ML20072M486
| ML20072M486 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 07/12/1983 |
| From: | Mark Miller KIRKPATRICK & LOCKHART, SUFFOLK COUNTY, NY |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20072M474 | List: |
| References | |
| ISSUANCES-OL, NUDOCS 8307140448 | |
| Download: ML20072M486 (42) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board
)
In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322 0.L.
) (Emergency Planning)
(Shoreham Nuclear Power Station, )
Unit 1) )
)
SUFFOLK COUNTY'S RESPONSE TO LILCO'S OBJECTIONS TO INTERVENORS' CONSOLIDATED EMERGENCY PLANNING CONTENTIONS AND TO NRC STAFF RESPONSE TO DRAFT EMERGENCY PLANNING CONTENTIONS Suffolk County hereby responds in a summary manner to certain objections and comments of LILCO and the NRC Staff con-cerning Intervenors' Emergency Planning Contentions (hereinaf-ter, " contentions"), as set forth in LILCO's Objections to In-tervenors' " Consolidated Emergency Planning Contentions," dated July 8, 1983 (hereinafter, " Objections"), and in the NRC Staff Response to Draft Emergency Planning Contentions, dated July 7, 1983 (hereinafter, " Staff Response").
By advising the Board and other parties generally of the County's position regarding certain comments of LILCO and the Staff, Suffolk County hopes that the prehearing conference on l July 13 can be expedited. However, because the County received the Objections and Staff Response only a short time prior to the conference, it has been unable to prepare a comprehensive response to all the matters raised by LILCO and the Staff.
8307140448 830712 PDR ADDCK 05000322 0 PM
I Thus, this response does not answer every argument or objection raised by LILCO and the Staff, nor address comprehensively the applicability of particular objections to specific contentions.
Thus, the limited scope of this response does not indicate the County's agreenent with those objections not specifically discussed herein. The County will be prepared to address each specific objection on a contention-by-contention basis at the prehearing conference.1/
- 1. COMMENTS ON THE STYLE AND FORMAT OF THE CONTENTIONS The bulk of the comments by LILCO and the Staff go to the style and format used by the County in drafting its conten-tions.2/ They both suggest that the contentions could have been organized differently (see Objections at 2-3 and Staff Response at 1-2), and LILCO also suggests that the contentions are
" overlong and wordy" (Objections at 2). Specifically, both 1/ The County has attempted to coordinate this response with that of the other intervenors. The contents of this re-sponse has been discussed with, and the County is autho-rized to state that, SOC and the Town of Southampton join in this response.
2/ Since the Staff's Response relates to the Draft Consoli-dated Emergency Planning Contentions, it ignores the format and numbering revisions -- as well as the substan-tive revisions -- to those contentions that are reflected in the Final Contentions. Such revisions render many of the Staff's comments on both form and substance inappo-site.
LILCO and the Staff refer to the appearance of certain issues, such as role conflict and LILCO's lack of credibility, in more than one contention. (See " Consolidation" objections by LILCO;
" redundancy" or " repetitive" objections by Staff). Purportedly to eliminate such " repetition," the Staff and LILCO suggest that the contentions could have been written essentially in re-verse of the way they were. That is, instead of the County drafting contentions framed within particular regulatory re-quirements (e.g., protective actions, communications, command and control), with contention subparts identifying particular reasons or factors contributing to LILCO's non-compliance (e.g., role conflict, lack of authority, lack of credibility),
they suggest that the County could have focused its contentions upon the factors leading to non-compliance (such as a broad role conflict contention) with subparts identifying the particular regulatory requirements not complied with as a result of those factors.
The County chose the former organizational framework and believes it is a logical and reasonable one. First, this
, framework tracks the requirements of 10 CFR Section 50.47(b) i
! and NUREG 0654 -- the major regulatory and guidance materials.
Second, this framework also tracks the organization of the LILCO Plan. The County agrees that there is some " repetition,"
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since certain facts or phenomena have an impact on LILCO's l ability to comply with several emergency planning regulatory requirements. However, since the contentions are designed to deal comprehensively with the LILCO Plan, such " repetition" would be present whether the contentions were drafted as they ,
were, or in the " reverse" format proposed by LILCO and the Staff.
For example, if the contentions were organized as suggested by LILCO and the Staff, a contention stating that
" emergency workers will experience role conflict," would have individual subparts explaining: (a) which workers are referred t to; (b) what duties or functions could not be performed as a result of the role conflict; (c) the effect of the nonperform-ance on the adequacy or implementation of several different as-pects of the LILCO Plan; and (d) the regulatory requirements violated as a result of each item identified in (a), (b) and (c). Then, for a contention stating that "LILCO lacks credi-bility," there would be a similar set of subparts to explain all the contexts in which the lack of credibility arises, how that factor affects LILCO's ability to perform various i functions, how that factor affects the adequacy or imple-mentability of several aspects of the Plan, and the regulatory requirements violated as a result. It is obvious that merely
reversing the order of presentation does nothing to eliminate the repetition. If drafted as suggested by LILCO and the Staff, an appropriate comment on the contentions would be: "It would be easier if all the problems relating to a particular LILCO function, or relating to "particular regulatory require-ment, were in one contention." If the contentions are to be comprehensive, a certain amount of repetition is unavoidable.
