ML20040H589
| ML20040H589 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 02/11/1982 |
| 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 8202180415 | |
| Download: ML20040H589 (41) | |
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'82 FEB 17 P1 :57 UNITED STATES OF AMERICAT: 12 . 4
- f NUCLEARREGULATORYCOMMISSIONi[jg p b
~A'Q:pN 'T ATOMIC SAFETY AND LICENSING BOARD Qg O '
Before Administrative Judges: -((. %.yudlC pr f8 Louis J. Carter, Chairman b g/4 70 Frederick J. Shon A &
Dr. Oscar H. Paris %g -
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__ ____ __ _____ _______ _______ ______ ____ ___ __ D O C KET K E'~"' pghh UI0 EL1
) FROD.LUIP' gg ,gg 4
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In the Matter of ) Docket Nos.
)
CONSOLIDATED EDISON COMPANY OF NEW YORK, ) 50-286 SP INC. (Indian Point, Unit No. 2) , )
POWER AUTHORITY OF THE STATE OF NEW YORK ) February 11, 1982 (Indian Point, Unit No. 3) )
)
AUTHORITY'S REPLY TO RESPONSES TO OBJECTIONS TO CONTENTIONS OF POTENTIAL INTERVENORS l
l ATTORNEY FILING THIS DOCUMENT:
Charles Morgan, Jr.
MORGAN ASSOCIATES, CHARTERED sig (202) 466-7000
.'C bO36 9 503
/ /
8202180415 820211 PDR ADOCK 05000 G
Table of Contents Preliminary Statement.......................... 1 Reply to UCS-NYPIRG Response................... 1 UCS-NYPIRG Proposal.......................... 4 Contention I(A).............................. 4 Contention I(B)(1)........................... 7 Contention I(B)(2)........................... 8 Contention I(B)(3)........................... 9 Contention I(B)(4)........................... 9 Contention I(B)(5)........................... 10 Contention I(B)(6)........................... 11 Contention I(B)(7)........................... 12 Contention II(A)............................. 13 Contention II(B)............................. 14 Contention II(C)............................. 15 Contention III(A)............................ 16 Contention III(B)............................ 16 Contention III(C)............................ 18 Contention III(D)............................ 18 Contention IV(A).......................;..... 18 Contention IV(B)............................. 19 Reply to WESPAC Response...................... 19-22 Reply to Response of Parents.................. 22 Contention I................................. 22 Contention II................................ 23 Contention III............................... 24 Contention IV................................ 26 Reply to FOE Response.......................... 26-27 Reply to WBCA Responses........................ 27-33 Reply to GNYCE Response....................... 33-34 l
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Preliminary Statement Power Authority of the State of New York (" Authority"),
licensee of Indian Point 3 Nuclear Power Plant, hereby replies, pursuant to this Atomic Safety and Licensing Board's (" Board's")
Order of January 26, 1982, to the responses to its objections to the contentions of potential intervenors (" Authority Objections").*
Reply to UCS - NYPIRG Response UCS-NYPIRG has recognized the validity of the Authority's objections in a number of instances (see discussion of UCS-NYPIRG Responses to objections of the following intervenors are discussed herein: Union of Concerned Scientists ("UCS"),
New York Public Interest Research Group, Inc. ("NYPIRG"),
Westchester People's Action Coalition ("WESPAC"), West Branch Conservation Association ("WBCA"), Friends of the Earth
("FOF"), Greater New York Council on Energy ("GNYCE"), and Parents Concerned About Indian Point (" Parents"). UCS and NYPIRG have submitted a joint response and are referred to collectively as "UCS-NYPIRG."
The Authority has not received any response to its objections to the contentions of Rockland Citizens for Safe Energy
("RCSE") or the New York City Audubon Society ("Audubon").
The Authority's objections to RCSE's and Audubon's conten-tions should therefore be deemed to be admitted (see 10 C.F.R.
SS 2.705, 2.707), and RCSE and Audubon should not be per-mitted to intervene herein on the ground (in addition to those grounds previously' asserted by the Authority) that both have failed to assert at least one valid contention (10 C.F.R. S 2.714).
The Authority has adhered to the Board's direction and has limited its reply to "new matters" raised in the potential intervenors ' answers. This restraint, however, should not be construed to be a withdrawal of the Authority's originally stated position.
Contentions I(A), I(B)(1), I(B)(6), I(B)(7), III(C), III(D),
IV(B), below). However, UCS-NYPIRG's belated attempt to remedy a number of its manifestly defective contentions must be rejected for the reasons set forth below. As to those contentions which UCS-NYPIRG has not sought to amend, UCS-NYPIRG has not met the Authority objections, and those contentions should be not allowed by the Board.
