ML20071E859

Motion to Modify & Clarify ASLB Order on Schedule for Hearing Commission Questions 3 & 4.Arbitrary Limits on cross-examination Prejudicing Parties Should Be Rejected.Use of Panels Should Be Clarified.Certificate of Svc Encl

ML20071E859
Person / Time
Site:	Indian Point
Issue date:	03/08/1983
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 8303140343
Download: ML20071E859 (10)

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klJD UNITED STATES OF AMERICA _

NUCLEAR REGULATORY COMMISSION 'g3 M? 11 ATOMIC SAFETY AND LICENSING BOARD I27 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.

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

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X POWER AUTHORITY'S MOTION TO MODIFY MEMORANDUM AND ORDER (SCHEDULE ON ,

COMMISSION QUESTIONS 3 AND 4 AND NOTICE OF HEARING)

ATTORNEYS FILING THIS DOCUMENT:

Charles Morgan, Jr.

Paul F. Colarulli Joseph J. Levin, Jr.

MORGAN ASSOCIATES, CHARTERED 1899 L Street, N.W.

Washington, D.C. 20036 (202) 466-7000 m /'

DR ADO K O 27 G PDR l

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O Preliminary Statement Power Authority of the State of New York (" Power Authority"), licensee of Indian Point 3 Nuclear Power Plant, hereby moves the Board for an order modifying and clarifying the Memorandum and Order (Schedule on Commission Questions 3 and 4 and Notice of Hearing) in several limited respects.

The Power Authority generally supports most of the Board's approaches. In particular, we agree that the alloca-tion of hearing time among the parties is the only practical way to proceed.1 We also support the prohibition of non-adversarial cross-examination.

1 We note Judge Laurenson's " disappointment" that the li-ccasees did not identify testimony which they believe should be eliminated. (Recommended Decision at 11.) In fact, while the Power Authority's position -- supported by Consolidated Edison Company of New York, Inc. (" Con Edison") (Con Edison's Proposal for Scheduling Remaining Testimony at 6-9) and the Commission Staff (LT:74) -- is that a party should not be put in the position of deter-mining which witnesses an adverse party should call, we responded to Judge Laurenson's question on this issue by stating that all non-expert interve'orn witnesses could properly be stricken as irrelevant, immaterial, or cumu-lative (LT:93). (References to "LT: " denote citations to the transcript of the Special Conference conducted by Judge Laurenson; references to "T:__" denote citations to the main hearing transcript.) Moreover, Judge Laurenson himself noted that "the majority of [intervenors' testi-mony] was of little or no probative value in light of the state of the record at the present time." (Recommended Decision at 16.) Thus, we believe that the Board had a sufficient basis in the record for striking witnesses as well as allocating time among the participants.

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On the other hand, the Board's Order contains sev-eral items which, we submit, should be revised or clarified, including:

(1) limitations upon cross-examination; and (2) intervenors' use of so-called " pan-els".

(1) Arbitrary limitations on cross-examination which prejudice the parties should be rejected.

The Power Authority respectfully urges the Board to reconsider the arbitrary time limitations placed upon cross-examination. We have a standing objection to any limitation upon cross-examination which would prejudice the parties.

Both constitutional due process and the Commission's Rules of Practice guarantee a party's right "to conduct such cross-examination as may be required for full and true disclosure of the facts" (10 CFR 2.743(a)) and to protect the party's interests. The Commission's Rules provide a specific method for limiting unreasonable cross-examination:

To prevent unnecessary delays or an un-necessarily large record, the presiding officer uc,:

(c) Take necessary and proper measures to orevent argumentative, repetitious or cumulative cross-examination...

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10 CFR 42.757. In light of this established procedure, there is little reason to adopt arbitrary time limits which would, in many cases, cause prejudice.