The County's format is clear and reasonable; the objections of LILCO and the Staff merely reflect different preferences, and should be rejected.
Neither LILCO nor the Staff appears to suggest that its desire for a different style of contention constitutes an objection to the admissibility of the contentions. (See, e.g.,
Objections at 4). The County submits that the comments as to the style and organization of the contentions are indeed irrel-evant to the question of their admissibility. To be admissi-ble, the contentions must address issues proper for litigation with "the bases for each contention set forth with reasonable specificity." 10 CFR Section 2.714(b). Insofar as the LILCO and Staff comments go to the eventual order or manner of pre-sentation of evidence by the parties, or ease of reference to the contentions in subsequently filed documents (see Objections at 3 and Staff Response at 2), they are inappropriate for i
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consideration in connection with the admissibility question f
which is now before the Board.3/
Finally, the County is surprised that LILCO and the Staff object to the contentions as being too long or wordy. The
] County submits that the length of its contentions is necessi-tated by their particularity; these contentions put all parties on notice, to the extent feasible at this early stage, of the l'
precise matters being presented and the regulations or other material which are involved. In counsel's experience, short
- contentions dealing with complex matters usually result in the objection that parties do not understand the concern which is being expressed, or that the concern is not sufficiently particularized. Now that the County has gone to considerable effort to lay out its case (to the extent feasible at this i
time), it seems absurd for LILCO and the Staff to object be-cause they are being told too much about the County's concerns.
These " style" objections should be summarily rejected.
-3/ The County recognizes that when it comes to submitting ev-idence, it is quite possible that the parties will choose to follow the common practice of filing consolidated tes-
- timony, or presenting joint witness panels, to address more than one contention. This will resolve the alleged
" repetition problem" where it matters.
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- 2. THE " LACK OF BASIS" OBJECTION As LILCO notes (,see Objections at 4), an intervenor is not required "to detail the evidence which will be offered in <
support of each contention." Mississippi Power and Light Company (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 AEC 423, 426 (1973). Rather, "[ijt is enough that . . . the basis for the contention . . . is identified with reasonable specificity." Id. LILCO acknowledges that meeting the basis requirement "is a very light burden." (Objections at 4). The County submits that its contentions satisfy the basis require-ment, as that requirement has been interpreted in the case law.
In Grand Gulf, the petitioner contended that inadequate consideration had been given to alternative sources of energy.
The Appeal Board ruled that the obligation to identify the basis for contentions with reasonable specificity had been fulfilled when the petitioner's counsel had stated at a prehearing conference "that he intended 'to introduce evidence that there are geothermal sources in the Middle South Utilities System area that could be utilized'. . . . Id. In the Appeal Board's opinion, it was sufficient that the petitioner supported his contention of inadequate consideration of alter-native energy sources with the bald factual assertion that there were such alternative sources. The petitioner identified A
no evidence which supported this assertion; rather, his counsel stated merely that he intended to introduce such evidence..
i Moreover, the Appeal Board in Grand Gulf expressly rejected the argument that the petitioner failed to provide an adequate basis for his contention because he did not buttress his allegation that there were geothermal energy sources in the area. Jd. The Appeal Board ruled, to the contrary, that fac-tual assertions which are the bases of contentions need not be .
supported themselves in the contentions. To impose such an ad-ditional requirement would constitute an evaluation of the merits of contentions. Thus, the Appeal Board noted that in determining the admissibility of a contention, it is_not the function of a Licensing Board to address the merits of that contention. Jd.
All the County's contentions are supported by factual as-sertions which the County intends to prove at the hearing stage. In fact, in many instances the County has gone much farther than the petitioner in Grand Gulf and has identified specific evidence which supports particular contentions. Thus, the County's contentions satisfy the basis requirement, as r
- interpreted in Grand Gulf. -
That an intervenor need not supply the "underpinningc for-i -
his assertion (s]" was reiterated in Houston Lighting and Power s
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l Company (Allens Creek Nuclear Generating Station, Unit 1),
ALAB-590, 11 NRC 542, 548 (1980). In that proceeding, the pe-titioner contended that inadequate consideration had been given to a marine biomass farm as an alternative source of energy, because such a farm was feasible, and because it would be envi-ronmentally preferable to the proposed nuclear power plant. 11 NRC at 544-45., TheLicensingBoardheldkhecontentiontobe inadmissible for lack of sufficient basis. Although the peti-tioner had cited a government study as support for his allega-tion, the Licensing Board ruled that neither in the contention nor at a prehearing conference had the petitioner " provide (d) a basis for alleging that such a large scale marine biomass farm would be an environmentally superior alternative." Id. at 546.