UCS-NYPIRG's claim that "[t]he most that can be required . . . is a demonstration that any accident scenario addressed has a probability greater than zero," (UCS-NYPIRG Response at 4), is patently unreasonable. Even as UCS-NYPIRG acknowledges, " contentions are admissible if they are likely to bear on the existence of a substantial risk to the public health and safety." (UCS-NYPIRG Response at 6 (emphasis added).) Any accident scenario that can be imagined has, in theory, a probability greater than zero. In fact, this requires no " demonstration," only common sense. However, l the Commission has directed that the consideration of risk i
at Indian Point include an analysis of both the probability and consequences of an accident. (September 18 Order at 3
- n. S.) Mere reference to a probability " greater than zero"
- is insufficient.*
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- Indeed, UCS-NYPIRG's reliance on a standard of " probability greater than zero" completely ignores a long line of cases holding that every conceivable radiological risk need not be
( (Footnote continued)
{
1 r
i _
UCS-NYPIRG offers a broadside against all " probability estimates," citing them as " methodologically flawed," yet, at the same time cites to WASH-1400 in a vain attempt to bolster its contentions. UCS-NYPIRG's underlying purpose is clear:
it seeks both to avoid its obligation to present the probability of accidents the consequences of which it seeks to explore and to deny this Board the opportunity to assess the merits of any probabilistic safety analysis. Thus, UCS-NYPIRG seeks to have its cake and eat it, too.
To expedite this proceeding, the Board's first order of business must be a consideration of the risk of the reactors, a consideration which includes probabilities. To reverse the logical order of presentation by admitting into discussion any
- accident scenario with a probability " greater than zero" would be an undue waste of the time and the resources of the Board and licensees.
(Footnote continued) mitigated. See, e.g., Citizens for Safe Power, Inc. v.
NRC, 524 F.2d 1291, 1297 (D.C. Cir. 1975) ("[a]bsolute or perfect assurances are not required by [the Atomic Energy Act), and neither present technology nor public policy admit of such a standard"); In re Honicker Petition, N.R.C. _, 46 Fed. Reg. 39,573, 39,580 (1981) (footnote omitted) ("it is reasonable to conclude that such a standard, as distinguished for example from ' absolute' protection, left room for some degree of health impact on the public commensurate with the benefits of having a l nuclear power program .... A country that builds highways, that licenses airplanes, that regulates coal mines, has clearly not established 'zero risk' or 'zero deaths' as a legal or moral absolute").
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UCS-NYPIRG's Proposal that Accident Consequences and Emergency Planning Should Be the First Order of Business Should Be Rejected In its response, UCS-NYPIRG proposes that emergency planning and accident consequences be " addressed separately from and prior to consideration of accident probabilities," (UCS-NYPIRG Response, pp. 7-8). Such a proposal is directly contrary to the Commission's orders governing this proceeding, parti-cularly note 5 to Issue 1. (See Authority objections at pp. 4-5.)
The UCS-NYPIRG proposal concerns the schedule of presentation of testimony herein (UCS-NYPIRG Response p. 8).
The Authority submits that it is premature to discuss the scheduling of specific areas of substantive testimony herein, until the resolution of such presently pending matters as which parties will be permitted to intervene and which contentions will be admitted, and presentation of testimony on the Authority's motion to exclude fear as an issue in this proceeding.
. Response to Objections to Contention I(A)
The Authority objects to Contention I(A) on the grounds that:
(1) the Contention's assertion that emergency planning is " inadequate" is beyond the scope of Commission Issue 3; (2) the Contention fails to satisfy the parti-cularity requirement of 10 CFR S 2.714(b); and
(3) UCS-NYPIRG has failed to set forth adequate factual bases to support the Contention.
(Authority Objections at pp. 21-24).
UCS-NYPIRG responds to Objection (1) by asserting that ,
its bald assertion of " inadequacy" is the equivalent of the limited scope of Commission Issue 3 ("the current status and degree of conformance with NRC/ FEMA guidelines of state and local emergency planning") (UCS-NYPIRG Response, p. 17). The two concepts are not equivalent. " Inadequacy" is a subjective, unbounded concept, while "the current status and degree of conformance with NRC/ FEMA guidelines of state and local emer-gency planning" is an objective standard, as to which a properly limited inquiry can be made. If the Commission had intended the Board to conduct an inquiry into UCS-NYPIRG's (or anyone's) notion of " adequate" emergency planning, it would have so stated.
It did not, and the contention should therefore be rejected.
UCS-NYPIRG concedes the validity of the Authority's objection that the contention is not sufficiently particularized (UCS-NYPIRG Response, pp. 17-18). However, UCS-NYPIRG's proposed remedy for this deficiency - that the bases be considered part of the contention without limiting "the scope of the contention to the extent that other relevant points are presente6 in testi-mony" (id.) - must be rejected:
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First, even were the bases considered as part of the contention, the contention would still be inadequate for the reasons set forth in Authority Objections (1) and (3).
Second, UCS-NYPIRG's caveat to its proposed amendment (that the amendment will not limit its proof) renders the proposed amended contention meaningless on its face. It is the '
)
precise purpose of the contentions requirement to "fram[e] t b.e issues which will be the subject of subsequent discovery and proof" (authority cited in Authority Objections at pp. 2-3).
