exercise FEMA testimony during the week of

April 26. Under the NRC Staff's proposal made before Judge j

Laurenson at the February 25 conference, licensees understood that Staff and FEMA would share their time (Tr. at 68, 99),

and did not understand that FEMA time was to be excluded from the aggregate ten days that were proposed. The four days of hearing time provided in the March 7 Order for receipt of f testimony from FEMA concerning the results of the emergency

! planning exercise is particularly perplexing since FEMA

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counsel estimated that presentation of its post-exercise l

j testimony would take no longer than a day (Tr. 99)*

• Post-exercise FEMA testimony could not, under the cross-examination limits proposed by the Recommended Decision ,

exceed 2 and 1/2 hours in any event, see Recommended Decision at 19 (but see below). Thus the Board's March 7 ilailgram Order is inconsistent with the Recommended-Decision it purports to adopt, since it provides for four days of post-exercise FEMA testimony.

e-Second, Con Edison submits that the Board should amend its March.7 Order to make explicit what was evidently implicit in 'the Recommended Decision, namely that ' panels of witnesses will be permitted only when tne testimony is jointly authored-by collaborators. Otherwise,-the Recommended Decision would be meaningless, since large numbers of witnesses with inde-pendent testimony could be "run through" the hearing and their testimony admitted into the record for the truth of the matters stated under the guice of a panel, and with but an aggregate hour of cross-examination.

The Board has recognized that after-the-fact "paneliza-tion" was the reason why past efforts to manage the Questions 3 and 4 phase of the case " broken down" (Transcript of January 26, 1983 at 6938), yet limitation of panel presentation to jointly-authored testimony is not expressly provided in the Recommended Decision or the March 7 Order, and inappropriate panelization would create particularly acute problems with limitations on cross-examination in effect. For example,  !

under intervenors ' February 7 proposal, six school administrators (with entirely independent tes timony ) were proposed as a

" panel." Unless panelization abuses were specifically excluded, the testimony of each could theoretically be admitted with but an aggregate of 10 minutes of Licensee cross-examination for each.

Third, the Board should relax the cime limitations  ;

on cross-examination for specified witnesses, after either efforts by_the parties to agree upon certain witnesses who cannot fairly be creas-examined within the enumerated

- time period, or f ailing agreement, a further limited referral to Alternate Judge Laurenson for this purpose.

(Judge Laurenson has read all of the testimony and is thus presumably in a position to evaluate which would necessarily require more lengthy cross-examination. )

While the great bulk of witnesses might be subject to cross-examination within the time periods recommended, there are a handful of witnesses offered by various parties who, by the intrinsic nature of their testimony, cannot be cross-examined within such periods. Certainly I it is as unrealistic to expect intervenors to complete their cross-examination of post-exercise FEMA witnesses on April 26 in one hour as it is to expect each licensee to complete its cross-examination of such expert intervenor I witnesses as Erikson, Lifton and Altschuler within one-half l hour.

The " applicable law" cited in the Recommended Decision does not support the gross and inflexible i limitations on cross-examination suggested. In each of the cases cited, in Judge Laurenson's words " cross-examination

[was limited] to the length of time taken for direct examination." The mere fact that under 11RC practice testimony is pre-filed does not prevent this Board from i

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doing what was obviously done in the court cases upon which its decision relies: make some effort to match the duration of cross-examination with the length and complexity of the affirmative testimony.*

Licensees emphasize that for the great majority of witnesses, cross-examination can be confined to the suggested duration. However, the Board should modify its March 7 Order to explicitly recognize that there are certain enumerated witnesses who are not subject to those limitations. Since overall cross-examination can .a licensees' opinion be limited to the time periods stated in the Recommended Decision, one basis for remaining "on schedule" would be to permit each party to cumulate unused cross-examination time from the majority of " uncomplicated" witnesses, to be

• Although not directly relevant to the relief sought here, we are constrained to respond to the remark in the Recommended Decision that "I am disappointed that the licensees did not identify testimony which they believe should be eliminated. If they had done so and if intervenors had been given the opportunity to res-pond, I believe that I could have performed that part of the Board's charge to me to ' recommend elimination of testimony that is argumentative, cumulative, repe-titive or irrelevant.'" It would have been presumptuous for licensees to suggest which of ten parents, or which of seven nursery school teachers fit or did not fit the standard of exclusion in the Board's charge to Judge Laurenson. The entire drust of licensees '

position is that followed in the court cases cited in the Recommended Decision namely that a fixed period of time should be allocated for testimony from various parties, and those parties should themselves prioritize which witnesses they wish to present within the time allocated.

used for more lengthy cross-examination of witnesses whose testimony actually merits it.

Finally , the Board 's Order . adopting the Recommended I

Decision abould be modified to insure that all parties be informed as to which of the melange of 140 witnesses intervenors will be presenting in their.five days, and the order of i .

presentation of those witnesses. The requirements in the March 7 Order requiring some of this information to be sup-

' plied by Friday, March 11 is plainly insuf ficient advance warning of which of 140 witnesses -- and in which order i

licensees will be required to face four days later. Inter-venors should at a minimum be required to specify the schedule for March 15 and 16 by March 9. While it is impossible, of course, to specify the definite times for each of the mass of witnesses, requiring all parties to i

present an order of witnesses will permit parties to adequately prepare crossexamination. Any failure to provide advance notice of when particular witnesses will take the stand would inevitably adversely af fect the pace and progress of the proceeding, as well as prejudice parties who have received inadequate notice.

Respe(CNully sfb;nitted ,

i Brent L.

