ML20065P093

Joint Response of Intervenors to ASLB 821001 Order.Meaning of Discussion of Probability Should Be Clarified & ASLB Should Immediately Reformulate Contentions on Questions 3 & 4.Certificate of Svc Encl

ML20065P093
Person / Time
Site:	Indian Point
Issue date:	10/19/1982
From:	Weiss E HARMON & WEISS, UNION OF CONCERNED SCIENTISTS
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8210220410
Download: ML20065P093 (12)

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UNITED STATES OF AMERICA DOCKETED 4 NUCLEAR REGULATORY COMMISSION U%RC

'82 MIT 21 AiO53 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

-- - SCCRETARY In the Matter of ) l];hjERVICE

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CONSOLIDATED EDISON COMPANY OF NEW YORK ) Docket Nos. 50-247 (Indian Point Unit 2) ) 50-286

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POWER AUTHORITY OF THE STATE OF NEW YORK)

(Indian Point Unit 3) )

INTERVENORS' RESPONSE TO ASLB MEMORANDUM AND ORDER OF OCTOBER 1, 1982 The Intervenors have conferred regarding the Board's Order of October 1, 1982 and decided to respond jointly herein to three issues raised by that Order.*/ Some of the Intervenors will file their own separate papers on other questions. The three issues are as follows:

1. A request for clarification of the meaning of a " discussion" of probability.

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2. A request that the Board proceed immediately to reformulate the contentions on questions 3 and 4.

3. A proposed schedule for expediting the hearings.

I. Request for Clarification of " Discussion" Requirement Some of the language contained in the section de-scribing the required " discussion" of accident probability raises questions as to whether the " discussion" must be in the form of. testimony, sponsored by all expert witness,_etc.

• /This does not include the Interested States, although.the New York City Council agrees to the proposed schedule pre-sented here.

8210220410 821019 PDR ADOCK 05000247 j O PDR w M.O 3 .

2 In particular, the Order states (Sl.op. at 4) that "[s]ome discussion of that probability must be presented in a party's (or group of parties') direct testimony."

The Intervenors interpret the Commission's Order as using the term " discussion" for the precise puppose of dis-tinguishing this discussion requirement from direct testi-many, in recognition of the fact that Intervenors do not have the resources to pay experts for the production of testimony in this complex and enormously expensive technology. Chairman Palladino, who was in the majority of the 3-2 decision, stated as follows:

I believe that the Commission is not requiring that L each party provide witnesses able to present and support independently its case on probabilities.

(CLis82-25, September 17, 1982 separate views of Chairman Palladino, emphasis in original)

We therefore ask the Board to clarify that the " discus-sion of probability" required of Intervenors need not be

'in the form of expert testimony.

II. Request that Board Immediately Reformulate Contentions on Questions 3 and 4.

The Board did not reformulate the Intervenors' contentions on Commission Questions 3 and 4, accepting Con Ed's argument that to do so would be wasteful effort con--

sidering possible revision in the emergency plans as a result of the 120-day clock. The NRC Staff urged the Board, on 1

the other hand, to proceed immediately to reformulate all

-contentions. In this matter, Intervenors agree with the m-

- 3 Staff and ask the Board not to wait until the end of the 120-day clock to address the contentions on Questions 3 and 4.

Most of the contentions related to Questions 3 and 4 are not dependent in any significant way on the changes now being made to the emergency plans; they do not call into question the adequacy of the plans in areas indenti-fied as deficient by FEMA. We believe that the only con-tentions arguably affected by the 120-day clock are 3.1, 4.4, 4.5 and 4.7. Even as to these contentions, Intervenors submit that while their testimony might require some changen to reflect events during the 120-day clock, the contentions themselves will not change.

The Intervenors are in limbo at this point, unable to go ahead with further preparation on the issues on_which Intervenors have particular competence and interest since the contentions are subject to change in the future. In-tervenors wish to be able to go ahead immediately; too much time has already been lost'due to the Commission's action. We therefore ask the Board to reformulate all

appropriate contentions now.

l III. Proposed Schedule The proposed' schedule is based upon the following i

factors:

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1. At the time the Indian Point hearings were suspended last July, some parties had filed their responses to Interro-gatories on Questions 1, 2 and 5. Other parties were on the verge of providing their answers since the deadlines were imminent. Suspension of the hearings obviated these deadlines. Fairness now requires that new dates be set for the delivery of these outstanding responses.

