ML20071E532
| ML20071E532 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 03/09/1983 |
| From: | Brandenburg B, Colarulli P CONSOLIDATED EDISON CO. OF NEW YORK, INC., MORGAN ASSOCIATES, POWER AUTHORITY OF THE STATE OF NEW YORK (NEW YORK |
| To: | NRC COMMISSION (OCM) |
| References | |
| ISSUANCES-SP, NUDOCS 8303100277 | |
| Download: ML20071E532 (32) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION *g3 v y _p g j ,
BEFORE THE COMMISSIONERS:
Nunzio J. Palladino, Chairman Victor Gilinsky John F. Ahearne s Thomas M. Roberts James K. Asselstine
)
In the Matter of )
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CONSOLIDATED EDISON COMPANY OF ) Docket Nos.
NEW YORK, INC. ) 50-247 SP (Indian Point, Unit No. 2) ) 50-286 SP
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POWER AUTHORITY OF THE STATE OF )
NEW YORK ) March 9, 1983 (Indian Point, Unit No. 3) )
)
LICENSEES' OPPOSITION TO INTERVENORS' MOTION FOR AN EXTENSION OF DEADLINES IN ORDER TO COMPLETE THE RECORD ON EMERGENCY PLANNING ISSUES IN COMMISSION QUESTIONS THREE AND FOUR Consolidated Edison Company of New York, Inc. and the Power Authority.of the State of New York, licensees of Indian Point Units 2 and 3, respect ively, hereby oppose Intervenors' Motion For An Extension of Deadlines In Order To Complete The Record On Emergency Planning Issues In '
Commission Questions Three and Four (Feb. 28, 1983) l (Motion).
The recent recommendations of specially-appointed Judge James A. Laurenson and their acceptance by the At omic Safety 1 and Licensing Board (Board) presiding over the Indian Point I proceeding establish what the licensees have maintained for 4
8303100277 830309 PDR ADOCK 05000247 G PDR
many months: the present schedule can be met given proper and necessary restraints upon the intervenors' presentation of cumulative, repetitive, and irrelevant testimony. See Recommended Decision (March 4, 1983) (Attachment A); Mail-gram (Mar. 7, 1983) (Attachment B). Accordingly, because the Board has resolved this scheduling question, the inter-venors' motion befvre the Commission should be denied.
_B_ACKGROUND In June 1982, the licensees filed testimony under Commission Questions 3 and 4 for 12 witnesses, the State of New York filed testimony for 2 witnesses, and the Commission j Staff and the Federal Emergency Management Agency filed testimony for 6 witnesses.
At the same time, the intervenors filed testimony for i
more than 170 witnesses.
The Board directed that the intervenors submit a pro-posal "with the object of paring . . . the list." Trans-cript of Proceedings at 1064 (June 17, 1982). When it found the response inadequate, the Board " perform [ed3 that paring job," id., and ruled that "the intervenors will be permitted to present for formal filing in the record the testimony of 50 wi tnesses. " Id. at 1191 (June 18, 1982). The Board then qualified this limitation by allowing the intervenors to ,
group their witnesses in panels, each of which would be treated as one witness. Id. at 1198. The presentation of
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the first panel, a group of police chiefs, made clear that this method would not, in most instances, reduce the hearing time because the individually-filed testimony required individual. cross-examination of each member of.the panel. ,
Following the suspension of hearings by the Board, evidentiary haarings recommenced on the risk issues of the ,
proceeding, Questions 1 and 2. To date, more hearing time has been devoted to consideration of emergency planning
, issues under Questions 3 and 4 in the Indian Point hearing I than on any other topic. As was recently noted, the Board i
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has heard testimony on "27 witnesses in 18 days comprising I more than 4500 pages of testimony plus written direct testimony. Some of the 27 witnesses have.not been cross-examined and others may be recalled for further cross-examination." Recommended Decision at 9.
Because intervenors continued to refuse to limit the ,
number of witnesses that they would present, the Board on February 17, 1983, appointed James A. Laurenson as a special 3
judge to address the question of scheduling emergency plan-i i ning witnesses. Judge Laurenson filed a Recommended Deci-4 sion on March 4, 1983, which proposed a schedule consistent i
with the Commission's July 29, 1983 deadline. On March 7, 1983, the Board adopted with minor modifications JL44 Laurenson's recommendations.
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ARGUMENT The intervenors, who have failed to heed the Board's direction that they reduce their number of witnesses, and who have repeatedly accused - the licensees of attempting to delay this proceeding, are now seeking Commission action which would delay by at least one month the Commission's receipt of the Board's recommendations. Motion at 2.1 The licensees oppose this effort and concur in the Commission's position that the Board's recommendation be received by July 29, 1983, see Order at 1 (Dec. 15, 1982) (Commission sets July 29, 1983 deadline for Board recommendations), so that the Commission can expeditiously conclude this proceeding.