The applicability of the 1/2 hour limit per li-censee for each witness, regardless of the length or impor-tance of his testimony, is particularly objectionable. Judge Laurenson conceded that the two cases he cite.d 2 in limiting cross-examination are inapposite, since the limitations on cross-examination were drawn in accordance with limits placed on direct testimony (which was not pre-filed). (Recommended Decision at 12.) Limitations would cause particular preju-dice if applied to cross-examination of intervenors' expert witnesses, some of whose testimony may be more material and subject to closer scrutiny than the non-experts'. While the Power Authority continues to object to any time limits what-soever on cross-examination, we respectfully urge the Board, i

at the very least, to consider less draconian alternatives, such as:

(a) increasing time limitations on cross-examination of experts; or (b) allowing the parties to accumulate time not expended in crcss-examin-ing certain witnesses and apply it to the cross-examination of other witnesses.

2 Judge Laurenson cited SCM Corp. v. Xerox Corp., 77 F.R.D.

10 (D. Conn. 1977) and MCI communications Corp. v.

American Telephone and Telegraph Co., 85 F.R.D. 28 (N.D.

Ill. 1979).

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(2) The use of panels should be clarified.

The Power Authority further requests that the Board clarify its order with respect to the use of panels. We have no objection, per se, to the presentation of multiple witnes-ses as a panel. We'do object, however, to the belated com-bination of witnesses who have each pre-filed their own, separate direct testimony into artificial " panels" for the purported purpose of saving time. In fact, the use of panels saves no time at all unless the testimony was originally pre-filed in panel form. As the Board itself has recognized, this device was responsible for the collapse of prior efforts to manage the hearings. (T:6938.) Judge Laurenson also 4

questioned the fairness of combining " disparate witnesses."

(LT:80.)

If time limitations on cross-examination are in fact adopted, the Power Authority respectfully urges the Board to clarify that the time limitation shall apply indi-vidually to each witness, regardless of how the witness is presented, unless the testimony was originally pre-filed in panel form.

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k i Respectfully submitted,

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CharlesMorgan,Jr.]

Paul F. Colarulli Q

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 Curlei-Richard F. Czaja David H. Pikus SHEA & GOULD 310 Madison Avenue New York, New York 10017 (212) 370-8000

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! Dated: March 8, 1983 l

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.h UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrat. . Judges:

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

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In the Matter of ) Docket Nos.

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

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

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CERTIFICATE OF SERVICE I hereby certify that copies of POWER AUTHORITY'S MOTION TO MODIFY MEMORANDUM AND ORDER (SCHEDULE ON COMMISSION QUESTIONS 3 AND 4 AND NOTICE OF HEARING) in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, this 8th day of March, 1983.

Docketing and Service Branch Ellyn R. heiss, Esq.

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

U. S. Nuclear Regulatory Harmon & Weiss 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 Satety 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 Office of the Executive l U.S. Nuclear Regulatory Legal Director Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555

• Mr. Frederick J. Shon Brent L. Brandenburg, Esq.

Administrative Juage Assistant General Counsel Atomic Safety and Licensing Consolidated Edison Co.

Board of New York, Inc.

U.S. Nuclear Regulatory 4 Irving Place 10003 Commission New York , N . Y.

Washington, D.C. 20555 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 Greater New York Council on Energy c/o Dean R. Corren, Director New York University 26 Stuyvesant Street New York, N.Y. 10003

O 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 Legislatu re Westchester County County Office Building White Plains, N.Y. 10601 Renee Schwartz, Esq. Pat Posner, 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 Office 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 i

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O 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

• David Lewis, Esq. Mr. Donald Davidoff Atomic Safety and Licensing Director, Radiological Board Panel Emergency Preparedness U.S. Nuclear Regulatory Group Commission Empire State Plaza Washington, D.C. 20555 Tower Building, RM 1750 Albany, New York 12237 Stewart M. Glass **Amanca Potterfield, Esq Regional Counsel Johnson & George, Attys at Law Room 1349 528 Iowa Avenue Federal Eraergency 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 Managca.ent Agency 500 C Street, Southwest Washington, D.C. 20472

. n David H. Pikus

• Service also ef fected by hand delivery on March 9, 1983.

• • Service also effected by hand delivery on March 8, 1983 at the offices of NYPIRG.