2. At the time the hearings were suspended, the only discovery on Questions 1, 2 and 5 had been an initial round of Interrogatories. There remained considerable time in the schedule for the taking of depositions pursuant to 10 CFR 2.740a. At least some parties were preparing to depose witnesses for these Questions when the suspension forestalled further discovery. Assuming that the Board believes the testimony on these questions to have-the same importance as that of previously-deposed witnesses _on questions 3 and 4, the Board must allow such discovery-to go forward.

We have proposed an expedited schedule to' achieve this.

3. The Commission's purpose in suggesting that Questions 1, 2 and 5 be heard before-completion of Questions 3 and 4 was not to denigrate the importance of_ emergency planning or to conceal defects from the public. Its-purpose was to aid the. efficient conduct of these proceedings. CLI-82-25, Sept. 17, 1982, S1.op. at S-5. It is-now apparent that there will be considerable time required to complete discovery and prepare testimony on Questions 1, 2 and 5.

5 In addition, Intervenors have now been made subject to a new obligation, i.e. the requirement of preparing a " dis-cussion" of accident probability, which will take sub-stantial time and effort. Clearly, the most efficient way to proceed at this point is to begin taking testimony on the issues which are ready to go forward while conducting discovery and preparing testimony on the other issues. The issues which are ready to go forward immediately are the Interested States' testimony on Commission Questions 3 and 4.

In any event, the order in which questions are to be addressed should be evaluated now in light of the fact that there is virtually no chance of evidentiary hearings re-commencing on any issue before the end of the 120 day clock, on or before December 4, 1982. At that time, the Board should proceed immediately with what is ready to be heard.

4. Some Interested States have expressed concern about

the prospect of an excessively long delay between the pre-filing of their officials' testimony and the calling of those witnesses for cross-examination. This would place an undue burden on the officials by requiring them to retain the details of their observations long after their testimony had been filed. In addition, Interested States face a problem in the form of expected turnover of officials which would be exacerboated by long delays. Even if revision of contentions on Questions 3 and 4 were to take longer than we anticipate, this would not warrant delaying.the Interested States' testimony on these questions since their role in the hearings is neither dependent upon nor limited by contentions.

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5. The Commission is undoubtedly correct that testimony which relates to the emergency planning deficici;1es being addressed by the 120-day process shou 3d be reviewed, and where appropriate revised, in light of changes made during that period. Because the Licensees and the New York State Department of Emergency Preparedness are in charge of making these changes, they should at the earliest possible time come forward with evidence documenting any improvements and/or changes. Two weeks ~a'fter the termination of the 120 day clock is ample' time in which to make such a filing. Indeed, Intervenors believe that this is a generous.

amount of time considering that the whole 120 day period is

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being devoted to precisely this question of evaluating the changes and their effectiveness and that the process is to-be completed at the end of the 120 days.

Once the Licensees and the New York State-Office-of Emergency. Preparedness have filed th'eir-supplementary tes-timony, all other parties should have approximately two weeks to reaffirm, revise or withdraw testimony already submitted and if' necessary, to. submit supplementary testimony in response to-the licensee's and State's positions.

, 6. Since discovery has been completed-on alliaspect's 4.

of Questions 3 and 4 other than on. questions related to i

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. the imposition of the 120-day clock and changes-to the i

l . emergency plans related thereto, hearings can proceed.on

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1 1.,

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these Questions while discovery continues on Questions 1, 2, 5 and 6. This will best facilitate the efficient pro-gress of the hearings.

7. Our proposed schedule provides that Licensees and Staff file direct testimony on Questions 1, 2 and 5 before Intervenors and Interested States. We believe that this will accomodate both the interests of expedition and fairness.

The Commission has established a substantial new burden for Inttervenors to meet with respect to accident probabilities.

We have been required to change the focus of our efforts to respond to this obligation since it is a thereshold burden fo~r participation on other issues. At the same time, the Commission and the Board recognized that Intervenors do not have access to the resources of the. licensees and Staff and therefore provided that our probability discussion may tx3 based on the direct testimony and cross examination of those parties. (Memorandum and Order, October 1, 1982, S1.op. at 4).

Our schedule provides for a brief discovery period on Questions 1, 2 and 5, and fot- filing of Licensee hnd Staff testimony first, essentially trading discovery-time-for time to review and assess the Staff and Licensee-testimony, which-will contain their analyses of accident probabilities-in.a far more comprehensive state than we could hope to have it during discovery.

The schedule would proceed as follows:

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8 11/7/82: Responses due to all outstanding discovery re-quests on Questions 1, 2 and 5.

