ML20074A446

Motion for Reconsideration of Ruling Denying Licensee Motion to Receive Dp McGuire Deposition Transcript Into Evidence. Licensees Entitled to Place Deposition in Record. Certificate of Svc Encl

ML20074A446
Person / Time
Site:	Indian Point
Issue date:	05/09/1983
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
ISSUANCES-SP, NUDOCS 8305130064
Download: ML20074A446 (15)

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NUCLEAR REGULATORY COMMISSID (f kw ' '$?' '

ATOMIC SAFETY AND LICENSIN -

Before Administrative Jud -BOARD ed:j4 */I)8 2 James P. Gleason, Chairmari g D f b

Frederick P. Shon W54

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Dr. Oscar H. Paris  ;

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x In the Matter of  : Docket Nos. 50-247 SP 50-286 SP CONSOLIDATED EDISON COMPANY OF  :

NEW YORK, INC. May 9, 1983 (Indian Point, Unit No. 2)  :

POWER AUTHORITY OF THE STATE OF  :

NEW YORK (Indian Point, Unit No. 3)  :

___________________________________x LICENSEES' MOTION FOR RECONSIDERATION OF RULING ON ADMISSIBILITY OF DEPOSITION ATTORNEYS FILING THIS DOCUMENT:

Charles Morgan, Jr. Brent L. Brandenburg Joseph J. Levin, Jr. CONSOLIDATED EDISON COMPANY OF Paul F. Colarulli NEW YORK, INC.

MORGAN ASSOCIATES, CHARTERED 4 Irving Place 1839 L Street, N.W. New York, New York 10003 Washington, D.C. 20036 (212) 460-4600 (212) 466-7000 8305130064 830509 DR ADOCK 05000247 PDR D

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Preliminary Statement Consolidated Edison Company of New York, Inc. (" Con Edison"), licensee of Indian Point Station, Unit No. 2 and Power Authority of the State of New York (" Power Authority"),

licensee of Indian Point 3 Nuclear Power Plant, (collectively l the " licensees") hereby move the Board:

(1) for recons.deration of its denial of licensees' motion to receive the transcript of the Examination Before Trial of Donald P. McGuire (the "McGuire deposition") into evidence, together with Mr. McGuire's pre-filed testimony (McGuire deposition exhi-bit 2); and (2) upon such reconsideration, to receive into evidence both the McGuire deposi-tion and exhibit 2 thereto.

Procedural Background The Board designated April 26-29, 1983 as dates for the hearing of evidence regarding the Indian Point emergency planning exercise conducted on March 9, 1983. This testimony was especially critical with respect to Rockland County. The Federal Emergency Management Agency's (" FEMA") December, 1982 interim findings cited emergency planning in Rockland County as an unresolved issue, as a result of Rockland County's withdrawal from further participation in the coordinated radiological emergency planning effort by the licensees, State of New York, and neighboring counties. The March 9

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exercise was to test, inter alia, the State's capability to implement its compensating plan, under which State personnel would direct the commitment of Rockland County resources.

Rockland County personnel participated in the exercise until 9:00 a.m., and observed the remainder of the event.

On April 12, 1983, Rockland County served the pre-filed testimony of Donald P. McGuire, Deputy Director of the County's Office of Emergency Services, regarding the exer-cise. McGuire, the official in day-to-day charge of emer-gency planning in Rockland County, was among the early parti-cipants and subsequent observers at the exercise. His testi-mony covers two critical areas: 1) Rockland County's offi-cial evaluation of the State's capability to replace or direct certain county personnel; and 2) the actual capability of Rockland County to perform the tasks called for by the exercise.1 On April 25, licensees took the McGuire deposition, on notice, before a notary public. McGuire testified under oath, represented by the County's counsel herein, Eric Ole Thorsen. Amanda Potterfield, Esquire, representing UCS/NYPIRG and Zipporah Fleisher, representing West Branch 1 In addition, the Board requested that McGuire return to testify on the status of emergency planning for the schools. (T:ll233.) (Citations to "T: " denote references to the official hearing transcript.) In his deposition (at 95-96), McGuire testified about the response procedures utilized for the schools during the March 9 exercise.

S Conservation Association, were also present and conducted cross-examination. The deposition was concluded that day, and stenographic transcripts were made available by the reporter. When Mr. McGuire failed to appear at the hearings, despite repeated assurances by Mr. Thorsen that he would so appear, as scheduled, licensees moved for a subpoena. That motion was denied. (T:15190.) Alternatively, the licensees moved the McGuire deposition (identified as Exhibit PA-57) and the pre-filed testimony (exhibit 2 to the deposition and hearing Exhibit PA-56) into evidence. That motion was also denied. (Id.) Licensees herein seek reconsideration of the Board's denial of that latter motion.

