ML20049H878

Reply Opposing Ucs/Ny Pirg 820209 Motion for Discovery & Entry Onto Land.Discovery Not Available Against State of Ny, Motion Premature Since Petitions to Intervene Not Ruled on & Significant Logistical Problems Exist.W/Certificate of Svc

ML20049H878
Person / Time
Site:	Indian Point
Issue date:	02/23/1982
From:	Fromer H NEW YORK, STATE OF
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-SP, NUDOCS 8203040400
Download: ML20049H878 (9)

Text

/

p e

CC,C. KE,T EP UNITED STATES OF AMERICA NUCLEAR REGULATORY CO S N y .7,3 BEFORE T11E ATOMIC SAFETY AND. LICENSING BOARD 4

In the Matter of )

)

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

)

POWER AUTIIORITY OF Tile STATE OF NEW YO15)

(Indian Point Unit 3) )

February 23, 1982 tr .

// U.Y

, hdCT:Qn REPLY OF TIIE NEW YORK STATE ENERGY OFFIC p gap n n

'O IN OPPOSITION TO TIIE UCS/NYPIRG MOTION fb32%

DISCOVERY AND TO PERMIT ENTRY UPON LAND g [b. ~,h(.[ #;%i:

CONTROL OF TIIE LICENSEES AND INTERESTED STATES IL l " '

j

', .f INTRODUCTION -

On February 9, 1982, the Union of Concerned Scientists and the New York Public Interest Research Group, on behalf of themselves and seven other organizations who have filed petitions to intervene as parties in this proceeding, moved for an ASLB order requiring the licensees and the counties of Rockland and Westchester and New York State, who have requested intervention as interested States, and requesting Orange and Putnam Counties, who have not petitioned to_ intervene, to permit representatives of the moving parties to be physically present and 3

observe the emergency planning exercise scheduled for the . Indian Point j facilities on March'3, 1982. In particular, the motion requests that

// l I

l two observers be present during the exercise at 15 separate locations l 8203040400 820223 i PDR ADOCK 05000247 ,

g PDR i j

both on and off the Indian Point sites; at all pre-exercise meetings between County, State and/or Federal observers, including any pre-exercise meeting at which such officals will be briefed on their ascignments; at any pre-exercise briefings of the media by County, State and/or Federal officials; and at any post-exercise meetings among County, State and/or Federal agency observers. Additionally, the Board is requested to order the release to the moving parties, in advance of the drill, of prepared scripts for and/or outlines of the excercises which are distributed to participants, and the preservation by Federal agencies' observers of charts, notes and comments on the exercise.

The State Energy Office, on behalf of the State of New York, opposes the granting of the requested order, particularly insofar as it pertains to entry to near-site emergency operation facilities, to off-site exercise locations in Albany and Poughkeepsic which are under the control of the State of New York, to attendance at pre-exercise or post-exercise meetings among County, State and Federal officials concerning the exercise, and to the advance release of prepared scripts and outlines for the exercise, on the grounds that: (1) Discovery is not available against the State of New York, which has petitioned to

, participate as an interested State and not as a party; (2) the motion is premature, since the Board has not yet ruled on the petition to intervene as parties or on the acceptability of any contentions concerning the adequacy of emergency planning for Indian Point; (3) there are significant logistical problems which preclude the presence of any additional people at many of the locations at which observers have requested to be present; and (4) broad distribution of prepared scripts k

l and outlines in advance of the drill could bias the performance of

i I

participants in the drill.

DISCUSSION l

A. Discovery is Not Available Against the State of New York On November 6,1981, the New York State Energy Office, on behalf of l

{ the State of New York and' its interested agencies, petitioned to l

! participate in this proceeding as an interested State pursuant to subsection C of Section 2.715 of the Commission's Rules of Practice, entitled " Participation by a person not a party."

As noted above, the instant motion seeks to obtain entry upon land under the control of the State for inspection and other purposes, pursuant to S2.741 of the Commission's Rules of Practice. That section, however, on its face, provides that such discovery requests are limited to "any other party" (S2.741(a)). Since the State has not petitioned to participate as a party, no discovery against the State is available, and the Board is without- jurisdiction to order the requested relief with respect to the State.