11/15/82: Board issues reformulation of Contentions For Questions 3 and 4.

11/21/82: Deadline for filing new discovery requests and deposition notices for Questions 1, 2 and 5.

11/29/82: Briefs in Response to Board reformulation of contentions on Questions 3 and 4.

12/4/82: 120-day clock terminates.

12/6/82: Prehearing conference on Questions 3 and 4, if necessary.

12/10/82: Final order on Questions 3 and 4.

12/14/82:

to Hearings commence, Interested States on Questions 12/17/82: 3 and 4.

12/20/82: Discovery closes; Licensee and Staff supplemental filings on emergency planning due.

1/4/83 to Hearings continue (Interested States) 1/7/83:

,l/10/83:

All other parties' supplemental filings as a result of 120-day clock due.

1/17/83: Licensee and Staff Testimony on Question 1, 2 and 5 filed.

1/18/83: Hearings continue (Interested States or first pos-sible time that Intervenors testimony on Questions 3 and 4 could begin.)

Dates to be determined later would be 1) the filing of Intervenor testimony and discussion on Questions 1, 2 and 5 and 2) commencement of heaa-ings on Questions 1, 2 and 5.

Even if the Board decides not to reformulate the con-tentions on Questions 3 and 4 until after the 120-day clock, the schedule for hearing would not be altered substantially

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since the Interested States' testimony, which comes first, does not depend on contentions. The Board could reformulate those contentions on or about December 20, 1982, briefs in response could be filed January 3, 1983 with a prehearing 4

conference, if necessary on January 17, 1983. The re-mainder of the schedule would not change.

Respectfully submitted, E

Ellynq{} Weiss zur llarmon & Weiss 1725 7 Street N.W.

Suite 506 Washington, D.C. 20006 (202) 833-9070 i Counsel for Union of Con-cerned Scientists Dated: October 19, 1982 u

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LINITI:D STATI:S Ol' A!!MI:I CA NUCl.1:AR 1:1:Gtil.AToltY COtill1SS1ON UMront: Tile ATol' llc sal'ETY AND 1.l CI;!4Ml flG !!OAl(D I

In tht' Matter of )

) lloch e t !!O:: .

CONSOI.IDATED EDI SON COMl' ANY Ol' til'H YOttK

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(Indian Point Unit 2) )  !.0-247

' 50-20f>

POWEft AUTilORITY OF Tile STAPE 01' tJEW YOltK )

(Indian Poln t Unit. 3)

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing INTERVENORS' RESPONSE TO ASLB MEMORANDUM AND ORDER OF OCTOBER 1, 1982, have been mailed, postage paid, first class, this 19th day of October, 1982, to the following:

.let l'r ey M . Illum, Mul .

James P. Gleason, Esquire rieu York lini vernit.y I.aw School Atomic Safety and Licensing Board 411 V.inder bi l t llal 1 U.S. Nuclear Regulatory Commission 40 Wanhinig tori Seluaru South Nhshington, D.C. 20555 New York, New York 10012 Dr . Oscar 11. Parin thi . .l iali llo 1 L Atomic Safety and I.icensing llo.ird New Yosh I'uist ic Int.crent Ilusearc United States Nuclear Greinp Regulat ory Commtan. ion  !, Heckman :ltruct Eashing ton , D .C . 2055S New Yo k , New York 100'10 Dack e t ing I. Servica (2) Mr . I'reder ick .l . Shon U.S . Nuclear Regulatory Comminuitui Atomic ::afety and I.icunning Doar Washington, D.C. 2 0555 tinit ed Staten tiucicar Regulatory Commission Washington, D.C. 2 0555 Drent I.. Drandenburg, Esq.

Richard P . Itemshaw John D. O 'Toolo .lanicc Mooro, Muel .

Consolidat ed Edison Comp.iny 01Iico ot t.hu Mxocut. : ve of New York, Inc. I.eg a l Di r ec t.or 1 Irving Place linit ed Stat on tJucicar g, w York , New York 10003 unin t at ory ce,mminnion Wanhington, D.C. 20555

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. . e Char 10:4 il . Na s i k i uh , 1;:sil . Mn. l'a t l'onner , :pokeupt.ruon General Counsel l'.o call n Concerned Abou t The Port Autharity of New York I n t s .us l'o s si t_

and New Jerney l' . O . Ito x 12's one World Trade Center, tit *S Ci o l ini -un -liiseln'Hi , New York 1052

?!e .s ) o r k , N e w York i OO ill t: e el en flew York Coone 1 oil l. net fjy ,