Judge Laurenson, addressing the issue of the emergency '
planning witnesses, recommended no changes that would require an extension of the Commission's deadline, although his authority to lengthen the evidentiary hearing was clear. Transcript of Proceedings at 8465 (Feb. 17, 1983);
id. at 8286 (Feb. 16, 1983). In fact, Judge Laurenson believed that an addition of only two hearing days on emergency planning issues would suffice for a fair and adequate presentation of the intervenors' and other parties' l
- 1. See Intervenots' Proposed Schedule for Testimony on Commission Questions 3 and 4 and Modified Schedule for Remainder of Special Proceeding at (unnumbered) 4 (Feb. 11, 1983).
witnesses. Recommended Decision at 18. Judge Laurenson's
" review of the written direct testimony of intervenors' 170 witnesses led [him] to conclude that the majority of it was of little or no procative value in ligh' of the state of the record at the present time." Recommended Decision at 16 (emphasis added). He further concluded that "much" of intervenors' testimony is "of questionable materiality and frequently repetitious." Id. at 11.
On March 7, 1983, the Board accepted Judge Laurenson's recommendations. Specifically, the Board has increased by two the number of hearing days devoted to emergency plan-ning,1 har imposed time limits on cross-examination, and has allocated the ten hearing days among the parties. Mailgram at 1 (Mar. 7, 1983).2 The Board also required the inter-venors to " provide their list of witnesses to all parties by March 11, 1983." Id. at 2.
In their Motion filed prior to the issuance of Judge Laurenson's recommendation and the Board's Order, the
- 1. The Board also reaffirmed its decision to hold four days of hearings on FEMA testimony concerning the results of the emergency planning hearings scheduled for March 9, 1983. Mailgram at 1.
- 2. The licensees have submitted their comments on the Board's Order directly to the Board. Power Authority's Motion to Modify Memorandum and Order (Schedule on Commis-sion Questions 3 and 4 and Notice of Hearing) (Mar. 8, 1983); Motion of Consolidated Edison for Modification of the Board's March 7, 1983 Order Adopting the Recommended Decision of Alternate Board Member Laurenson (Mar. 8, 1983).
intervenors claimed that they had "eliminat[ed3" twenty-eight of their witnesses. Motion at 2. However, it should be emphasized that these witnesses will not appear because the licensees agreed to stipulate as to the content of their testimony and agreed to refrain from cross examining them.
1 The intervenors also argued that they had compromised by grouping their witnesses in panels. Id. This, too, is a hollow claim. The intervenors' panels" do not consist of groups of witnesses offering a single, integrated piece of testimony. Rather, the " panels" consist of up to ten indi-viduals, each offering an individual piece of testimony.
Previous experience has shown that no hearing time will be saved by the intervenors' belated establishment of " panels."
As Judge Laurenson noted the bundling together of a large number of these disparate witnesses, who have maybe a common thread running through their testimony because they are all parents or they are all police chiefs or they are all school teachers or what-ever, may the [ sic] be unfair in terms of the time allowed for cross-examina-tion.
Transcript of Conference at 80 (Feb. 28, 1983). Thus, the intervenors have not sacrificed by grouping their witnesses; rather, they have made the licensees' cross-examination more confusing and burdensome.
The Board has once again properly placed the responsi-bility of reducing the number of intervenors' witnesses on the intervenors, requiring them to file a new witness list
for their five days of allocated hearing time by Friday, March 11, 1983. Mailgram at 1-2. Accordingly, the Board's March 7 Order scheduling the remainder of the emergency planning testimony makes moot the intervenors' request that the Commission extend its deadline for receipt of the Board's recommendations. Therefore, the intervenors' Motion should be denied.
esp tfully submitted, I BrentLP L.7randenbt&g u" g e W arles Morgan,'Jr.
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 Unit 2 Washington, D.C. 20036 4 Irving Place (202) 466-7000 New York, New York 10003 (212) 460-4600 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: March 9, 1983
,,., Attachment "A"
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UNITED STATES OF AMERICA NUCLEAR REGULATOPY COMMISSION ATOMIC SAFETY AND LICENSING BOARD ',-
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Before the Alternate Board Member Administrative Law Judge James A. Laurenson .pr?.0 MAR N 1983
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In the Matter of CONSOLIDATED EDISON COMPANY Docket Nos. 50-247-SP OF NEW YORK 50-286-SP (Indian Point, Unit No. 2)
POWER AUTHORITY OF THE STATE (ASLBP 81-466-03 SP) t OF NEW YORK !
(Indian Point, Unit No. 3) March 4, 1983 RECOMENDED DECISION I. JURISDICTION AND PROCEDURAL HISTORY On February 17, 1983, I was appointed by the Atomic Safety and Licensing Board pu'rsuant to 10 CFR 52.722(a)(3) as an Alternate Atomic Safety and Licensing Board Member "to make reconnendations in an l
on-the-record report to the Board as to a. fair and efficient method for
! receiving evidence on Connission Questions 3 and 4 in order to 1
i accomplish an expedited hearing schedule." The Board order listed eight specific things I was to do. The first six directed me to do things e ,. . . , - . - -.---.---,*,A.,,, .__,9 ,- -.
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Board. Other parties have expressed an interest in submitting testimony concerning their evaluation of the exercise. I find that all of these requests concerning testimony dealing with next week's exercise is beyond the scope of the matters assigned to me and I express no recommendation on any of these requests. j Immediately upon my appointment as an Alternate Board Member herein I issued an order scheduling a conference concerning the procedure for taking evidence on Commission Questions 3 and 4. The ,
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conference was held on Monday, February 28, 1983 in New York City.