The Board Overlooked the Applicable Law Licensees respectfully submit that the Board over-looked the applicable law in refusing to admit Exhibits PA-56 and PA-57. Fed. R. Civ. P. 32(a)(2) expressly entitles a party to use the deposition of an adverse party for any pur-pose:

(a) Use of Depositions. At the trial or upon the hearing of a motion or an inter-locutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the wit-ness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provi-sions:

(2) The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent, or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a public or private corpo-ration, partnership or association or governmental agency which is a party may be used by an adverse party for any pur-pose.

This, of course, is the proper standard in Commis-sion proceedings. As the Board noted in Boston Edison Co.

(Pilgrim Nuclear Generating Station, Unit 2), 1 NRC 579, 581

_ (1975):

The Commission's regulations are based upon and drawn generally from the Federal Rules of Civil Procedure governing disco-very, Rules 26 through 33, and, in the main, employ language identical with, or similar to the language of the Federal Rules upon which the process is based.

Accordingly, guidance may be had from the legal authorities and court decisions construing the Federal Rules on disco-very.

As Exhibit PA-57 makes clear, Mr. McGuire was designated by a governmental agency (Rockland County's Office of Emergency Services) to testify and is, in fact, an offi-cial of Rockland County. There is also no doubt that Rock-land County is a party adverse to licensees. Accordingly, licensees were entitled to place the McGuire deposition in evidence, and the Board overlooked the applicable law in rejecting our offer of proof.

The McGuire Deposition Is Highly Material The McGuire deposition could not be more material .

to the issues of this proceeding. The current emergency res-ponse capabilities of Rockland County are one of the two major emergency planning issues now facing the Board and the Commission. The deposition is highly probative on matters regarding Rockland County's actual capabilities, the demon-stration at the exercise of the State compensating plan, and the credibility of FEMA's assessment.

A. Rockland's Actual Emergency Response Capabilities McGuire concluded in his pre-filed testimony that

" County of Rockland personnel could perform the operations that were required in this exercise." (Ex. PA-56 at 3.) In his deposition, he elaborated on the basis for that conclu-sion:

O. Would you tell us, please, what the basis it for your conclusion on page three of your testimony the County of Rockland personnel could perform the operations that were required in the exercise?

A. Well, you know, the scenario called for response by County personnel to set up an EOC, operate an EOC, take information over the REX line, or the radiological emergency communicating sys-tem, and to be able to assess that infor-mation as to whether or not, you know, what would be recommended, inasmuch as what our County would actually do as in .

relation to that information that was being put to us.

I think with, and it's my opinion, that with the training of the Health Department, at this point, except for some communication equipment which is still lacking on their part, that they could have done the field assessment with two teams which was required by the scenario.

Inasmuch as going outside of our own County personnel, and that's what I'm referring to, there is County personnel, not the volunteers, not the police agen-cies that are in the County, you know, I'm limiting it to that specific rela-tion, you know, as to Cotinty personnel, not to staff that belongs to volunteer workers or staff that belongs to the Red Cross or anybody else, and that's why I base that opinion that our County person-nel do our assessment, our County per-sonnel do the radiological monitoring in the field, and, of course, our County personnel staff EOC and control opera-tions, and, of course, with our Chair-man's office and our public information, I feel that those particular things could

-have handled by County personnel. (Ex.

PA-57 at 18-19.)2 McGuire further testified that training has been accomplished and is .ontinuing (id. at 19, 92-93), and that he beleived that volunteers would respond in an actual emer-gency (id. at 20). He provided details of a recent practical demonstration of the County's response capabilities during 2 These statements are not only admissible testimony preserved at a depositon, but are in fact admissions by a party opponent.

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the evacuation of hundreds of residents from a chemical fire.

(Id. at 102-09.)

Emergency organizations promptly responded county-wide. (In fact, key officials were notified with paging devices purchased with licensees' funds contributed to the radiological planning effort. (Id. at p. 104.))