UCS-NYPIRG's final argument - that Appendix E to 10 C.F.R. Part 50, Section IV (" Appendix E"), somehow relieves it of its obligation to frame proper contentions (UCS-NYPIRG Response,
- p. 18) - must also be rejected. Appendix E does not purport to modify in any way a proposed intervenor's obligation to supply proper contentions (Authority Objections, pp. 2-7, 22-24). If an otherwise proper contention alleges a failure to comply with the guidelines of Appendix E, the contention must set forth the specifics of such noncompliance. UCS-NYPIRG's vague assertions that various aspects of emergency planning (which in any event do not accurately reflect Appendix E) "have not been demonstrated" l are not proper contentions, and Appendix E does not change this I
i
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result.*
Response to Objections to Contention I(B)(1)
The Authority objects to Contention I(B)(1) on the grounds:
(1) that 10 CFR S 50.47(a) is inapplicable herein; (2) that the issue raised by the Contention purports to relate to is beyond the scope of the January 8 Order; and (3) UCS-NY.?IRG has failed to set forth adequate bases to support the Contention.
(Authority objections 24-26).
UCS-NYPIRG concedes the validity of Authority Object-tion (1) (UCS-NYPIRG Response, p. 35), and purports to correct this deficiency by citing to 10 C.F.R. S 50.47(s)(2)--a nonexistent section of the Code.
UCS-NYPIRG claims that the licensees themselves are uniquely privy to and the best source for all relevant in-formation. Therefore the Board cannot expect intervenors to be more specific about the licensees' failure. . . (Contentions at 19.)
Ironically, these are the same potential intervenors who claim to have the expertise and background to contribute meaningfully to these hearings, and who claim elsewhere that licensees' information is flawed. In any event, the licen-sees canr ot possibly be " uniquely privy to. . .all relevant information," as UCS-NYPIRG so disingenuously contends.
UCS-NYPIRG once again seeks improperly to place a burden of proof on the licensees without even attempting to define the issue.
Assuming UCS-NYPIRG intended to refer to 10 C.F.R.
S 50.54(s)(2), deficiencies in the Contention still exist.
UCS-NYPIRG has not responded in any substantive manner to Auth-ority Objections (2) and (3), and the Contention should not be admitted.
Response to Objections to Contention I(B)(2)
The Authority objects to Contention I(B)(2) on the grounds that:
(1) the Contention fails to meet the special thres-hold established in the January 8 Order for evacuation time estimate issues; and (2) the Contention is not supported by adequate factual bases.
(Authority Objections, pp. 26-28).
UCS-NYPIRG concedes that this Contention is subject to the special threshold established in the January 8 order and apparently concedes that the Contention standing alone does not I
meet this requirement. However, UCS-NYPIRG argues that the l
l Contention together with its bases does meet the requirement (UCS-NYPIRG Response, pp. 42-43). Again, the Authority submits that the Board should reject UCS-NYPIRG's attempt to remedy a patently inadequate contention by reference to bases, when UCS-NYPIRG is manifestly unwilling to accept the procedural conse-l 1
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quences of incorporating the bases in the contention (see auth-ority discussed in Authority's Objections at p. 2). Further, even were the Board to permit the bases to temedy the Contention, the Contention would still be inadequate for the reasons set forth in the Authority's objections at pages 26-28.
Response to Contention I(B)(3)
The Authority objects to Contention I(B)(3) on the ground that its purported supporting bases are inadequate (Authority objections, pp. 28-29). UCS-NYPIRG's response is again a reference to Appendix E (UCS-NYPIRG Response, pp. 47-48).
Again the Authority submits that no exemption from the require-ments for a proper contention exists in Appendix E, and that the Contention is therefore inadmissible.
Response to Contention I(B)(4)
The Authority objects to this Contention on the grounds:
l (1) that the Contention is duplicative of prior Contentions; and i
(2) the issue of thyroid prophylaxis is beyond the scope of this proceeding.
(Authority Objections, pp. 29-30).
The Authority submits that to the extent that the Con-tention deals with issues other than thyroid prophylaxis (which is referred to only in the bases) it is duplicative of prior con-tentions. With regard to thyroid prophylaxis, the Authority has stated its position that the State of New York has determined not to approve potassium iodide for radiological emergency use, and that such use is therefore outside of the Authority's control.
Having made its relation to such use clear, however, the Authority would have no objection to admission of a properly framed conten-tion (which the instant Contention is not), should the Board wish to consider evidence on thyroid prophylaxis.
Response to Contention I(B)(5)
The Authority objects to this Contention on the grounds that the Contention:
(1) fails to specify the accidents at issue, and, thus, is so vague as to make a response impos-sible; (2) raises an issue generic in nature which is not capable of resolution in this proceeding;
! (3) addresses the consequences of accidents without
~
discussing the probability of such accidents; and (4) duplicates other contentions.
(Authority Objections, pp. 12-13).
l Conceding the infirmity of their original Conten-tion, UCS-NYPIRG has extensively rewritten it. The revised Contention I(B)(5), however, is equally unacceptable.
The Contention, in fact, is duplicative of other Contentions. It addresses only two issues: consequences of an accident and evacuation time estimates. UCS-NYPIRG already addresses the consequences issue in Contention IV(A); the evacuation time issue is covered in Contention I(B)(2).*
Moreover, UCS-NYPIRG again ignores the Commission's Orders by addressing the issue of consequences without con-sideration of probability. (See pp. 2-3, supra.)
Finally, the revised Contention remains as vague as its predecessor, failing even to specify the accidents at issue. For the reasons set forth in the Authority's objec-tions (pp. 12-13), the Contention must be rejected.