Prior to the hearing, the parties were directed to confer and discuss specific matters concerning proposed and possible stipulations; allocation of hearing dates; identification and elimination of argumentative, cumulative, repetitive or irrelevant testimony; possible limitations on the time allowed for cross-examination; and the order of presentation of evidence. Prior to the hearing, written proposals concerning the scheduling and/or limiting of testimony on Commission Questions 3 and 4 were filed by the following: both licensees, intervenors, NRC Staff, and State of New York Department of Public Service. Other documents filed which relate to the subject matter herein are as follows: letter from Craig Kaplan, Esq. dated February 18, 1983 requesting an opportunity to reschedule the testimony of Dr. Simos; letter from Assemblyman Richard L. Brodsky dated February 21, 1983 regarding the proposed testimony of Roger Seasonwein; l
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such as examine the existing record on Ouestions 3 and a, review l profiled testimony, review the recomendations of the parties concerning f the subject matter of my appointment, conduct hearing conferences, assist in negotiating stipulations, and explore agreements to reduce the testimony by various means. The crux of the matter is set forth in [
items 7 and 8 and they are as follows:
- 7. Recomend elimination of testimony that is ;
argumentative, cumulative, repetitive or irrelevant. '
- 8. After reducing testimony and cross-examination l to a minimum consistent with the accomplishment of i a complete and reliable record on the contentions under Comission Questions 3 and 4, to recomend how ;
the receipt of such testimony and cross-examination :
can be carried out with minimum disruption of the !
Board's schedule." l L
The sched:;1e of the Board concerning the taking of evidence on l l
Comission Questions 3 and 4 and the contentions thereunder is as ;
t follows: (1) Four hearing days during the week comencing on Tuesday, !
March 1,1983, from 9:00 a.m. to 5:00 p.m.; (2) Four hearing days during -
the week commencing on Tuesday, March 15, during the same hours; I and (3) Four hearing days during the week comencing on March 22, during the same hours. I will make no comments concerning scheduling witnesses during the week of March 1,1983. f I also note that an emergency planning exercise is scheduled during the week of March 8, 1983. The Federal Emergency Management Agency
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(hereinafter " FEMA") hss filed a request concerning the date on which [
i' their report evaluating next week's exercise will be submitted to the i
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3 Board. Other parties have expressed an interest in submitting testimony concerning their evaluation of the exercise. I find that all of these requests concerning testimony dealing with next week's exercise is beyond the scope of the matters assigned to me and I express no !
recomendation on any of these requests. ,' '
l Immediately upon my appointment as an Alternate Board Member ;
herein I issued an order scheduling a conference concerning the i
procedure for taking evidence on Commission Questions 3 and 4. The l conference was held 'on Monday, February 28, 1983 in New York City.
Prior to the hearing, the parties were directed to confer and discuss specific matters concerning proposed and possit'.e stipulations; allocation of hearing dates; identification and elimination of argumentative, cumulative, repetitive or irrelevant testimony; possible :
limitations on the time allowed for cross-examination; and the ordar of presentation of evidence. Prior to the hearing, written proposals concerning the scheduling and/or limiting of testimony on Comission ,
Questions 3 and 4 were filed by the following: both licensees, intervenors, NRC Staff, and State of i;ew York Department of Public l Service. Other documents filed which relate to the subject matter !
herein are as follows: letter from Craig Kaplan, Esq. dated February 18, 1983 requesting an opportunity to reschedule the testimony of l l
Dr. Simos; letter from Assemblyman Richard L. Brodsky dated )
February 21, 1983 regarding the proposed testimony of 'loger Seasonwein;
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4 and a request from the Westchester County Executive to be permitted to call two additional witnesses.
II. THE HEARING OF FEBRUARY 28, 1983 All parties and interested states, except Rockland County and Rockland Citizens for Safe Energy, were represented at this hearing.
The parties reported that a meeting was held on Friday, February 25, 1983 among the licensees, intervenors, the Staff and the State of New York to discuss the matters listed in my Order of February 17, 1983.
i The parties reported that 20 stipulations had been agreed upon and were being redrafted in final form. I directed the parties to submit those stipulations directly to the Board. Discussions were to continue on other proposed stipulations that had not been accepted by all parties.
The parties further reported that they agreed that intervenors should present their testimony first beginning on Tuesday, March 15, 1983. No other significant agreements or stipulations had been achieved at the February 25, 1983 meeting.
At the hearing, all parties were give n an opportunity to present their arguments and positions concerning various proposals which had been previously filed or were presented at the hearing.
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III. RECOMMENDATIONS OF THE PARTIES A. Licensees The proposals.and statements of Consolidated Edison and Power Authority of the State o# Mew York can be summarized as follows:
(1) the Soard should adhere to its announced ~ schedule of hearing only
) two more weeks of testimony on Commission Questions 3 and 4 l
(T. 118-120); (2) while restrictions should be placed on cross-examination, any arbitrary limitations are opposed (T. 42-43); and i
(3) much of the intervenors' prefiled testimony is repetitive, beyond j the scope of Commission Questions 3 and 4, innaterial, and, at best, of
) marginal use. Licensees vociferiously oppose any time limitations on i
their cross-examination of witnesses called on behalf of intervenors.
i They especially oppose limitations concerning the cross-examination of j
- expert witnesses. (T. 115). They have not cpecifically identified any proposed testimony which could be eliminated as argumentative, I cumulative, repetitive, or irrelevant. (T. 89-94).