B. The Discovery Request is Premature l

l In view of the fact that the Board has neither ruled on the

, petitions by USC/NYPIRG or the other seven movants to intervene in this .

l proceeding as parties, nor ruled on any of the' proposed contentions, the requested discovery by these organizations is clearl; premature.

l l -Indeed, the general provisions governing discovery (52.740) specifically l . provide that only parties may obtain discovery. Thus, until the Board i

rules on the. petitions to intervene as parties, discovery is unavailable to these organizations as a matter of law.

k-

Moreover, even if the Board should determine that the absence of a l Board determination on party status or on the admissibility of proposed contentions does not, as a matter of law, require the denial of this motion, because of the Board's obligation to respond to the six i

questions posed by the NRC, the Energy Office believes it would still be .

- inappropriate to grant the requested relief.

'While the Commission has requested this Board to inquire into the .

status and degree of conformance with NRC/ FEMA guidelines of State and local emergency planning efforts for the Indian Point facilities, it is ,

unnecessary for this' Board to examine the NRC/ FEMA process for evaluating such State and local efforts, in order to address this question. Indeed, granting the requested relief would improperly focus the ' Board's attention on whether FEMA - and NRC were performing their review functions properly, rather than on whether the emergency plan was adequate and in. compliance with law.

Under the normal emergency plan exercise review process, the adequacy of emergency planning activities and the determination of

- compliance with emergency planning requirements are determined by FEMA and the'NRC. These federal agencies are required to review and report

. on the performances ' of the State and local governments, and the .

utilities, respectively. Only after-these reviews have.been completed and reports issued, might it be: appropriate for this Board to consider the results of the emergency planning exercise.

t

-N-

C. Logistical Problens Preclude the Presence of Observers at

-State Facilities During the Exercise certain of the specific off-site locations at which the movants request to have observers present, particulary the emergency operations centers in Albany and Poughkeepsie, have serious space limitations which must preclude the granting of the motion. Experience gained from the emergency plan exercises recently held in connection with the Nine Mile

~

Point and Ginna nuclear power plants has demonstrated that there is barely sufficient space available for all the necessary federal, State, local and utility representatives who are required to be present at such centers. This problem would be particularly acute if the requested relief were granted since the " observers" will be totally unfamiliar with the physical layout of these facilities and with the personnel at) these locations. Thus, they will require constant supervision by still additional personnel to assure that ' they do not interfere with drill activities.

D. Public Distribution of Prepared Scripts and Outlines in Advance of the Exercise could Bias the Performance of Participants in the Exercise The Energy Office strongly opposes the public distribution in advance of the exercise of scripts or scenarios of the planned exercise.

This information must be tightly . controlled to provide a fair and .

accurate assessment of the response by participants in the exercise to an unplanned and unknown event. Broad distribution of this information in advance of the exercise could bias the performance of participants who gain advance knowledge. of the details of the planned exercise.

a

=

CONCLUSION i- .:For the reasons set forth above, the New York State Energy Office requests that USC/NYPIRG's motion for discovery be denied.

i

l. Respectfully submitted, z'A ~.5 Howard A. Fromer Assistant Counsel New York State Energy Office ,

J' Dated at Albany, New York '

l this 23th day of February, 1982 C

.j J

l T

f 4

4 l- , .

1 sf i

t i

s l

4

+

i e

7/

i-

• p p.

zw.

, #)

. 1, UNT"'ED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

• '4 1 In the Matter of )'

' )

CONSOLIDATFD EDISON COMPANY ) Docket Nos. 50-247-SP OF NEW YCitK (Indian Point, Unit 2) ) 50-286-SP

)

POWER AUTHORITY OF THE STATE OF )

T' NEW YORK (Indian Point, Unit 3) )

CERTIFICATE OF SERVICE I hereby certify that copies of REPLY OF THE NEW YORK STATE ENERGY OFFICE, IN OPPOSITION TO THE USC/NYPIRG MOTION FOR DISCOVERY AND TO PERMIT ENTRY UPON LAND IN CONTROL OF THE LICENSEES AND INTERESTED STATES in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, this 23rd day of February, 1982.