Response to Contention I(B)(6) l The Authority objects to this Contention on the ground
, that it is beyond the scope of the January 8 and September 18
- Accordingly, we respectfully refer the Board to our objections to those contentions (see Authority's Objections at pp. 59-60 and 26-28, respectively). We further point out that Commission Issue 3 asks only "what the minimum number of hours warning for an effective evacuation of a 10-mile quadrant at Indian Point would be." (January 8 Order at 10. ) In this context, the Commission is plainly interested in evacuation times, not con-sequences. Thus, Contention I(B)(5) obviously falls outside the scope of the Commission's Issues.
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Orders (Authority objections, pp. 30-31). UCS-NYPIRG concedes that the Centention attacks the commission's regulations, but argues that the Contention is nevertheless proper (UCS-NYPIRG response, p. 58). As stated in the Authority's Objections (pp. 5-6), the Authority objects to all contentions which challenge the Commission's regulations. However, even assuming that contentions which challenge the Commission's regulations, as long as the contentions fall within the scope of one of the seven Issues, are permitted, this Contention - which fundamentally states that no adequate level of emergency planning can exist -
is not within the seven Issues.
Response to Contention I(B)(7)
The Authority objected to this Contention on the grounds that the "NRC's attitude" and the " promotion of an awareness" are not issues herein (Authority Objections, pp. 31-32). UCS-NYPIRG recognizes the validity of the objection, but its purported amendment of the Contention fails to remedy its defects (UCS-
. NYPIRG response pp. 61-63). UCS-NYPIRG has merely substituted an allegation that the NRC, the licensees, their contractors, and local and State officials "have failed to conduct meaningful emergency planning" -- an issue equally beyond the scope of this proceeding. " Promotion of awareness" remains in the Contention, and equally remains beyond the scope of the issues in this pro-ceeding.
Response to Contention II(A)
The Authority objects to this Contention because it fails to:
(1) properly consider the risk of the accident referenced; (2) sufficiently specify what consequences are at issue; or (3) make any allegation that applicable NRC/ FEMA guidelines for emergency planning beyond the 10 mile EPZ are not met. Such failures make a response to this Contention impossible.
(Authority Objections, pp. 32-33).
UCS-NYPIRG's assertion that " greater than zero" probability is sufficient for a proper contention is clearly inadequate. (See pp. 2-3, supra.)
UCS-NYPIRG claims that consequences from serious i
radiological accidents which may be suffered by the popula-tion in the plume exposure pathway beyond the current 10-mile EPZ include " acute or chronic psychological health impacts."
(UCS-NYPIRG Response at p. 67.) The Authority reasserts its objection to the inclusion of the issue of psychological stress as outside the scope of this proceeding and inconsistent with the Commission's statutory mandate. (See Power Authority's Memorandum of Law in Support of Motion to Exclude Fear as an l
i Issue in this Proceeding at pp. 8-12.) However, even if the issue of psychological stress could be considered, potential intervenors are equitably barred from raising the issue because of their role in exacerbating or creating fear in the community. (Id. at pp. 3-8; Power Authority's Motion for Leave to File the Following Reply to Potential Intervenors' Responses to Power Authority's Motion to Exclude Fear as an Issue in this Proceeding at pp. 5-8.)
Finally, UCS-NYPIRG broadly criticizes the in-adequacy of planning beyond the 10-mile emergency planning zone, but still does not cite a single specific deficiency.
(See Authority objections at p. 33.) To the extent that UCS-NYPIRG may obliquely be challenging the Commission's emergency planning regulations, the Contention must fall.
(See Authority's Objections at pp. 5-6.)
D
_.esponse to Contention II(B)
The Authority objects to this Contention on the grounds:
(1) that the Contention fails to satisfy the par-I ticularity requireme.st of 10 C.F.R. S 2.714(b);
and (2) that UCS-NYPIP'- ww # ~, led to set forth adequate factual bases in mu[..rt the Contention.
(Authority Objections, pp. 33-34).
Again, (to the extent UCS-NYPIRG's response is dis-cernible), UCS-NYPIRG appears to concede that the objection is proper but that it " remedied by reference to the bases (UCS-NYPIRG Response, p. 70). Again (see discussion of Contentions I(A), I(B)(2) above), the Authority submits that defects in a contention cannot be remedied by reference to-bases, and even if the bases were formally incorporated into the Contention, the contention would remain objectionable.
Response to Contention II(C)
The Authority objects.to this Contention on the grounds that (1) the Contention is too vague and conclusory to meet the particularity requirement of 10 CFR S 2.714(b); and (2) the bases are equally conclusory.
(Authority Objections, p. 35).
UCS-NYPIRG's response to the objections (UCS-NYPIRG Response, p. 72) is the same as its response to the Authority's Objections to Contention II(B), and the Authority repeats its reply to said response.
virtually conceding that this Contention is vague and inadequately supported, UCS-NYPIRG argues that " Contention II(C) builds on the details of UCS/NYPIRG Contention I(A)." UCS-NYPIRG thereby admits that this contention either duplicates a prior contention or lacks any independent basis. In either event, the Contention must be rejected.
Response to Contention III(A)
The Authority's objections to this Contention are set forth at pp. 16, 20, and 51-52 of its Objections.