However, the Appeal Board rejected the position that an intervenor must explain or support in a contention an allega-tion which is the basis for that contention (Id. at 547-48) and overruled the Licensing Board:
. . . all that was required of [the inter-venor) on the petition level was to state his reasons (i.e., the basis) for his con-tention that the biomass alternative should receive additional consideration. That re-j sponsibility was sufficiently discharged by his references to Project Independence and his assertion respecting the environmental superiority of a marine biomass farm. 11 NRC 548-49.. (Emphasis added).
The holdings of Grand Gulf and Allens Creek are clear: an intervenor is under no obligation to provide support in its contentions for the factual assertions which form the basis for its contentions. A review of the contentions to which the Staff and LILCO assert " lack of basis" objections reveals that the County has in fact satisfied the basis requirement and 'such objections, therefore, should be rejected.
t In addition, in almost every instance, LILCO's assertion of a " lack of basis" objection is merely an excuse to state its disagreement'with the factual assertion set forth in the con-tention. (See, e.g., Objections at 10 (SC Contention 2.A), 13 (SC Contention 3.C), 21 (SC Contention 19), 23 (SC Contention 23), 24 (SC Contention 25), and 34 (SC Contention 36.M)).
Whether the factual assertions which form tha basis of conten-tions are themselves correct is irrelevant to the issue of ad-missibility; their correctness is a matter to be determined on
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the merits either through summary disposition or at a hearing.
See Grand Gulf, supra, 6 AEC at 426; Allens Creek, supra, 11 NRC a't 551. Thus, the LILCO " lack of basis" objections that dispute the factual premise of a contention must be rejected.4/
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-4/ For the most part, the Staff's " lack of basis" objections, (which appear to be asserted almost indiscriminate 1y with respect to every contention upon which the Staff comments), also amount to a disagreement with the factual l
(Footnote cont'd next page) r
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I In certain other instances, LILCO asserts a " lack of l basis" objection to contentions because it has not yet developed certain pertinent information, and therefore "the (See e.g., objections at 12 (SC l
County has not reviewed it."
l' Contention 2.D), 49 (SC Contention 69), and 60-64 (SC Conten-tions 107-124: Training)). This is a specious objection which should be rejected out of hand. The County's contentions are based on the LILCO Plan as it now exists. The contentions identify problems with the contents of the Plan, as well as inadequacies arising out of the Plan's failure to include certain things. The County cannot be penalized -- by having contentions ruled inadmissible -- because at this time it is unable,to be more specific in discussing inadequacies due to LILCO's failure to complete and/or produce materials referenced in its own Plan.
- 3. THE,",g3CKOFSPECIFICITY" OBJECTION The purpose of the requirement that contentions be pleaded with specificity is "to help assure that other parties are suf-ficiently put on notice so that they will know at least (Footnote cont'd from previous page) assertions contained in the contentions and therefore should be rejected for the same reason.
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generally what they will have to defend against or oppose."
Philadelphia Electric Company (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20 (1974)
(emphasis added). The County's contentions do put other parties on notice; indeed, as discussed earlier, LILCO and the Staff appear in some instances to object that the County has been too precise in explaining its concerns. Moreover, Appeal ,
Board decisions squarely support the adequacy of the County's contentions with respect to specificity.
In Grand Gulf, supra, the petitioner contended that "' the l alternatives of conserving electricity or utilizing other methods of producing ene:gy have not been adequately consid-ered.'" 6 AEC at 425. At a prehearing conference, the peti-tioner's counsel stated that he intended to introduce evidence l
of the existence of available geothermal sources of energy. 6 AEC at 426. Both the Licensing Board and the Appeal Board ad-t mitted the contention. The contention did not define "ade-l quately considered"; it did not identify any alleged sources of l
geothermal energy; it did not specify how the alleged energy sources could be utilized. But it did put the parties on notice generally that the petitioner would argue there were available geothermal sources of energy, and that they were via-ble alternatives to the proposed plant. That was ruled to
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l constitute sufficient specificity. When reviewed against the Grand Gulf standard, the County's contentions clearly are suf-ficiently specific.
Similarly, in Allens Creek, supra, the petitioner's con-tention stated in its entirety:
In the FES, the Staff states that biomass production is "not now a reasonable alter-native" to ACNGS. However, Project Inde-pendence estimates fuels from biomass pro-duction (urban waste, agricultural waste, terrestrial crops marine crops) would amount to 3 x 10 I6 gross BTUs per year, and that large quantities of marine crops can be grown and harvested without subsidies when oil hits $11 per barrel. Project In-dependence estimates a 100,000 acre marine biomass farm, producing 27 x 10 12 BTUs/ year, would cost $578 million. I contend building and operating a marine biomass farm, or other biomass production systems, would be environmentally prefera-ble to ACNGS, and ask the Board to deny the permit under the NEPA.