i B. Intervenors
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At the outset of the hearing, intervenors requested that ten
- hearing days and two evenings be allocated to their joint direct case on emergency planning. They acknowledged that this could not be accomplished without an extension of the current schadule. During the course of the hearing, intervenors indicated that if there were effective limits on cross-examination of their witnesses, they would 4
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6 reduce their request to eight days and two evenings. (T. 54). Later, they indicated that they would be interested in a compromise proposal with limited cross-examination if they could have seven days allocated to their case. (T. 116-7). Intervenors indicated that they would agree to limit their cross-examination of any individual witness or panel of witnesses to a total of one hour if similar limitations were placed upon licensees. (T. 54). They object to any attempt to strike their I
witnesses' testimony or preclude their witnesses from testifying in advance of the hearing. Rather, they believe that restrictions on time available to present their case are less onerous. (T. 58).
C. NRC STAFF it was the position of NRC Staff that an allocation of days available for the presentation of evidence was preferable to limiting I
in advance of the hearing the number or identification of witnesses who could testify. (T. 74). Staff believes that it can present the remainder of its case in one day and is willing to limit its cross-examination of any witness to a period of one-half hour which it will share with FEMA. (T. 65). FEMA concurs in this proposal.
(T.68). .
NRC Staff submitted a compromise proposal to complete the
! presentation of testimony on the contentions under Comission Questions 3 and 4 as follows: (1) the number of days available for hearing in each of the remaining two weeks shall be extended to at least five and possibly six; (2) the proposal assumes the imposition of some
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7 limitations on cross-examination; and (3) in the event ten remaining hearing days are available for allocation, they should be distributed as follows:
Intervenors - five days.
Licensees - two days.
Staff - one day.
New York State Department of Public Service - one day.
Rockland County - one-half day.
Westchester County - one-half day.
In the event the hearing. schedule is expanded to six days a week, the additional two days should be allocated to intervenors. In any event, NRC Staff proposed that the length of time scheduled for the hearing should be extended to 6:00 p.m. (T. 105-6). <
IV. APPLICABLE LAW There is precedent for imposing reasonable limitations on direct examination and cross-examination in decisions of the courts and the Atomic Safety and Licensing Appeal Board. In SCM Corp. v. Xerox l
Corp., 77 F.R.D.10 (D. Conn.1977), District Judge Newman, after !
hearing 14 weeks of trial of an antitrust case, reviewed the applicable
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case law, treatises, and the Manual for Complex Litigation. He also considered Rule 403 of the Federal Rules of Evidence which provides that
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l even relevant evidence may be excludad if its probative value is substantially outweighed by several factors including " undue delay" and
" waste of time." He concluded, "[h]owever, in a protracted case such as this, the purpose of the rule can best be achieved by considering time in the aggregate and leaving to counsel the intital responsibility for making individualized selection as to the relative degree of probative After value of the mass of evidence available." 77 F.R.D. at 13.
considering all of these factors, Judge Newman put an absolute limit on the number of trial days available to the plaintiff to complete the presentation of its case-in-chief and limited cross-examination to the length of time taken for direct examination.
In MCI Communications Corp. v. American Telephone and Telegraoh Co., 85 F.R.D. 28 (N.D. Ill. 1979), the court was confronted with another protracted antitrust case. There, prior to the comencement of the trial, Judge Gr dy posed the issue thus, "Whether I have authority Id. at to impose reasonable time limits upon the conduct of the trial."
- 30. Judge Crady quoted portions of Judge Newman's decision in SCM Corp., suora, including the following passage from Wigmore, "It has never been supposed that a party has the absolute right to force upon an unwilling tribunal an unending and superfluous mass of testimony limited only by his own judgment and whim." 6 Wigmore Evidence 51907 (Chadbourne Rev. 1976). Thereupon, Judge Grady limited the presentation ,
I of plaintiff's case-in-chief to 26 trial days, limited cross-examination of each witness to approximately the length of time consumed by direct i
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9 i examination, and limited defendant's case to approximately the length of time ' consumed by plaintiff's case-in-chief.
In Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-252, 8 AEC 1175 (1975), the Appeal Board found, inter alia, that a licensing board could properly preclude or limit cross-examination and consolidate the presentation of cross-examination of several parties where appropriate.
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V. STATEMENT OF THE PROBLEM As of the date of my appointment as an Alternate Board Member in this case, the Board had heard testimony on Questions 3 and 4 and their underlying contentions as follows: 27 witnesses in 18 days comprising
- more than 4500 pages of testimony plus written direct testimony. Some of the 27 witnesses have not been cross-examined and others may be recalled for further cross-examination. In addition to Questions 3 and 4 which deal with emergency planning, the Commission directed four other substantive question; to this Board. The final recosmendations of the Board to the Nuclear Regulatory Commission on all pending questions are due on. July 29, 1983. The Board has not yet heard evidence concerning Commission Questions 5 and 6. Thereafter, the parties must file proposed findings of fact and conclusions of law. In short, there is not enough time available to permit intervenors to call every potential witness who may have some relevant testimony concerning emergency 4
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10 planning or to allow licensees an unlimited right of cross-examination of those witnesses. Counsel for Consolidated Edison estimated that it would take a total of 62 days to hear all evidence on Questions 3 and 4.
(T. 44).