UCS-NYPIRG apparently concedes that the Contention is vague and insufficiently particular, but its remedy for these defects is incredibly to delete a portion of the Contention, rather than proposing a proper contention (UCS-NYPIRG Response,
- p. 76). Such an amendment manifestly does not cure the defects in the Contention, and the Contention s!.ould be rejected.
Insofar as the Contention relates to thyroid prophy-laxis (item (a)), the Authority repeats its reply to Contention I(B)(4) above.
UCS-NYPIRG fails to respond to the Authority's Objec-tions to subsections f, g, and h. Accordingly, the objections to those portions should be deemed to be admitted (see 10 C.F.R.
SS 2.705, 2.707) and those subsections should be not allowed.
Response to Contention III(B)
The Authority objects to Contention III(B) on the grounds that (1) the Commission's Orders of January 8 and Septerter 18 preclude any examination of accident conse-quences alone, without an accompanying consideration of the probability of such accident conditions; and (2) the bases for the Contention are either duplicative of other contentions or inadequate (Authority Objections, pp. 53-54).
Again, UCS-NYPIRG acknowledges the validity of the objections, but its amended Contention (UCS-NYPIRG Response,
- p. 82) does not cure the defects in the Contention.
A contention which seeks consideration of "a range j of accident scenarios . . . each accident having a probability l
greater than zero," (UCS-NYPIRG Response at p. 82), lacks sufficient specificity.
l Although UCS-NYPIRG claims that serious health consequences will result from such accidents, bases 2 and 3 cite only unspecified " preliminary studies" in support of this Contention. Mere recitation of such studies provides l
insufficient bases for an admissible contention. Further-more, the Authority contends that the potential intervenors i
should be barred from raising the issue of " psychological 1
health impairments." (See p. 13, supra.)
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4 UCS-NYPIRG's new bases for this Contention also remain inadequate, as they merely consist of conclusory assertions regarding alleged consequences.
Responses to Contentions III(C) and III(D)
UCS-NYPIRG has withdrawn these contentions.
Response to Contention IV(A)
The Authority objects to this Contention because:
(1) Contention IV(A) is outside the scope of Com-mission Issue 6.
(2) Contention IV(A) fails to consider the proba-bilities as well as consequences of such acci-dents.
(Authority Objections, pp. 59-60).
UCS-NYPIRG does not claim that this Contention is within the scope of Issue 6, but rather argues that it is "related" to Commission Issue 1. Even assuming that the Contention could be said to be within the scope of Issue 1, it fatally fails to consider the probabilities as well as the consequences of such accidents. (See discussion at pp. 2-3 above.)
Also, if the Contention is to be considered as relating to Commission Issue 1, it lacks sufficient particularity.
Response to Contention IV(B)
UCS-NYPIRG has withdrawn this Contention.
Reply to Response of WESPAC WESPAC has taken the unsanctioned step of making a preliminary response to the Authority's objections while at the same time asking the Board for an extension of time to prepare more detailed responses. Putting aside the impropriety of the request, the issue now appears to be moot, since the Board had, in fact, extended the deadline for filing responses at UCS-NYPIRG's request,* and that deadline has passed without any further submission from WESPAC. Accordingly, the Authority is treating the so-i.
- The Authority notes that the new deadline requested by WESPAC, February 1, is only three days later than the final extension date settled on by the Board at UCS-NYPIRG's request. The scheduled time of the return of both WESPAC's attorney and its co-chairperson, whose absence constituted the sole basis for WESPAC's odd request, was well within the Board's new deadline.
called " Preliminary Response" as a final response to its objections.
WESPAC's response is general in nature, and fails to defend specific contentions. At the outset, it is obvious that WESPAC understands neither the purpose of contentions, nor the difference between a " contention" and a
" basis." A contention must be specific enough to give the parties notice as to what they must defend against (In re Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), 8 A.E.C. 13, 20-21 (1974)) and cannot stand independently of underlying bases (see 10 C.F.R. S 2.714).
WESPAC apparently does not understand that bases cannot be used to supply essential components lacking in a contention l itself.
i Since WESPAC has chosen not to defend its contentions, the Authority can only address the following general responses made by WESPAC.
Vagueness and particularity:
As noted above, 10 C.F.R. S 2.714 requires conten-tions to be sufficiently detailed to provide notice to the parties of the issues which they must defend. Similarly,
inadequate contentions cannot be rescued by post-discovery supplementation. The contentions establish the limits for discovery, not vice versa.
As stated more fully in the Authority's objections (pp. 35-41), WESPAC's contentions fail to meet these require-ments.
Lack of specific, stated connections with regulations or emergency plan:
Contrary to WESPAC's assumption, there is most definitely a requirement that contentions be directly con-nected to specific regulations and guidelines. The Commission has directed that " contentions raised by the Board in this proceeding contribute materially to answering [its] designated issues" (September 18 Order at 1). Issue 3 expressly focuses on "the current status and degree of conformance with NRC/
FEMA guidelines" (January 8 Order at 10). In order to con-tribute materially to this issue, contentions obviously must relate to these guidelines. WESPAC's offer of its own issue ("how well protected are the extraordinary number of human beings who live in the vicinity of Indian Point?") con-stitutes another attempt by the potential intervenors to rewrite the Commission's Orders.