11 NRC 544-45. In response to assertions that the contention was too vague, the petitioner stated at a prehearing conference that he proposed that "they would grow kelp and take it in and have it decay into alcohol or methane or something like that."
Id. at 546. This contention did not deal with any of the_de-tails of establishing or operating a large-scale marine biomass farm or "other biomass production systems." However, it did put the parties on notice generally that the issues would be i
o whether such a farm could be established, and whether it would be environmentally superior to a nuclear power plant. That was ruled to constitute a legally sufficient degree of specificity.
The County has been much more specific in its contentions than the petitioners were in either Grand Gulf or Allens Creek.
The County's contentions put the parties on notice generally of what they will have to defend against or oppose, as is required by Peach Bottom.5/ Accordingly, the County's contentions should be ruled adequately specific.
In addition, the Board should reject LILCO's curious argument that the County contentions are insufficiently specific because they do not allege how LILCO can correct a particular deficiency or whether, in the County's view, the de-ficiency is uncorrectable. (See, Objections at 5-6). There is 5/ Moreover, LILCO's assertion that the alleged lack of spe-cificity in the County's contentions is particularly no-ticeable "when one asks what type of evidence would have to be presented to either support or refute the conten-tion," is inapposite. (Objections at 4). As noted above, questions of evidence go to the merits of the County's factual assertions which support contentions, and are thus irrelevant to questions of admissibility. Similarly, the suggestion by LILCO (Objections at 5) that the County somehow has an unusually heavy specificity burden because it has conducted a planning effort must be rejected out of hand. No legal authority is cited. Further, whatever the extent of County analyses, the specificity requirement concerns LILCO's Plan, not a plan prepared and rejected by the County.
no requirement -- nor is one cited by LILCO -- that the County include such information in its contentions. Thus the " lack of specificity" objections should be rejected.
- 4. THE "NO LEGAL REQUIREMENT" OBJECTION Both the Staff and LILCO invoke with some frequency a "no legal requirement" objection to certain contentions. By and large, such objections must be dealt with individually, and the County will be prepared to do so at the prehearing conference.
However, the County has the following general response to such objections.
First, the County's contentions must be viewed in the context of the appropriate contention preamble, since the regu-
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latory bases for groups of contentions are frequently set forth in such " preambles."6/ Thus, it is usually inappropriate to look at a particular contention, or a subpart of a contention, in isolation, and assert that there is no stated applicable regulatory requirement. Many of the "no legal requirement" objections asserted by the Staff and LILCO are without founda-tion when the contention or portion of the contention objected to is viewed in the proper context.
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6/ The preamble portions of contentions were separately iden-tified in response to LILCO's and the Staf f's request that this be done. As noted in the Final Contentions (see page
, 3), in the interest of brevity the preambles were not l re-stated in every contention to which they apply.
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Second, the County submits that given LILCO's definition of its "no legal requirement" objection, that objection does not constitute an appropriste admissibility objection. LILCO states that this objection is made to contentions where "what would be necessary to correct the problem the County says exists is not required by the NRC." (Objections at 6) . In i determining the admissibility of a contention, this Board must
. look at the contention, not at what would be necessary, in LILCO's view, tct correct an identified problem. If the conten-l tion is stated with the requisite specificity and regulatory basis, the contention is admissible. LILCO's reasoning, on the l other hand, would lead to absurd results. For example, if the LILCO Plan had no evacuation time estimates, and the County contended that LILCO thus failed to comply with 10 CFR Part 50
, Appendix E, under LILCO s reasoning it could properly object to the admissibility of such a contention by saying: "in order to include evacuation time estimates in our Plan we would have to hire an outside consultant and there is no regulatory require-ment that an applicant hire outside consultants."
LILCO, of course, may disagree with the County's interpre-ta tion of a regulation. LILCO thus may properly argue (and un-i doubtedly will) that the particular regulatory requirements
[ cited by the County in a contention are satisfied without its t
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\ . .. _. . _ _ . _ _ _ _ . . . - _ . . _ . _ _ _ _ _ . _ .
l having to address the problem identified in that contention.
(See e.g., LBP-82-22, slip. op, a t 62) . Resolving that dispute between the parties is the purpose of this litigation. The 4
Board will make its findings on that matter after the parties present their evidence, not in deciding the admissibility of the contention. Thus, the admissibility objections based on what LILCO believes would be required to correct an identified problem should be rejected.
Third, the County also takes issue with LILCO's apparent assertion that the fact that some actions may be "very difficult" for LILCO or that some measures "are probably not incorporated in any other emergency plan" (Objections at 6),
gives rise to a "no legal requirement" objection. Neither the difficulty involved in complying with a regulation, nor the fact that other utilities may not comply with that regulation, means that the regulatory requirement does not exist.
Objections based on these assertions should also be rejected.