BraHdefurgNY

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CONSOLIDATED EDISON GOMPANY OF MEW YORK, INC./

4 Irving Place /

New York, New York 10003 1 Dated: March 8, 1983 (212) 460-4600 New York, New York

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. UNITED STATED OF AMERICA

-' , NUCLEAR REGULATORY COMMISSIO!!

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 certify that I have served copies of bbtion of Consolidated Edison for Modification of the Board's March 7, 1983 Order Adopting the Recommended Decision of Alternate Board Member Laurenson and Notice of Appearance of Bernard L. Sanoff on Behalf of Consolidated Edison on the following indicated by asterisk by hand and for all others by Express mail this 8th day of March, 1983.

Shon Docketing and Service Branch ))+1r . Frederick J.Judge Administrative office of the Secretary U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Board Washington, D.C. 20555 U.S. Nuclear Regulatory Commission 4' James P. Gleason, Esq., Chairman Washington, D.C. 20555 Administrative Judge '

Laurenson 513 Gilmoure Drive 20901 f'JamesA.

Administrative Judge Silver Springs, Maryland Atomic Safety and Licensing (Dr. Oscar H. Paris Board Administrative Judge U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Board Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555

s Pzul F. Colarulli, Erg. Charles J. Maikish, Esq.

Joseph J. Levin, Jr., Esq. Litigation Division Pamela S. Horowitz, Esq. The Port Authority of' Charles Morgan, Jr., Esq. New York and New Jersey Morgan Associates, Chartered One World Trade Center 1899 L Street, N.W. New York, New-York 10048 Washington, D.C. 20036 Ezra I. Bialik, Esq.

Charles M. Pratt, Esq. Steve Leipsiz, Esq.

Stephen L. Baum New York State Attorney Power Authority.of the State General's Office of New York Two World Trade Center i 10 Columbus Circle New York, New York 10047 New York, New York 10019 Alfred B. Del Bello Ellyn R. Weiss, Esq. Westchester County Executive William S. Jordan, III,-Esq. 148 Martine Avenue Harmon & Weiss White Plains, New York 10601 1725 I Street, N.W., Suite 506 Washington, D.C. 20006 Renee Schwartz, Esq.

Paul Chessin, Esq.

Joan Holt, Project Director Laurens R. Schwartz, Esq.

Indian Point Project Botoin, Hays, Sklar & Herzberg New York Public Interest 200 Park Avenue Research Group New York, New York 10166 '

9 Murray Street New York, New York 10007 Stanley B. Klimberg New York State Energy Melvin Goldberg 2 Rockefeller State Plaza Staff Attorney Albany, New York 12223 New York Public Interest Research Group Ruth Messinger 9 Murray Street Member of the Council of the New York, New York 10007 City of New York District #4 Jeffrey M. Blum City Hall New York University Law School New York, New York 10007 423 Vanderbilt Hall Washington Square South Marc L. Parris, Esq.

New York, New York 10012 County Attorney County of Rockland Donald Davidoff, Director 11 New Hempstead Road Radiological Preparedness New City, New York 10010 Group Empire State Plaza Craig Kaplan, Esq.

Tower Building - Room 1750 National Emergency Civil Albany, New York 12237 Liberties Committee 175 Fifth Avenue - Suite 712 New York, New York 10010 l

• . o J0:n Milcs Alan Latman, Esq.

Indian. Point Coordinator 44 Sunset Drive New York City Audubon Society Croton-on-Hudson, New York 1052C 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 3. Fleisher New York, New York 10003 West Branch Conservation 443 Buena Vista Road Atomic Safety and Licensing New York, New York 10956 Board Panel U.S. Nuclear Regulatory Mayor F. Webster Pierce Commission Village of Buchanan

. Washington, D.C. 20555 236 Tate Avenue Buchanan, New York 10511

, Atomic Safety and Licensing Judith Kessler, Coordinator Appeal Board Panel Rockland Citizens for Safe U.S. Nuclear Regulatory Energy-Commission 300 New Hempstead Road Washington, D.C. 20555 New City, New York 10956 Richard L. Brodsky David H. Pikus, Esq.

Member of the County Legislature Richard F. Czaja, Esq.

Westchester County 330 Madison Avenue 1

County Office Building New York, New York 10017 White Plains, New York 10601 Phyllis Rodriguez, Spokesperson Amanda Potterfield, Esq.

Parents Concerned About- New York Public Interest Indian Point Research Group, Inc. .

P.O. Box 125 9 Murray Street, 3rd Floor Croton-on-Hudson, New Yoru -10520 New York, New York 10007 Charles A. Scheiner Janice Moore, Esq.

Co-Chairperson Office of the Execitive Westchester People's Action Legal Director Coalition, Inc. U.S. Nuclear Regulatory P.O. Box 488 Commission White Plains, New York 10602 Washington, D.C. 20555 Stewart M. Glass Regional Counsel, Room 1347 Federal Emergency Management Agency 26 Federal Plaza New York, New York 10278 w -m

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Jonnthan D. Fcinbsrg-

' ." New York' State Public Service Commission David B. Duboff Three Empire State Plaza Westchester People's Albany, New York 12223 Action Coalition 255 Grove Street Steven C. Sholly White Plains, New York 10601 Union of Concerned Scientists Spence W. Perry 1346 Connecticut Avenue, N.W. Office of General Counsel Suite 1101 Federal Emergency Washington, D.C. 20036 Management Agency 500 C Street Southwest David Lewis, Esq. Washington, D.C. 20472 gAtomicSafetyandLicensing Board Panel Andrew S. Roffe, Esq.

U.S. Nuclear Regulatory New York State Assembly Commission Albany, New York 12248 Washington, D.C. 20555 Dated: March 8 New York,1983-New York t CA Q Q/

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