Challenges to the NRC regulations:
The reason why challenges to the emergency planning regulations are impermissible herein is clearly set forth in the Authority's Objections (pp. 5-6). WESPAC does not refute the Authority's argument, but instead concedes that it wants a freewheeling expedition into all of the Commission's regu-lations. This, of course, is highly improper in a proceed-ing designed to examine a group of narrow issues relating to one specific site.
Reply to Response of Parents Response to Objections to Contention I The Authority objects to Contention I on the grounds that:
(1) the Contention is beyond the scope of the Commission's January 8 and September 18 Orders; I (2) the Contention fails to satisfy l' the particularity requirement of l
10 CFR S 2.714(b); and l
(3) Parents has failed to set forth i
adequate factual bases to support the Contention.
l (Authority Objections, pp. 41-44.)
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Parents continues to misunderstand the requirements for contentions. Contentions must be sufficiently particular to give notice to parties. The bases must directly support the contentions.
Parents' Contention I obviously remains vague, since it has not been amended. As detailed in the Authority's Ob-jections (pp. 42-44), the bases do not relate to the specific Contention, but instead are general conclusions. Even the quote taken out of context from In re Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1) (Docket No. 50-289-SP, December 14, 1981) at 687 relates to general transportation contentions, not any contention dealing spe-cifically with children.
Parents' argument lacks a logical step. Parents does set forth 22 hypothetical situations. It fails, however, to show that these " factual situations" constitute deficiencies that relate to the Contention or even to issues in this pro-ceeding.
The Contention should be rejected.
Response to Objections to Parents' Contention II The Authority objects to Contention II on the grounds that:
(1) the Contention is beyond the scope of the Commission's January 8 and September 18 Orders; (2) the Contention fails to satisfy the particularity requirement of 10 CFR S 2.714(b); and
, (3) Parents has failed to set forth adequate factual bases to support the Contention.
(Authority Objections, pp. 44-46).
The defects in Contention II are generally similar to those in Contention I. In addition, Parents concedes that this Contention is generic in nature, thus issuing a challenge to the entire regulatory scheme. This is a fatal flaw, of course, since it places the Contention beyond the seven narrow issues relating to Indian Point which cir-cumscribe this proceeding.
Response to Objections to Parents' Contention III
- The Authority objects to Contention III on the grounds that:
(1) the Contention is unsupported by adequate factual bases; and
( (2) the Contention raises issues beyond the l
scope of the proceeding.
(Authcrity Objections, pp. 46-47).
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l Parents admits to the very violation of Commission procedures alleged by the Authority, namely that it cannot presently support Contention III. The hearings are circum-scribed by the contentions, not vice versa. Thus, the Con-tention must be sustainable at this stage, or else it must be rejected.
In addition, Parents again challenges the Commission's regulattens b..r insisting that public participation in drills is necessary. This is a generic suggestion already rejected by the Commission, which is therefore clearly impermissible herein.*
- The Commission squarely rejected the concept of public participation in drills and exercises in a recent rule-making decision. In Petition of Critical Mass Energy Project (Docket No. PRM-50-23), 46 Fed. Reg. 11,288, 11,289 (February 6, 1981), the Commission reasoned:
l l The risks associated with exercise l- evacuations of the public argue j against public participation in a mock evacuation. In any event, NRC could not order the public to participate in such an exercise.
Parents' contention constitutes an improper attempt to achieve by adjudication an objective that has already been denied by rulemaking.
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Response to Objections to Parents' Contention IV The Authority objects to this Contention because:
(1) the issue of fear is not properly a part of this proceeding; (2) even if fear were an apparent issue, Parents is barred from raising it; and (3) this Contention is impermissibly vague.
These objections appear at pages 65-67 of the Authority's Objections. Hence, Parents is in error when it states that "PASNY submitted no objection to Parents' Con-tention IV" (Parents' Response at 9).
Since Parents has not responded to these objections, the objections should be deemed to be admitted (see 10 C.F.R.
SS 2.705, 2.707), and the Contention should be not allowed.
Reply to FOE Response The FOE response is entitled " FRIENDS OF THE EARTH RESPONSE TO NRC STAFF RESPONSE TO CONTENTIONS." Virtually all of the dvoument is, in fact, a response only to the Commission staff. FOE does, however, make one response to an Authority objection.
FOE's sole response to the licensees' objections challenges the Commission's order that any contention address the probabilities as well as consequences of an accident.
This issue is extensively addressed in the Authority's Ob-jections at pages 4-5, and again in objecting specifically to the FOE Contentions at pages 15 and 64-65.
FOE's belated attempt to comply with the Commis-sion's Order by referring to accidents with probabilities
" greater than zero" must fail for the reasons set forth at pages 2-3, above.
The Authority's additional objections, to which FOE has not responded, should be deemed to be admitted (see 10 C.F.R. SS 2.705, 2.707), and the Contention should be not allowed.
Reply to WBCA Responses WBCA has filed a document entitled " WEST BRANCH CONSERVATION ASSOCIATION'S REPLY TO OBJECTIONS TO ITS FILED CONTENTIONS," which is actually only part of a larger docu-ment that also includes a response to the Authority's Motion to Exclude Fear and " Contentions ir. Reply to the Seven Questions."