4 Louis J. Carter, Esq., Chairman Paul F. Colarulli, Esq.

Administrative Judge Joseph J. Levin, Jr. , Esq.

Atomic Safety and Licensing Board Pamela S. Horowitz, Esq.

U.S. Nuclear Regulatory Commission Charles Morgan, Jr., Esq.

Washington, D. C. 20555 Morgan Associated, Chartered 1899 L Street, N.W.

Dr. Oscar H. Paris Washington, D. C. 20036

, . Administrative Judge Atomic Safety and Licensing Board Charles M. Pratt, Esq.

U

'.S. Nuclear Regulatory Commission Thomas R. Frey, Esq.

Washington, D. C. 20555 Power Authority of the State

• 1 of New York Mr. Frederick J. Shon 10 Columbus Circle Administrative Judge New York, New York 10019 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Ellyn R. Weiss, Esq.

Washington, D. C. 20555 William S. Jordan, III, Esq.

. Harmon & Weiss

, Brent L. Brandenburg, Esq. 1725 I Street, N.W.,. Suite 505-Assistant General Counsel Washington, D. C. 20006 Consolidated Edison Co. of

/- New York Inc. Joan Holt, Project Director 4 Irving Place Indian Point Project New York, New York 10003 New York Public Interest Research Group

" Mayor George V. Begany 5 Beekman Street Village of Buchanan New York, New York 10038 236 Tate Avenue Buchanan, New York 10511 j;a, l'

r

• 1 John Gilroy, Westchester Coordinator Janice Moore, Esq.

Indian Point Project Staff Counsel New York Public Interest U.S. Nuclear Regulatory Research Group Commission 240 Central Avenue Washington, D. C. 20555 White Plains, NY 10606 Marc 7,. Parris, Esq.

Jeffrey M. Blum, Esq. County Attorney New York University Law School County of Rockland 423 Vanderbuilt Hall 111 New Hempstead Road 40 Washington Square South New City, New York 10956 New York, New York 10012 Geoffrey Cobb Ryan Charles J. Maikish, Esq. Conservation Committee Litigation Division Chairman, Director The Port Authority of New York City Audubon Society

'New York and New Jersey 71 West 23rd Street, Suite 1828 One World Trade Center New York, New York 10010 New York, New York 10048 Greater New York Council on Ezra I Bialik, Esq. Energy Steve Leipsiz, Esq. c/o Dean R. Corren, Director Environmetn'al Protectin Bureau New York University New York State Attorney 26 Stuyvesant Street General's Office New York, New York 10003 Two World Trade Center New York, New York 10047 Honorable Richard L. Brodsky Member of the County Legislature Alfred B. Del Bello Westchester County Westchester County Executive County Office Building Westchester County White Plains, NY 10601 148 Martine Avenue New York, New York 10601 Pat Posner, Spokesperson Parents Concerned About Andrew S. Roffe, Esq. Indian Point New York State Assembly P.O. Box 125 Albany,New' York 12248 Croton-on-Hudson, NY 10520 Renee Schwartz, Esq. Charles A. Scheiner, Botein, Hays, Sklar & Herzberg Co-Chairperson Attorneys for Metropolitan Westchester People's Action Trancportation Authority Coalition, Inc.

200 Park Avenue P.O. Box 488

+- New York, New York 10166 White Plains, NY 10602 Honorable Ruth Messinger '

Lorna Salzman Member of the Council of the Mid-Atlantic Representative City of New York Friends of the Earth, Inc.

District #4 208 West 13th Street City Hall New York, New York 10011 New York, New York 10007 e

O

e Alan Latnan, Esq.

44 Sunset Drive Croton-on-Iludson, NY 10520 Zipporah S. Fleisher West Branch Conservation Association 443 Buena Vista Road New City, New York 10956 Judith Kessler, Coordinator Rockland Citizens for Safe Energy 300 New IIempstead Road New City, New York 10,956 David 11. Pikus, Esq.

Richard F. Czaja, Esq.

330 Madison Avenue New York, New York 10017 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Ildward A. Frome'r Assistant Counsel

, New York State Energy Office k