- 5. THE " PHASE I" OBJECTION Both the Staff and LILCO assert several " Phase I" objections to the contentions. The frequency with which this objection is raisad requires that each such objection be dealt with individually, and the County will be prepared to do so during the prehearing conference. In general, however, the
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n County submits that the Staff's and LILCO's interpretations of what constitute Phase I issues are inconsistent with previous statements by the Board.
The distinction between Phase I and Phase II emergency planning issues has been discussed many times by the Board.
However, in its April 20, 1983 " Memorandum and Order Denying Suffolk County's Motion to Terminate the Shoreham Operating License Proceedings," at page 63, the Board defined the dis-tinction as follows:
While we have at times described the scope of Phase I matters using such shorthand terms as "onsite matters" or "LILCO's actions under its onsite plan," we consis-tently noted that we wished to litigate
! during Phase I all matters which were at that time capable of final resolution in advance of the then pending preparation of a local offsite plan by Suffolk County . . . .
(Emphasis added). Thus, the Board defined Phase I issues as all matters which were capable of final resolution prior to the release of an offsite plan. Clearly, insofar as such matters depended upon provisions of an emergency plan, they were limit-ed to those addressed in the LILCO onsite plan.
The current litigation deals with LILCO's offsite plan --
the Transition Plan -- which was issued in May, 1983.1/ That 7/ The County also moved on June 27, 1983 for leave to file contentions in this proceeding dealing with certain (Footnote cont'd next page)
Plan for the first time places the issues of offsite response (other than the onsite response of certain of fsite entities) before the Board and parties. Under the LILCO Transition Plan, LILCO itself is responsible for all offsite (as well as onsite) response to an emergency at Shoreham, a f act which was not a part of the Phase I litigation. Nevertheless, LILCO and the Staff now assert that a number of the County's contentions should be excluded from the present litigation because they al-legedly were raised, or could have been raised, during Phase I.
The contentions objected to on this basis include those ad-dressing accident assessment, commercial telephone overload, communications to and among offsite response organizations and personnel, protective actions, public notification, public education, training, and recovery and reentry.
In support of their Phase I objections, LILCO and the Staff essentially assert that Phase I issues include all mat-ters which fall "within LILCO's responsibility to perform, whether onsite or offsite." (Objections at 7-8). This asser-tion, based upon a Board statement quoted out of context, (Footnote cont'd from previous page) offsite elements of LILCO's onsite emergency plan, which could not have been resolved during the Phase I emergency planning proceeding.
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misconstrues the Board's definition of Phase I issues. In the transcript cited by LILCO, the Board also stated:
[The issues described by us] were meant to be a description of the area within which we are requiring contentions to be filed by July 20th
[1982] because that information in the form of the LILCO [onsite] Plan is available. (Tr.
797-98)
We are talking about litigating the exist-ing LILCO [onsite] Plan as opposed to waiting a year because it might be convenient to litigate that when the County Plan is ready to be liti-gated. We are not litigating the evacuation within the area which is dependent on the County Plan. (Tr. 802) 8 Essentially it was our view, and we also indicated this in our order, that LILCO's actions, the applicant's actions under the
[onsite] plan could be litigated. That was not restricted to their actions on site. . . . It is licensee's actions under their [onsite] emer-gency plan. (Tr. 746)
What we believe could be litigated now would also include the arrangement of assistance resources needed on site by the licensee such as medical services and so on. That is for the onsite operations that would need to take place in an emergency. (Tr. 747-48) l LILCO and the Staff appear to be arguing that since the LILCO offsite plan now before the parties requires LILCO to perform I
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offsite as well as onsite functions, that fact somehow retroactively makes such LILCO offsite actions a part of Phase I. Clearly, such was never the intent of the Board, and this Phase I argument must be rejected. The defect in the Staff's and LILCO's reasoning becomes clear when some of the conten-tions sought to be excluded as being Phase I issues are examined.
LILCO asserts a Phase I objection to SC Contention 60, which deals with the need to evacuate at least a radius of five to seven miles around the plant, as opposed to only one or two of LILCO's 19 zones, if any evacuation is ordered, in order to account for the rapidly shifting wind conditions on Long Is-land. LILCO characterizes this contention as being "really a challenge to the methods used to make protective action recom-
- mendations," and asserts that "as such" it was capable of being litigated in Phase I. (See Objections at 48). LILCO's charac-terization and its conclusion drawn from it are incorrect. The plain words of SC Contention 60 indicate that it addresses the question of how LILCO's offsite Plan will be implemented. As noted in the contention, that Plan contemplates the possibility that evacuation of only certain of LILCO's 19 zones would be recommended. The contention sets forth the County's belief that if accident conditions are such that jgnt evacuation is to i
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be ordered, the area to be evacuated should include at least the five to seven mile radius around the plant. The contention also explains the basis for that belief. The contention does not challenge "the methods used" to make protective action rec-ommendations; it challenges the fact that LILCO's Plan contem-plates the possibility of a certain protective action recommen-dation which the County believes would be incorrect. The issue raised in SC Contention 60 could not have been litigated in Phase I, since at that time neither the implementation of an evacuation order, nor the offsite zone configuration of the EPZ, had been determined. Nor, at that time, were those mat-ters to be determined by LILCO. Such matters are clearly of fsite issues that were not a part of, and could not have been litigated during, Phase I.8/
LILCO also asserts a Phase I objection to three of the County's accident assessment contentions. (See Objections at 20-21 concerning SC Contentions 13, 16 and 17). While it is true that Phase I contention EP 10 dealt with portions of the accident assessment problem, it is clear from a reading of that
-8/ The Staff asserts a lack of basis objective to the draf t version of SC Contention 60. (See Staff Response at 18 (SC Contention 4.C.6)). The County submits that the con-tention sets forth its basis with sufficient specificity and therefore the Staff's objection is also without merit.