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The Authority has generally objected to WBCA's contentions on the grounds that they are too vague and were improperly filed. WBCA now expressly admits these deficien-cies and pleads only that "WBCA was too brief in its de-scription of its contentions due to a lack of understanding of what was expected" (WBCA Reply at 2). WBCA now asks leave to resubmit its original contentions two months after the deadline has passed. WBCA claims that it lacked access to publicly available materials, yet the other potential intervenors have managed at least to file timely documents, however defective they may be. WBCA's argument certainly does not constitute good cause for an extension of time.
The deadline for contentions cannot possibly be extended without prolonging this proceeding and prejudicing the licensees. From what the Authority can discern from WBCA's December 2, 1981 " contentions" and its " Contentions in Reply to the Seven Questions," all of WBCA's concerns are covered by other prospective intervenors. Hence, WBCA's request for leave to resubmit its contentions should be denied and, having failed to assert at least ond valid contention, WBCA should not be permitted to intervene (10 C.F.R. S 2.714).
Despite WBCA's concession that it has not filed proper contentions and its request for permission to "resub-mit contentions," its statement of position on the Commission's seven Issues includes such terms as " contentions" and " bases."
Although this is a plainly improper manner for submitting contentions and we cannot believe that WBCA seriously intends these to be contentions,* the Authority cannot allow WBCA's statements to go unaddressed.
Question Number 1 From reading WBCA's statement, one would think that the Commission's first question related solely to the capability of roads. In fact, however, Issue 1 relates exclusively to risk assessment.
Issue 1 is thus concerned with environmental risks and mathematical probabilities, not with roadway capacities. Thus, WBCA's statement does not in any way relate to the Commission issue with which it purports to be concerned.
- Indeed, the Contention is not within any of the seven Issues. Since road conditions are raised in the context of We additionally note that WBCA also has defied the Board's December 31, 1981 filing deadline for statements of position on the seven issues. Thus, however WBCA's document may be denominated, it was not timely served and must be disregarded. WBCA has also ignored the Board's Order on Practice and Procedures dated December 21, 1981 by filing different pleadings as part of a single document.
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an emergency evacuation, the Contention could possibly relate only to Issue 4. The relevant portion of that Issue, however, is limited to consideration of improvements in emergency plan-ning that can be expected in the near future. WBCA's implied assertion that massive roadway improvements are needed is ob-viously incompatible with that clear limitation.
Question Number 2 The Authority objects to the new statements set forth by WBCA because
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(1) they fall outside the scope of Issue 2; and (2) they fail to satisfy the particularity require-ments of 10 C.F.R. S 2.714(b) and are so vague that a response is not possible.
WBCA fails to address the " improvements in the level of safety" that resulted from the Director's Order or what
" specific safety measures" should be required as a licensing condition. Rather, WBCA relies upon conclusory statements i .'
unrelated to questions raised in Issue 2. In addition, WBCA's conclusory statements and alleged bases lack sufficient partic-ularity to satisfy the contention requirements and are so vague as to make a response not possible.
Question Number 3 Commission Issue 3 is limited to the current status and degree of conformance with NRC/ FEMA emergency planning guidelines and to evacuation time estimates. WBCA's assertion that "Rockland County cannot be evacuated in any safe time" is conclusory and unresponsive, does not contribute constructively to this proceeding, and constitutes an impermissible challenge to the Commission's regulations. (See Authority Objections at 5-6.)
WBCA's unsupported statements that "[t]here will not be sufficient personnel to attend to the many requirements" and that the " plan shows a dependence on unsure sources" are vague and conclusory, and therefore fail to meet the particularity re-guirement of 10 C.F.R. S 2.714. WBCA's speculation concerning power outages is not connected with conformance to the NRC/ FEMA guidelines. In fact, the issue of emergency power is generic, and governed by Commission regulations not at issue in this pro-ceeding. See, e.g., 10 C.F.R. Part 50, Appendix A.*
- Even if emergency power were, arguendo, a subject for consid-eration herein, WBCA's statement would constitute an impermis-sible challenge to NRC regulations. (See Authority Objections at 5-6.)
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Question Number 4 WBCA's statement merely repeats arguments raised in the earlier position taken under Issue 1. U? therefore respect-fully refer the Board to our discussion relating to that earlier statement, at pages 29-30 above.
Question Number 5 Again, WBCA seems to have misread the Commission's Issues. Issue 5 asks "how do the risks posed by Indian Point Units 1 and 2 compare with the range of risks posed by other nuclear power plants . . .?" (January 8 Order at 10; emphasis added.) WBCA's statement, however, deals not with risks and probabilities, but with emergency planning. And the sole asser-tion, that "the plan is inoperable" plainly fails to satisfy the particularity requirement of 10 C.F.R. S 2.714.
Question Number 6 To the extent that the Authority is aware of the matters underlying the assertions set forth under Question 6, it believes that a number of the assertions are inaccurate.
Question Number 7 Again, WBCA ignores the Commission's express language and the purpose of this proceeding. Issue 7 asks whether "the Governor of the State of New York wish[es] to express an official
position with regard to the long-term operation of the units."
(January 8 Order at 10) . Thus, the Commission clearly wishes to hear from the Governor, not from potential intervenors.