VI. OPINION -
Neither the right to present evidence nor the right to ,
cross-examine evidence submitted by an opponent is without limitation.
However, any limitation on these rights must be fair, evenhanded and necessary. Considering the amount of time already devoted to hearing testimony concerning these questions, the adoption of.certain stipulations of fact, and the representations and arguments cf all .
parties, I conclude that the Board should impose reasonable restrictions on the intervenors' right to present direct evidence through witnesses and upon the licensees' rights to cross-examine such witnesses.
As I noted supra, the Board has already spent 18 days listening to 27 witnesses on Commission Questions 3 and 4. Intervenors now propose, even if all of their proposed stipulations are accepted, to call an additional 110 witnesses. Intervenors Proposed Schedule for Testimony
- (February 11,1983). While licensees complained vociferously about the 1
magnitude of attempting to cross-examine that number of witnesses, they do not identify prefiled testimony that they believe to be "argu:aentative, cumulative, repetitive or irrelevant." (T. 89-94). In l
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, 1 11 fact, counsel for PASN' stated, "we don't think that the way this hearing ought to wo x is that the intervenors dump 175 witnesses on the I table and then it is up to the licensees or the judge or now yourself to sort out what is cumulative and what is irrelevant." Id. 92-93. Since !
licensees have not taken any steps toward identifying testimony which could be eliminated under the Board's Order of February 17, 1983, I would be acting sua sponte in any such venture. While I have read all of the testimony submitted by the intervenors and I find much of it to be of questionable materiality and frequently repetitious, I conclude that a judge acting sua sponte to strike significant portions of such testimony would probably make errors which could deprive intervenors of the opportunity to present their case as they see fit. Rather, I am i
persuaded by Judge Newman's rationale in SCM Corp., supra, that a better way to control this hearing is to allocate aggregate amounts of time and
, leave to counsel the initial responsibility for making the selections as to the degree of probative value from the mass of evidence available.
See my additional comments, infra, concerning " Limitations on the Number of Witnesses to be called by Intervenors."
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 respond, 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, repetitive or irrelevant." Under the above circumstances, I do not make any such 1
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recommendation. However, this does not mean that the remainder of the assignment must fail. I believe that time is relevant in the conduct of litigation and that methods must be found to shorten and simplify lengthy hearings.
! A. Limitations on Cross-examination Since the NRC follows a rule requiring the filing of direct j testimony of witnesses in written fom,10 CFR 52.743, the standards employed by the judges in SCM Corp. , supra and MCI Comunications Corp. ,
supra are not applicable here. However, in order to fairly allocate the
- time available for hearing testimony on Comission Questions 3 and 4, some limitation must be placed on the right of cross-examination. To fail to do so would pemit an opponent to effectively preclude a party from presenting its case by conducting extensive yet plausibly relevant cross-examination. Illustrative of this problem is what transpired before the Board on the afternoon of June 23, 1982. During the afternoon session, intervenors called the Chiefs of Police of two local comunities. After overruling numerous objections, the direct testimony of these two witnesses was received in evidence. Thereafter, extensive cross-examination took place. The cross-examination was punctuated with frequent objections to the entire line of questioning because it war "taking up quite a bit of time unnecessarily." (T. 1706). At the conclusion of the afternoon session, almost four hours after it began,
- the parties had questioned only one of the witnesses. More recently, on L
13 January 10, 1983, Westchester County presented witness Daniel P. Guido, Connissioner/ Sheriff of the Department of Public Safety with 5 pages of direct testimony. Nevertheless, the interrogation of this witness covered 124 pages of the transcript and lasted for more than half a day.
(T. 4916-5040).
As I noted supra, the five intervenors are willing to limit their aggregate cross-examination of any witness or panel of witnesses to one hour. NRC Staff and FEMA are willing to limit their combined cross-examination of such witnesses to one-half hour. Licensees refuse to make any concession on limiting their right of cross-examination. I have considered their arguments, but I find them outweighed by the other factors enumerated above. Specifically, I reject their claim that they have a due process right quaranteed by the U.S. Constitution to conduct cross-examination without advance limitation. The decisions of the district courts in SCM Corp., supra and MCI Communications Corp., suora refute that contention. Moreover, I find that the participants have wasted a great deal of time by failing to focus their cross-examination.
Therefore, I reconnend that the Board impose time limits on all participants concerning their cross-examination of witnesses and that these limitations be enforced. I believe that thi; will require all parties to concentrate on significant matters without depriving any one of a fair hearing. For this purpose, I have grouped the participants into four catagories as follows: (1) licensees; (2) intervenors; (3) NRC Staff and FEMA; and (4) interested states. I recomend that i
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each party within the above groupings not be permitted to question witnesses called by any other party within that grouping absent a specific showing of exceptional need. I further recommend that in applying the following limitations concerning cross-examination, any time spent on interregation by the Board not be included in these catagories. Furthermore, the Board should support each cross-examiner in controlling witnesses and obtaining direct responses to questions.
Attorneys or representatives for the witness should not be permitted to interrupt needlessly. If they do so, the amount of time taken for such interruptions should be added to the time allowed for cross-examination.
With these factors in mind, I recommend that cross-examination of witnesses on Commission Questions 3 and 4 be limited as follows:
Licensees - one hour.
Intervenors - one hour.
NRC Staff / FEMA - one-half hour.