Despite concern expressed about the imperceptible nature of the che-mical hazard, all personnel responded. (ld. at 105.) County officials were able to set up a command and communications center at the scene. (Id. at 108.) The nearby population was alerted, and shelters for evacuees were established on an

, ad hoc basis. (Id. at 105-106.) McGuire testified that the evacuation was a success. (Id.)

l B. Criticism of FEMA McGuire further testified that he did not believe FEMA was sufficiently aware of Rockland County's actual emer-gency response capabilities:

O. You said that in your view, FEMA doesn't know at what preparedness level the County is at?

A. I don't think they do know.

O. Is that because they haven't really looked at it, or they just haven't gone beyond the fact that there's no written approved plan?

A. I think that's what they're basing it on, there's no written approved plan.

O. So is it your opinion then that FEMA has not gone beyond the absence of a plan to look at the question of what would the quality of Rockland County's response be, if there were an accident tomorrow?

A. In my opinion, they have not looked at that, right. (Id. 118-19.)

Thus, the McGuire deposition is essential to fill a significant . gap in the record lef t by FEMA's incomplete assessment.3 C. The State Compensating Plan The McGuire deposition also reveals that the State compensating plan is much more effective than the Post Exer-cise Assessment suggests. According to McGuire, Rockland County personnel have continued to work with State personnel

"[allmost on an ongoing basis" to plan a response to a radio-logical emergency. (Id. at 26.) The State's compensating plan ir based on the December, 1982 draft of the plan Rock-land is now engaged in finalizing. Hence, both State and Rockland County personnel are well acquainted with the plan that would be implemented in the event of an actual emer- -

gency. (I_d. at 27-29.)

3 McGuire also criticized FEMA's minimal and problematic training activities in the County (id. at 87), and observed that FEMA has maintained a ' laissez-faire" attitude toward Rockland County's withdrawal from the four-county planning process, and non participation in the exercise (id. at 14).

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The Board ruled that an adverse inference can be drawn from McGuire's failure to testify at the hearings. Al-though such an inference supports licensees' position that offsite emergency planning is adequate in Rockland County, it does not provide the complete evidentiary record that the-Commission has requested. The admission of the McGuire depo-sition would not prejudice Rockland County or intervenors, since those parties were represented by counsel at the deposition.

We respectfully urge the Board to reconsider its prior ruling.

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Respectfully submitted, o M, a Brent L. Bran'denb6rg Charles Morgan, Jg.

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 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: May 9, 1983

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

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

)

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 ) May 9, 198' (Indian Point, Unit No. 3) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of LICENSEES' MOTION FOR RECONSIDERATION OF RULING ON ADMISSIBILITY OF DEPOSITION in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, this 9th day of May, 1983.

Docketing and Service Branch Ellyn R. Weiss, Esq.

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 Safety and Licensing New York Public Interest l Board Research Group j 513 Gilmoure Drive 9 Murray Street 1 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 NkC Staff Atomic Safety and Licensing Office of the Executive U.S. Nuclear Regulatory Legal Director Commission U.S. Nuclear Regulatory Washington, D. C . 20555 Commission Washington, D.C. 20555 Mr.' Frederick J. Shon Administrative Judge Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Wash'ington, 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 Marc L. Parris, Esq. Ezra I. Bialik, Esq.

Eric Thorsen, Esq. Steve Leipsig, Esq.

County Attorney Enviromental Protection Bureau County of Rockland New York State Attorney 11 New Hemstead Road General's Office New City, N.Y. 10956 Two World Trade Center New York, N. Y. 10047 Joan Miles Andrew P. O'Rourke Indian Point Coordinator Westchester County Executive New York City Audubon Society 148 Martine Avenue 71 West 23rd Street, Suite 1828 White Plains, N.Y. 10601 New York, N.Y. 10010 I

Greater New York Council on l Energy l

c/o Dean R. Corren, Director New York University 26 Stuyvesant Street New York, N.Y. 10003

s 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 Legislature Westchester County County Office Building White Plains, N. Y. 10601 Renee Schwartz, Esq. Phyllis Rodriguez, Paul Chessin, Esq. Spokesperson Laurens R. Schwartz, Esq. Parents Concerned About Margaret Oppel, Esq. Indian Point Botein, Hays, Sklar & Herzberg P.O. Box 125 200 Park Avenue Croton-on-Hudson, N. Y. 10520

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

a 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 R. 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 Amanda Potterfield, Esq.

Regional Counsel New York Public Interest

Room 1349 Research Group, Inc.

Federal Emergency Management 9 Murray Street, Agency 3rd Floor 26 Federal Plaza New York, N.Y. 10007 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 Management Agency .

500 C Street, Southwest Washington, D.C. 20472

[ Denise Y. Turner

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