Reply to Response of GNYCE GNYCE concedes that its contentions require "clarifi-cation." However, its response to the objections to its conten-tions is an argument that it should be permitted to rewrite Commission Issues 1 and 6 to issues concerning alternate energy sources and a balancing of the economic costs of an accident against the economic costs of a shutdown. As in the case of all proposals by potential intervenors to rewrite the Commis-sion's Issues, GNYCE's contentions must be rejected.
Response to Contention I The Authority objects to this Contention because:
(1) Contention I fails to present adequate factual bases.
(2) Contention I, as phrased, is not within Com-mission Issue 6.
i (Authority Objections, pp. 62-63).
l GNYCE's response to the Authority's objections is to assert that the Authority is also concerned with alternate l
l energy sources, and is therefore somehow estopped from objecting to this Contention. The short answer to this argument is of course that the concerns of neither GNYCE nor the Authority establish the scope of the Board's inquiry - the Commission's Issues do. Neither do the concerns of GNYCE or the Authority establish the requirement that a contention be supported by adequate factual bases - the Commission's rules do. The Contention should therefore be rejected.
Response to Contention II The Authority objects to this Contention because:
(1) Contention II, as phrased, is entirely without the scope of the Commission's seven issues.
(2) GNYCE fails to present an adequate factual basis.
(Authority Objections, pp. 63-64).
l GNYCE's response to the objections is a restatement
!- of its argument that it should be permitted to rewrite the Commission's Issues to encompass the Contention. The argument l and the Contention'must be rejected.
Respectfully submitted,
==uD Charles Morgan, Jf.)
Paul F. Colarulli Joseph J. Levin, Jr.
MORGAN ASSOCIATES, CHARTERED 1899 L Street, N.W.
Washington, D.C. 20036 (202) 466-7000 Thomas R. Frey 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 Da ted : February 11, 1982
l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD j Before Administrative Judges:
Louis J. Carter, Chairman ;
Frederick J. Shon Dr. Oscar H. Paris
)
In the Matter of ) Docket Nos.
)
CONSOLIDATED EDISON COMPANY OF NEW YORK, ) 50-286 SP INC. (Indian Point, Unit No. 2) )
POWER AUTHORITY OF THE STATE OF NEW YORK ) Fe bruary 11, 1982 (Indian Point, Unit No. 3) )
)
CERTIFICATE OF SERVICE I hereby certify that copies of POWER AUTHORITY'S REPLY TO RESPONSES TO OBJECTIONS TO CONTENTIONS OF POTENTIAL INTERVENORS in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, this lith day of February, 1982.
Docketing and Service Branch Ellyn R. Weis, 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 l
Louis J. Carter, Esq., Chairman Joan Holt, Project Director Administrative Judge ,
Indian Point Project Atomic Safety and Licensing New York Public Interest Board Research Group U.S. Nuclear Regulatory 5 Beekman Street Commission New York, N.Y. 10038 Washington, D.C. 20555
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t Dr. Oscar H. Paris John Gilroy, Westchester Administrative Judge Coordinator Atomic Safety and Licensing Indian Point Project U.S. Nuclear Regulatory New York Public Interest Commission Research Group Washington, D.C. 20555 240 Central Avenue White Plains, New York 10606 Mr. Frederick J. Shon Janice Moore, Esq.
Administrative Judge Counsel for NRC Staff Atomic Safety and Licensing Office of the Executive Board Legal Director U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Brent L. Brandenburg, Esq. Jeffrey M. Blum, Esq.
Assistant General Counsel New York University Law Consolidated Edison Co. School of New York, Inc. 423 Vanderbuilt Hall
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4 Irving Place 40 Washir.gton Square South New Yo rk , N.Y. 10003 New York, N.Y. 10012 Marc L. Parris, Esq. Charles J. Maikish, Esq.
County Attorney Litigation Division County of Rockland The Port Authority of 11 New Hemstead Road New York and New Jersey New City, N.Y. 10956 One World Trade Center New York, N.Y. 10048 Geoffrey Cobb Ryan Ezra I. Bialik, Esq.
Conservation Committee Steve Leipsiz, Esq.
Chairman, Director Enviromental Protection Bureau New York City Audubon Society New York State Attorney 71 West 23rd Street, Suite 1828 General's Gifice New York, N.Y. 10010 Two World Trade Center New York , N.Y. 10047 Greater New York Council on Alfred B. Del Bello Energy Westchester County Executive c/o Dean R. Corren, Westchester County Director 148 Martine Avenue New York University New York, N.Y. 10601 26 Stuyvesant Street New York , N.Y. 10003
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. Pat Posner, Spokespe rson Botein, Hays, Sklar & Herzberg Parents Concerned About Attorneys for Metropolitan Indian Point Transportation Authority P. O. Box 125 200 Park Avenue Croton-on-Hudson, N.Y. 10520 New York, N.Y. 10166
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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 l
City of New York Croton-on-Hudson, N.Y. 10520 District No. 4 City Hall New York, New York 10007 Lorna Salzman Zipporah S. Fleisher Mid-Atlantic Representative West Branch Conservation Friends of the Earth, Inc. Associatio' 208 West 13th Street 443 Buena Vista Road l New York, N.Y. 10011 New City, N.Y. 10956 1
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
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David H.'Pikus l
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