Michael D. Diederich, Jr. e/o lie.ui I: . Co rre:n  ;

Fitgerald, Lynch & Diederich flew Yoek tiniversity  :

24 Central Drive  ;'s. 31 oyve...un t St.ros.t l Stony Point, N.Y. 10980 fle w York, flow Y< > r k 10003 i Nr. i;enfi rey Cobb Hyan 7.j pporah S. Pleisher, Secretary conner vat ion Commi t. Lee Chairmar Wes t 11 ranch Conservation Annociat. ion Dir oet.or, New York Ci ty 443 Duena Vinta Road Audubon Society New Ci t y, New York , 10056 71 hent. 2 t r d S t.r ce t. , satte 182E New Yo k, New York 10010 Charles A. Scheiner, Co -Chai r person west.chester Peopl e 's Act ion :ll anley 11. K l imberg , Eng. .

Coalition, Inc. Gencial Counsel  :

P.O. Box 488 IJew York State Energy Office White Plains, New York 10602 2 Itockefeller State Plaza Albany, tiew York 12223 Nayor Georgo V. Degany Itichard P. Czaja, Esq.

Vallage of Buchanan 1).sv i d 11. P i k us , Enq .

2.56 Tat.e Avenue ihea (, (;ould (PASilY)

Buchanan, New York 10S11 .130 Itadinon Avo.

New York,tiew York 10017 Alat) Latman, Esq. .

Westchester People 's Action Judith Kennlor, coordinator i Coalition, Inc. 1:ockland citizonn for Safe Ene}

44 Sunset Drivo :100 tiew itempatcad Road craton-On-lludson, New York 10520 New City, New York 10956 Andrew 8. Roffe, Esq. Ricliar d I.. Itrodsky New York St ate Assembly Count.y Ott i ce fluilding Albany, Now York 12248 White Plains, New York 10601 Ezra I. Dialik, Esq. Har t: I. Parris, Esq.

Steve Leipzig , Esq. Count.y Attorney Env}ronmental Protection Bureau Eric Ole Thornom; Eug.

Now York Stato Attorney General's County of Itockland  !

Office Li New itempstead Road

'Two World Trade Ccntor New CiIy, New York 10956 New York , New York 1004 7

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M: . Amanda l'otterf icid, Esquirc Renec Schwar t 7. , Esq. g., g, gng 3g4 no toin . llays , Sklar and lieral' erg Village Station 200 Park Avenu" tiew York, New York 10014 New York, New. York 101 M.

Ilonorable Ruth W. Messtnger Mr. Donald I.. Sapir, Esquire 60 1: ant Mount Alry Road Council Member Ci oton-on-lhidnon , N . Y . 10520

.tth District, Manhattan City llatl New York , New York 10007 Richard M. Ilartzman, Esq.

Ms. I,orna Sal man Atomic Safety and Licensing Friends of the 1:arth Board 20e West 13th Street U.S. Nuclear Itogulatory New Yotk, New York 10011 Commission Wanhington, D.C. 20555 Mr. Alfred D. Del Bello Westchester County Executive Westchester county Atomic Safoty and Licensing 148 Martino Avenue Appeal Daard New York , New York 10601 U.S. Nuclear Daard Washington, D.C. 20555 Charles Morgan, Jr .

Morgan Associates, Joan Miles Chartered Indian Point Coordinator 1899 1.. St., N.W. New York City Audbon Society Washing ton , D .C . 2003 6 71 West 23rd Street, Suite 182E New York, NY 10010 Phoda'sR. Prey,Esq. David B. Duboff ,

Charles M. Pratt, Esq. Westchester Peoples' Action Coalition Office of the General Counsel 255 Grove Street Power Authority of the State of New YorkWhite Plains, N.Y. 10601 10 Columbus Circle New York, New York 10019 Craig Kaplan, Esq.

Ruthanne G. Miller, Esq. National Emergency Civil Atomic Safety and Licensing Committee Board Panel 175 Fifth Avenue, Suite 712 U.S. Nuclear Regulatory New York, N.Y. 10010 Commission Washington, D.C. 20555 Donald Davidoff Director, Radiological JONATIIAN D. FEINBERG Emergency NEW YORK STATE PUBLIC SERVICE Preparedness Group COMMISSION Empire State Plaza, Tower TilREE EMPIRE STATE PLAZA nidg, Albany, N.Y. 12223 Room 1750 Albany, New York 12223 V

October 19, 1982

- Ell % R. Weiss