ML20024C376

Response Opposing Pirg of New York Motion for Reconsideration of Commission 830610 Order.Motion Untimely, Identifies No Matters of Fact or Law & Improperly Raises New Issues.Certificate of Svc Encl

ML20024C376
Person / Time
Site:	Indian Point
Issue date:	07/07/1983
From:	Morgan C MORGAN ASSOCIATES, POWER AUTHORITY OF THE STATE OF NEW YORK (NEW YORK
To:	NRC COMMISSION (OCM)
References
ISSUANCES-SP, NUDOCS 8307120565
Download: ML20024C376 (10)

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UNITED STATES OF AMERICA (11 NUCLEAR REGULATORY COMMISSION ,,

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BEFORE THE COMMISSIONERS:  ;

P' m .. ,SS3 > //f Nunzio J. Palladino, Chairman

<\;[sN ldQIQ Victor Gilinsky @

Thomas M. Roberts ' / hu g ,.

James K. Asselstine In-the Matter of )

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CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. ) Docket Nos.

(Indian Point, Unit No. 2) ) 50-247 SP

) 50-286 SP POWER AUTHORITY OF THE STATE OF NEW YORK )

(Indian Point, Unit No, 3) ) July 7, 1983

)

______________________________________________ )

POWER AUTHORITY'S RESPONSE TO NYPIRG MOTION FOR RECONSIDERATION OF JUNE 10, 1983 ORDER ATTORNEYS FILING THIS DOCUMENT:

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

Washington, D.C. 20036 (202) 466-7000 POWER AUTHORITY OF THE STATE OF NEW YORK 10 Columbus Circle New York, N.Y. 10019 (212) 397-6200 SHEA & GOULD l 330 Madison Avenue New York, New York 10017 (212) 370-8000 i

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' B307120565 830707 PDR ADOCK 05000247 PM i O 3>503

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3, PRELIMINARY STATEMENT Power Authority of the State of New York (" Power

' Authority"), licensee of Indian Point 3 Nuclear Power Plant, hereby responds in opposition to the NYPIRG Motion for Immediate Reconsideration of the Commission's June 10, 1983 Order (the " June 10 Order"). Because the motion is untimely, identifies no matters of fact or law which the Commission overlooked, and improperly raises various new matters, it should be denied.

BACKGROUND On May 5, 1983, the Commission issued an order ( the "May 5 Order") subjecting the licensees to enforcement action based on two offsite emergency planning deficiencies cited on April 14, 1983 by the Federal Emergency Management Agency

(" FEMA"). Those deficiencies related solely to (1) lack of written commitments for bus availability in Westchester County; and (2) Rockland County's non-participation in the formal State-sponsored emergency planning process.

In its subcoquent Order, dated May 13, 1983 (the "May 13 Order"), the Commission allowed other parties to the Indian Point Special Proceeding to make comments " germane to this enforcement action." The May 13 Order explicitly

' cautioned that "the Commission does not intend to consider I

comments that are not directly relevant to this enforcement action." May 13 Order at 2.

After entertaining extensive oral and written pre-

.sentations from the licensees, FEMA, governmental units, and numerous parties to the Special Proceeding, the Commission issued its June 10, 1983 Order (the " June 10 Order") finding that the two significant deficiencies cited earlier had been adequately resolved. NYPIRG now belatedly requests that the Cammission reconsider its June 10 Order.

THE NYPIRG MOTION SHOULD BE DENIED A. The NYPIRG Motion is Untimely 10 CFR S2.771 expressly requires that a motion for reconsideration be filed within 10 days of a Commission deci-sion. Pursuant to 10 CFR S2.771, any request for reconsidera-tion was due no later than June 20. NYPIRG's motion for "immediate reconsideration" was filed several days late, on June 23. For this reason alone, the instant motion should be denied.

B. The Commission Did Not Overlook Relevant Matters of Fact or Law It is well-settled'that reconsideration of an order

,is appropriate only where the decisionmaking body has over-looke'd matters or controlling decisions that might reasonably

l have altered the result originally reached. See, e.g., New York Guardian Mortgage Corp. v. Cleland, 473 F. Supp. 409, 420 l

(S.D.N.Y. 1979). The Commission overlooked no material 1 factual or legal matters herein.

The Commission clearly acted within its legal dis-cretion in finding the deficiencies adequately resolved by recent measures. See Rockland County v. NRC, No. 83-4003 (2d Cir., May 27, 1983). It is equally clear that the Commission considered the material facts.