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contention that it dealt with onsite assessment and that of fsite assessment to be performed by LILCO as discussed in the j onsite plan. The contentions now asserted address the offsite accident and dose assessment process, which, under the LILCO Transition Plan, is to be performed by BNL representatives using procedures set forth in the LILCO Transition Plan OPIPs.
At the time of the Phase I litigation, it was not known that BNL would perform all offsite accident and dose assessment functicas; similarly, it was not known that such assessment would be performed according to the LILCO procedures which were distributed in May, 1983. Clearly, these issues could not have been litigated during Phase I.
LILCO and the Staff also assert a Phase I objection to several of the County's communications contentions. (See, e.g., Objections at 52, 54, 56 (SC Contentions 80, 89 and 96);
Staff Response at 24-27 ( former SC Contentions 8. A.1, 8. A.2, 8.A.3, 8.B.4 and 8.C.5)). These objections are without basis.
The LILCO onsite plan provided for notification by LILCO l of Federal, State and County personnel of an accident at the Shoreham p,lant. (Of course, it was not known during Phase I that many of the "offsite government officials" to be contacted by LILCO would be LILCO's own employees, as is proposed under the LILCO Transition Plan). It also provided for LILCO to
communicate with a certain limited number of offsite organizations who would be expected to report onsite. However, LILCO's onsite plan did not address how offsite organizations or personnel would notify their personnel, or how they would communicate with each other during the emergency, or how the offsite organizations would notify or communicate with members of the public. It of course did not address how LILCO employ-ees who would perform the roles of local and State government officials would be notified. Nor was there an offsite plan in existence at the time of the Phase I litigation from which it could have been determined how such notification and communica-tions were to be implemented. The LILCO Transition Plan includes provisions for LILCO/LERO's notification of all its own personnel, non-LILCO response organizations, special facilities, reception and relocation centers and the public, as well as for communications by and among both LILCO/LERO person-nel and other offsite response personnel. These are the mat-ters addressed in the County's contentions. It thus is clear that the communications issues now raised by Suffolk County and other intervenors could not have been litigated during Phase I.
l For example, LILCO and the Staff object to SC Contention 96 as a Phase I issue. That contention alleges that the U.S.
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Coast Guard will be unable either to provide effective notification of an emergency to boaters and swimmers in the Long Island Sound, or to restrict access to the EPZ during an emergency.. In fact, this issue could not have been litigated during Phase I because the onsite plan provided that these functions were to be performed by the Suffolk County Police Department Marine Bureau.
Similarly, LILCO and the Staff assert that the issue of commercial telephones becoming overloaded in an emergency was raised in Phase I and may therefore not be litigated at this time. (See, e.g., Objections at 26, 52-53, 55-56 (SC Conten-l tions 29.C.2.e., 79, 80, 81, and 95); Staff Response at 24 (former SC Contentions 8.A.1 and 8.A.2)). While it is true that onsite contention EP 11 raised the problem of commercial telephone system overload, that contention was limited only to the issue of the onsite emergency organization's ability to no-tify a limited number of offsite response organizations of an accident at the Shoreham plant. Indeed, the Board specifically stated in its Prehearing Conference Order of July 27, 1982 that contention EP 11 should focus upon LILCO's ability to notify
- "the first line of authorities" (presumably, Federal, New York State and Suffolk County officials) of an accident.
EP 11 did not, in any way, address notification or commu-nication from an offsite organization to its own personnel or to other offsite organizations expected to support the offsite r espo nse . Indeed, since there was no offsite plan describing how notification would be accomplished or what offsite organi-zations would be notified for the offsite response, no conten-tions on such issues could have been formulated at the time of the onsite (Phase I) litigation. Therefore, contrary to the assertions of LILCO and the Staff, the issue of commercial telephones being overloaded in an emergency, thereby precluding notification of and communication by and among offsite organi-zations and personnel, as stated in the County's contentions now before the Board, were not capable of being litigated dur-ing Phase I.