Interested States - one-half hour.
Intervenors and NRC Staff / FEMA have indicated that they will be able to allocate the above times among themselves. Interested states who appear at each hearing should be given that opportunity before times are assigned to each. Since licensees have stated that they will not agree among themselves to divide the time allocated to them, the Board must do that for them. I reconnend that each licensee be given one-half-h6ur of cross-examination per witness or panel. Under these guidelines the 0
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l 15 l questioning of each witness or panel of witnesses should be completed in less than half a day.
B. Hearing Dates I am aware that the Manual for Administrative Law Judges recomends that in ordinary circumstances hearings be limited to five hours per day in order to avoid the effects of fatigue upn all participants. Ruhlen, Manual for Administrative Law Judges 65 (Rev. Ed.1982). In the instant matter, the schedule already calls for approximately seven hours of hearing per day. There has been a suggestion that this be enlarged to eight hours per day, evenings be added, and hearings be conducted five or six days a week. I find that the determination of the hours of taking testimony is a matter which should be left to the sound
. discretion of the Board without any recomendation from me. This is so because they are in a better position to evaluate the effects, if any, of fatigue upon the participants. However, in order for my proposed allocation of hearing days to be effective, the schedule for the remaining two weeks of testimony on Questions 3 and 4 will have to be expanded by at least one day each week to a total of ten more hearing days on Questions 3 and 4. These ten additional days would not include the time, if any, that the Board allocates to FEMA and others for testimony concerning the exercise scheduled for March 9, 1983. If the Board agrees to schedule ten days for further testimony as reconnended, those ten days should be allocated among the parties for the presentation of their witnesses as 'follows- ;
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Licensees - two days.
Intervenors - five days.
NRC Staff - one day.
Rockland County - one-half day.
Westchester County - one-half day.
C. Limitations on the Number of Witnesses to be Called by Inter /enors The fact that I have not recomended the elimination of certain testimony proffered by intervenors should not be construed as an indication of its admissibility. In fact,iny review of the written direct testimony of intervenors' 170 witnesses led me to conclude that the majority of it was of little or no probative value in light of the state of .the record at the present time. I previously stated my reasons for not recomending its climination at this time. However, it should be readily apparent from the suggested schedule of remaining days available to intervenors that even with limitations on cross-examination, only a fraction of their. witnesses will be able to testify. Frankly, I believe that this is a benefit rather than a flaw in my proposal. The intervenors should be given the opportunity to again review their schedule of proposed witnesses and cull out only those with significant testimony on the issues at hand.
Based upon my review of the record and the intervenors' proposed testimony, I submit my observations for the record. In my opinion, very little, if any, of the testimony proposed for panels of community witnesses is of any probative value. For example, I found nothing in
~..
17 the testimony of the panel of pastors which, by virtue of their positions as clergy, distinguishes their testimony from that of any other lay witness. The Board has already heard testimony from county and local officials concerning the subjects of transportation, schools, police, ambulance, reception centers, communications, condition of roads, and certain handicapped groups. In light of the limited time available for this matter, intervenors should take this opportunity to reexamine their list of witnesses and pare it to those who have relevant, material and probative evidence to offer. While I understand the intervenors' concern that affected residents of the area should be permitted to testify, I believe that this position should yield ta the necessity to present expert testimony on the subject of emergency planning in the limited time available.
If intervenors do not voluntarily reduce the number of proposed witnesses, but attempt to call the panels of connunity witnesses on subjects that have already been the subject of previous testimony, the Board should be prepared to rule on the admissibility of such evidence pursuant to 10 CFR 52.757.
l
e 18 VII. REC 0t91 ENDED ORDER As an Alternate Board Member, I believe that the recomendations contained herein constitute "a fair and efficient method for receiving evidence on Comision Questions 3 and 4" and I recomend that the Board ,
enter the following order:
- 1. The schedule should be expanded for the taking of testimony on Comission Questions 3 and 4 and the contentions thereunder to five days during the week comencing March 14 and five~ days during the week comencing on March 21.
- 2. The ten days allocated pursuant to paragraph 1. above are in addition to whatever time, if any, the Board decides to allocate to FEMA and others for testimony enncerning the emergency planning exercise of March 9, 1983.
- 3. The ten days allocated to complete the testimony should be divided among the parties for the presentation of their witnesses as follows:
Licensees - two days.
Intervenors --five days.
I NRC Staff - one day, i
New York State - one day.
Rockland County - one-half day.
Westchester County - one-half day.
i l
19
- 4. Cross-examination of witnesses shall be limited on Commission Questions 3 and 4 as follows:
Consolidated Edison Company - one-half hour.
Power Authority of the State of New York - one-half hour.
Intervenors - one hour.
flRC Staff / FEMA - one-half hour.
Interested States - one-half hour.
ATOMIC SAFETY AND LICENSING BOARD m - m JAM i A. LAUREN50N "
A1 nate Board Member and inistrative Law Judge Bethesda, Maryland this 4th day of March, 1983.
/
u , . ,, .- - ,_- , 4 , , _ , _ _, , _. ., _
- - - - - _ _ _ - _ _ _ _ _ _ _ _ m .
CA1LS20M SERV!;E CENTER '
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MTOOLETCWN, VA. 22645 e i
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0 1 0233571044004 03/07/63 TMX NRC=8HO 48M NYSA .