There were but two issues before the Commission on June 10: bus availability in Westchester County and Rockland County's formal non-participation in the planning process.

With respect to Westchester County, the Commission and FEMA were concerned about a lack of written commitments from bus operators. Those have been obtained, driver training has been accelerated, and the licensees have agreed to provide back-up drivers if necessary. In Rockland County, where State per-sonnel proved to be ef fective substitutes for County personnel during the March 9, 1983 exercise, the State compensating plan has been rewritten to clarify the State role, and the licen-sees have identified employees who could substitute for County personnel, if needed.

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The June 10 Order expressly reflects these develop-ments.1 The measures recently undertaken directly address the deficiencies cited earlier by FEMA. Therefore, the Commission

. overlooked no controlling matters.

C. The NYPIRG Motion Raises New Matter A motion for reconsideration is limited to issues before the Commission in its earlier determination. See, e.g., Tennessee Valley Authority (Hartsville Nuclear Plants, Units lA, 2A, IB, and 2B), ALAB-467, 7 NRC 459 (1978), Kansas Gas & Electric Co. (Wolf Creek Generating Station, Unit No.

1), A LAB-4 7 7, 7 NRC 766 (1978). Both NYPIRG and UCS now raise matters on a " motion for reconsideration" which were not before the Commission earlier.

One example is the reference to a labor dispute involving certain employees of the Consolidated Edison Co. of New York, Inc. (" Con Edison"), licensee of Indian Point Station, Unit No. 2. Such an issue is an entirely new matter 1 Union of Concerned Scientists' ("UCS") June 23, 1983 response in support of NYPIRG's motion (at p. 2) speculates that the June 10 Order was " written without benefit of review of the FEMA report on the status of planning and preparedness which was delivered to the Commission the day

, before the vote." This argument is belied on the face of the June 10 Order, which states that the Commission gave

" careful consideration . . . to the most recent information which we have received from the Federal Emergency Management Agency." June 10 Order at 2.

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m beyond the scope of the May 5 and June 10 Orders, upon which licensees have not had an opportunity to comment. 2

,s A second example is the reference by NYPIRG and UCS to certain emergency planning items other than bus commitments in Westchester and the State compensating plan for Rockland.

Those matters are beyond the scope of the May 5 and June 10

, orders and, in any event, were not cited as significant by

); FEMA. The May 13 order placed UCS and NYPIRG on notice that such matters would not be considered.

For all of the foregoing reasons, the NYPIRG Motion for Immediate Reconsideration should be denied.

2 Regardless, Power Authority employees committed to emergency planning are of course unaffected by the Con Edison dispute, and Con Edison has advised us that its employees committed to emergency planning are not involved in the dispute.

Respectfully submitted, o &~ 1, Charles Morgah, Jr g (

Paul F. Colarulli Joseph J. Levin, Jr.

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

Washington, D.C. 20036 (202) 466-7000 Stephen L. Baum General Counsel Charles M. Pratt Assistant General Counsel POWER AUTHORITY OF THE STATE OF NEW YORK Licensee of Indian Point Unit 3 10 Columbus Circle New York, New York 10019 Bernard D. Fischman Michael Curley Richard F. Czaja David H. Pikus SHEA & GOULD 330 Madison Avenue New York, New York 10017 Dated: July 7, 1983

n 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

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In the Matter of ) Docket Nos.

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

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POWER AUTHORITY OF THE STATE OF NEW YORK ) July 7, 1983 (Indian Point, Unit No. 3) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of the POWER AUTHORITY'S RESPONSE TO NYPIRG MOTION FOR RECONSIDERATION in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, this 7th day of July, 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. 205S5 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 Board Research Group 513 Gilmoure Drive 9 Murray Street Silver Spring , Maryland 20901 New York, N.Y. 10007

A Dr. Oscar H. Paris Janice Moore, Esq.

Administrative Judge Counsel for NRC 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 Brent L. Brandenburg, Esq.

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

Board of New York, Inc; U.S. Nuclear Regulatory 4 Irving Place Commission New York, N.Y. 10003 Washington, D.C. 20555 Jeffrey M. Blum, Esq. Charles J. Maikish, Esq.

New York University Law Litigation Division School The Port Authority of 423 Vanderbilt Hall New York and New Jersey 40 Washington Square South One World Trade Center New York, N.Y. 10012 New York, N.Y. 10048 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 Greater New York Council on Energy c/o Dean R. Corren, Director New York University

'26 Stuyvesant Street New York, N.Y. 10003 l

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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 l

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l 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 l  %  ?

David H. Pik'Us l 1

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