With respect to SC contentions 107-124 concerning training, the Staff asserts that all training issues were in-cluded in Phase I EP Contention 6 and were settled by the parties. (See Staff Response at 31) . This assertion is simply untrue.9/ EP 6 dealt only with training for those offsite and LILCO personnel who were expected to respond onsite. Moreover,
~9/ LILCO does not assert any Phase I objections to the Coun- l ty's training contentions (SC Contentions 107-124),
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the settlement that was eventually reached concerned only those fire personnel who were expected to respond onsite from departments immediately surrounding the Shoreham plant. None of the Phase I contentions addressed the training of offsite personnel from offsite agencies expected to participate in the offsite response. Nor did any of the Phase I contentions address the training of LILCO offsite response personnel, who, under the new LILCO offsite Plan, constitute virtually the entire emergency response organization. Indeed, there is no way that such training concerns could have been expressed dur-ing Phase I. The Staff's Phase I objections to the County's contentions relating to sheltering, the Emergency Operations Center, public notification, public education and recovery and reentry are similarly without basis and should be rejected.
- 6. THE " COUNTY'S OWN DOING" OBJECTION LILCO states that it asserts this objection to any conten-tion it believes to be "a particularly bald stntement of the County's unwillingness [to participate in emergency planning]
and nothing more." (Objections at 9). This objection is asserted with respect to contentions concerning (a) LILCO's lack of legal authority to perform certain actions required under the Plan to be performed by LILCO (e.g., SC Contentions 1, 29, 30, 35.B, 74, 75, 76); (b) the Plan's reliance upon l
facilities that, under the law, are not available for use by LILCO as relocation centers (e.g. SC Contentions 43.A and 53);
and, (c) astonishingly, the contents of LILCO's public informa-tion brochure (SC Contention 103). The Staff raises a similar objection to one of the County's security contentions. (See Staff Response at 22-23) .
LILCO's strange " County's own doing" objection has no basis. There is no law that requires the County to participate in emergency preparedness for Shoreham. Indeed, County Resolu-tion 456-1982 precludes such participation. LILCO may not be happy with that situation, but the fact of County nonparti-cipation cannot be made to disappear because LILCO does not like the County's decision. Indeed, the " County's own doing" objection is really used by LILCO in a bootstrap attempt to avoid having to litigate certain inadequacies in its Transition
- Plan that are, in LILCO's view, beyond its control.
LILCO purports to base this objection on the general guid-ance contained in the Board's April 20, 1983 Order. (See Objections at 9). In fact, contrary to LILCO's assertion, that guidance makes clear the propriety of the County's contentions.
We set forth in full below the portion of the April 20,-1983 order that deals with the scope of contentions:
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_ . . . _ . . _ . . , _ ._ , ,_ _ ~ . . . _ . , - . _ _ m.,,. _ . .
Scope of Contentions Contentions shall be stated with rea-sonable basis and specificity, as required by 10 C.F.R. S2.714, and shall reference both specific portions of the LILCO plan alleged to be deficient and specific sections of the NRC regulations and the guidance of NUREG-0654 which are allegedly not complied with by the LILCO plan. The Board contemplates using the provisions of NUREG-0654 as guidance in the litigation of these contentions. Consistent with our prior discussion, parties are free to liti-gate the proposition that particular factu-al guidance in NUREG-0654 is either not necessary or not sufficient for the Shoreham facility to comply with the Commission's regulations. However, we will entertain no contentions inconsistent with this order. For example, we will not entertain contentions premised solely on the absence of a Suffolk County approved plan.
Among other matters, we will entertain contentions regarding LILCO's ability to implement its offsite emergency plan. Such contentions, however, also must be narrowly drawn and reference specific sections of the plan which LILCO is allegedly unable to implement. A contention stating simply that LILCO's entire plan is not capable of implementation, based upon the County's re-fusal to implement any plan, would be overly broad.
LBP-82-22, slip op. at 62-63 (emphasis added).
The County submits that its contentions regarding LILCO's lack of authority to perform actions identified in the LILCO Transition Plan, its lack of access to a building the Plan has l
designated as a relocation center, and specific inadequacies in its information brochure, meet every requirement set forth in the April 20, 1983 Order. Indeed, the contentions clearly challenge LILCO's ability to implement the transition plan as written. The " County's own doing" objection does not support LILCO's argument that these contentions are inadmissible.
Furthermore, LILCO's " County's own doing" argument is disingenuous. The reason this litigation is taking place at all is to provide LILCO the opportunity to demonstrate, if pos-sible, that its Transition Plan can compensate for Suffolk County's nonparticipation in emergency planning and preparedness. See LBP 83-22, slip op. at 1. LILCO itself has stated: "LILCO is prepared to present evidence on an emergency plan that can adequately protect the health and safety of the public and can be implemented without suf folk County's approval or cooperation. Indeed, LILCO here asserts that this is the case." LILCO's Brief in Opposition to Suffolk County's Motion to Terminate this Proceeding and for Certification, dated March 18, 1983, at 64. (Emphasis added). LILCO cannot now assert that its inability to implement aspects of its own
" compensating" Plan is an improper subject for litigation.