- Rt7:NRC. SE7MESDA, MD 20tt6 EST"03=07 ; m' ,
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> 't' I DAVID H. P!XUS, ESO. ,
! SMEA AND GOULO l 330 MA01 SON AVENilt f NEW 'ORM NY 10411 .
HS$ s $7237 .i REi CONSOLICATED E0!SO4 C0'. OF NEW40R4 (!N0! AN POINT 21 }
AND POWER ,AUTHQRITV 0F THE STATE OF NEW YORK CINogAq so!N1 3) ' ;.
00CMET NOS. 50=247 48, 30 244 88 !
MEMORANQUM AND ORDER (SCHECULE ON COMMIS$!ON GUESTIONS 1 ANO 4 .!
AND NOTICE OF HEAR!NG) I i, MAVING REVIEWE0 THE RECOMMEND ATIONS SUMMITTED ON M ARCH a.' 1963 I; BY ALTERNA7!VE 804R0 MEH8EM, JAMES A'. LAURENSON, ANO fME SECORD ON WHICH If WAS SASED, THE 80ARD MERE 3Y 4CCEPTS fME RgcoMwt90 Af t0NS, {
+
AMENDED A3 FOLLOWSt ,
i 1, THE SCHECULE FOR TEST!MGNY ON QUESff0NS 3 AND 4 FROM dARCH 13 i i
TO MARCH 18 AND MARCH 22 70 NARCM 25 SMALL SE EXTENDEO 70 INCLUDE THE DAYS MARCH 30 AND MARCH 31. fMESE HEARIN44 . ,
WILL St HELO IN THE CERE40N!al COURTRCOM OF THE 4ESTCHESTER COUNYY >'
COURTHOUSE,111 GROVE STREET, WHITE 8L AINS, NEW YORK'. .
- 2. AN A00!?IONAL WEEN 70 fME RRESENT SCH!OULE ==FROM AsR!L 26 1
__ 70 ARRIL 39/=!S ORDERED 70 RECE!VE TESf! MONY 7904 FEMA CONCERNING ,
THE RESULT OF THE ENERGENCY PLANNING EXCERCTSE SCHEOULEn,70R t MARCH 9, 1983. AN A(LOCATION 0F THE TIMES 70 SE ALLOWEO FOR '
j CROSS EXAMINAf!DN OF FEMA WITNESSES WILL 8E SET FORTH SY $U93E00ENT -
ORDER. . .
3 THE TEN CAYS ALLOCATED 70 COMPLETE TESffMONY SMALL 4E Otv!0E0 ,
l
! A8 POLLOWS1 .
l L!t?NSEES = TWO DAYS
! INTERVENORS . FIVE DAYS ..
NRC ST&FF = ONE CAY "
i NEW YORM STATE =,0NE CAY .
) ROCKLANO COUNTY = ONE=d4(P OAV (
/
!' WESTCHESTER COUNTY = CNE HALF O&Y l 4 CROSS $1AMINATTON OF WITNESSES INCluCINO PANELS SwALC S! t!w!?to AS POLL 0Mst
- 5 CCNED . ONE. HALF Hour PASNY = ONE. HALF HOUR INTERVENORs . ONE HOUA NRC STAF7/ FEMA = ONE= HALF HCUR )
INTERESTED $ FATES = ONE* HALF HOUR l YHE LICENSEES **f 'IT!LIIM CROSS-ET AMIN AT!cN 719E 09 4 OffrE9ENT f
L l
PAGE 2 ,
t *
- l. _ . _..
I
, t AL. LOCATION TMAN.IN0!CATED, BUT THE TOTAL. PERIOD OF TINE hER W!TNESS.
I. > OR PANEL CANNOT BE EXCEEDEO. INTERVENON3 MAY DIVt0E TMEr.2 Chess.
I I
EXAMINATTON TTHM BETWEEN TWO OR MORE INTERR00ATORS*.
- 5. ACESUATE CROS3-EXANZNATION PlANS, PUR8UANf TO 50A40 Se0ER 0F NOVEM8ER 15, 1982 47 22. MUST BE !N THE MANDS OF THE.f!0440 7 CNR DAY PRIOR TO TEsttMONY OF WITNESSES TO WHICH ?WEY A**t.Y'.
NON=4DVERS ARI AL Cross. EXAMINATION si!Lt. NOT SE ' PERMITTED',,
j( t,- IMipVEN343 .'5"3V!02 -TM!M b 37 -0." W:7'i!S30-3-70 ALL: PASTPE;-- '
SY MARCH 11, 1983, AND M0ff0NS 70 STRIXE, !F ANY. SMALL NE FTLES i BY MARCH 14, 1983, 30TM FILINGS 8 HALL SE IN= HAND RECE!PT SY -
)I THE A80VE DATES, ' '
j g FOR YME ATOMIC SAFETY ANS LICENg!Ng 801R0 PANEL
!' . ____9 EID_h W II ..
FOR L.v_?_-=_:=s=_as m e= w E _ v_____
JAMES P. GLIA 804 CHAIRMAN jl ADMIN!sTRATIVE JU0tt i
, SEfME404, MARYLAND jI MASCM 7, 1983 l
CU.S. WUCLEAR RESULATORY COMM185!0N
! MA8 MING'r0N DC 205553 II .
a 22i39 EST P MGMCOM* t
!s 4 ,
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4 TO REP'.Y 3Y mal'.GMM MC$$ AGE. $[E R!Y!Til SCf mg %[$7!.% ('MOh 7,10,1. rp,Tr PHONF NUMMRK
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE CCMMISSIONERS:
Nunzio J. Palladino, Chairman Victor Gilinsky John F. Ahearne Thomas M. Roberts James K. Asselstine
~)
In the Matter of )
)
CONSOLIDATED EDISON COMPANY OF ) Docket Nos.
NEW YORK, INC. -) 50-247 SP (Indian Point, Unit No. 2) ) 50-286 SP
)
POWER AUTHORITY OF THE STATE OF ) March 9, 1983 NEW YORK )
(Indian Point, Unit No. 3) )
)
CERTIFICATE OF SERVICE I hereby certify that on the 9th day of March, 1983, I caused a copy of Licensees' Opposition to Intervenors' Motion for an Extension of Deadlines in Order to Complete the Record on Emergency Planning Issues in Commission Questions Three and Four to be hand delivered to those parties marked with an asterisk, and served by first class mail, postage prepaid on all others:
- Nunzio J. Palladino, Chairman
- Thomas M. Roberts, Commissioner U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission ,
Washington, D. C. 20555 Washington, D.C. 20555 '
- Victor Gilinnky, Commissioner
- James K. Asselstine, Commissioner U.S. Nuclear Regulatory Commission U.S. Nuclear' Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555
- John F. Ahearne, Commissioner U.S. N; clear Regulatory Commission Washington, D.C. 20555
CJcmes P. Gleason, Chairman Charles M. Pratt, Esq.
Administrative Judge Stephen L. Baum, Esq.
Atomic Safety and Licensing Board Power Authority of the 513 Gilmoure Drive State of New York Silver Spring, Ma ryland 20901 10 Columbus Circle New York, New York 10019
- Mr. Frederick J. Shon Administrative Judge Janice Moore, Esq.
Atomic Safety and Licensing Board Counsel for NRC Staff U.S. Nuclear Regulatory Office of the Executive Commission Legal Director Washington, D. C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555
- Dr. Oscar H. Paris Administrative Judge Brent L. Brandenburg, Esq.
Atomic Safety and Licensing Board Assistant General Counsel U.S. Nuclear Regulatory Consolidated Edison Company Commission of New York, Inc.
Washington, D.C. 20555 4 Irving Place New Y ork, New York 10003
- Docketing and Service Branch Office of the Secretary Ellyn R. Weiss, Esq.
U.S. Nuclear Regulatory Commission William S. Jordan, III, Esq.
Washington, D.C. 20555 Harmon and Weiss 1725 I Street, N.W., Suite 506 Joan Holt, Project Director Washington, D. C. 20006 Indian Point Project New York Public Interest Research Charles A. Scheiner, Co-Chairperson Group Westchester People's Action 9 Murray Street Coalition, Inc.
New York, New York 10007 P.O. Box 488 White Plains, New York 10602 Jeffrey M. Blum, Esq.
New York University Law School Alan Latman, Esq.
423 Vanderbilt 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 and 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 Andrew S. Ro f fe, Esq.
New York State Assembly Albany, New York 12248
__ , ~ _ _.
r Marc L. Parris, Esq. Atomic Sufsty and Licensing Eric Thorsen, Esq. Roard Panel County Attorney U.S. Nuclear Regulatory Commission County of Rockland Washington, D.C. 20555 11 New Hempstead Road New City, New York 10956 Atomic Safety and Licensing Appeal Board Panel Phyllis Rodriguez, 3pokesperson U.S.-Nuclear Regulatory Commission Parents Concerned About Indian Washington, D.C. 20555 Point P.O. Box 125 Honorable Richard L. Brodsky Croton-on-Hudson, 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 Hemstead 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.
Shea & Gould Joan Miles 330 Madison Avenue Indian Point Coordinator New York, New York 10017 New York City Audubon Society 71 West 23rd Street, Suite 1828 Amanda Potterfield, Esq.
New York, New York 10010 New York Public Interest Research Group, Inc.
Richard M. Hartzman, Esq. 9 Murray Street, 3rd Floor Lorna Salzman New York, New York 10007 Mid-Atlantic Representative Friends of the Earth, Inc.
- David R. Lewis, Esq.
208 We : 13th Street Atomic Safety and New Yr 4, New York 10011 Licensing Board Panel U.S. Nuclear Regulatory Star / B. Klimberg, Esq. Commission Gens 1 Counsel Washington, D.C. 20555 New irk State Energy Office 2 Ro.xefeller State Plaza Albany, New York 12223
Mr.-Donald Davidoff Director, Radiological Emergency Preparedness Group Empire State Plaza Tower Building, 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.
Fitgerald, Lynch & Diederich 24 Central Drive Stony Point, New York 10980 -
Steven C. Sholly l Union of Concerned 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 i Federal Emergency Management Agency 26 Federal Plaza ,
New York, New York 10278 Melvin Goldberg Staff Attorney ,
New York Public Interest i Research Group l 9 Murray Street New York, New York 10007 i Jonathan L. Levine, Esq.
P. O. Box 280 ,
New City, New York 10958 l l
j !
( d6 Paul P. Tolaru W \
.