- 7. THE OBJECTIONS TO SC CONTENTION 5 In SC Contention 5, Suffolk County contends that the Shoreham plume exposure EPZ must be extended from LILCO's pro-i posed 10 miles to a distance of approximately 20 miles around the plant. Two bases are set forth: site specific health consequences, set forth in part 5.A. of the contention; and ev-idence of voluntary evacuation in the area around the plant (bu t outside LILCO's 10-mile EPZ ) which makes a more extensive EPZ necessary, set forth in part 5.B of the contention. Both LILCO and the Staff object, in whole or in part, to this con-tention on the basis that there is *no legal requirement for an EPZ larger than 10 miles. (See Obje :tions at 14-17 and Staff Response at 8-9). The County submits that SC Contention 5 is admissible.
First, there is no basis for objection to part 5.B of the contention. As noted by LILCO, at the prehearing conference on March 9 and 10, 1982, the Board struck SOC Contentions 1 and 2, both of which called for a Shoreham-specific PRA and consequence analysis to determine the configuration of the Shoreham EPZs. However, the Board noted that SOC Contentions 1 and 2 were dismissed without prejudice to later contentions that the EPZs should be adjusted to " local conditions" on Long Island. (See Objections at 15, including note 8). The Board clarified its ruling as follows:
i In addition, our ruling does not preclude a contention that because of the geography of Long Island, evacuation planning within an approximate 10 mile EPZ may not be adequate because of the impact of persons outside and to the east of the EPZ choosing to evacuate and having to do so by coming through the EPZ. The Board indicated that whether or not contentions were filed on this issue, it would be pursued by the Board (Tr. 396-97).
Order, March 15, 1982 at 25. (Emphasis added). Thus, the Board already has specifically committed to evaluating the im-pact of the evacuation shadow phenomenon on the size of the Shoreham EPZ. SC Contention 5.B explicitly addresses that problem and suggests that its effect is to require an EPZ of about 20 miles. Therefore, SC Contention 5.B is clearly admis-sible.10/
Second, there also is no basis for denying admission of part A of SC Contention 5 -- the part which alleges that the-health consequences of a severe accident require plume exposure planning beyond 10 miles. The regulations clearly contemplate 4
that a 10-mile EPZ, while the norm, is not a precise measure.
The County believes its detailed evidence to be presented in testimony will support a finding that under the site specific i
--10/ Unlike the Staff, LILCO appears to recognize that SC Con-tention 5.B is proper and merely calls for consolidation.
(See Objections at 17).
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4 circumstances on Long Island, a zone of 20 miles is needed.
The Board, of course, may disagree, finding instead that a zone l of 10 miles or 12 miles or some other distance is, in fact, appropriate. The point is, however, that the regulations do not bar the County from demonstrating that an adjustment in the proposed EPZ is required.
The County is not contending that EPZs in every case must be based on site-specific PRA-type analyses, as suggested by LILCO. Nor is the County suggesting that it wishes to litigate the adequacy or methodology of the Shoreham PRA. The County submits, however, that it is permitted under the regulations to attempt to prove that site-specific conditions for Shoreham (such as winds, meteorology, road network, plant type) would result, in the event of a serious accident, in health consequences being experienced in a very short time in an area larger than 10 miles and that plume exposure planning is required beyond 10 miles. That is the point of SC Contention 5.A. As noted above, the precise area which must be considered for planning purposes is something that the Board will ulti-mately decide. The County believes a 20-mile zone is consis-
- tent with the NRC rules, but the Board may finally determine that a zone of 10 miles or some other distance is appropriate.
Nevertheless, the County is entitled to an opportunity to i l l
present its evidence, and should not be prohibited from doing so by a ruling that its contention is inadmissible.ll/
Accordingly, in all respects, SC Contention 5 is admissi-ble for the purpose of permitting introduction of site specific evidence designed to test the adequacy of a lJ-mile EPZ. The LILCO and Staff attempts to bar introduction of such evidence should be rejected.
- 8. Objections to SC Contentions 22-23.
SC Contentions 22 and 23 allege that sheltering is not an adequate protective action and that the LILCO Transition Plan therefore fails to comply with 10 CFR Sections 50.47(a)(1) and (b)(10) and NUREG 0654,Section II.J.9, because: persons told to do nothing would nonetheless attempt to evacuate and there-fore would be unable to shelter if later told to do so (SC 11/ The County recognizes that the Licensing Board in the San Onofre proceeding indicated that a waiver of the regula-tions under Section 2.758 would be necessary before a 20-mile EPZ could be required. See Southern California Edison Co. (San Onofre Nuclear Generating Station),
LBP-82-39,15 NRC 1163,1178-81 (198 2) . The County disagrees with that decision to the extent that it at-tempts to set a hard and fast rule. Rather, while the regulations do certainly contemplate a 10-mile EPZ in most cases, they also permit variations in the EPZ depending upon the local conditions. The regulations place no specific limit (like 9 miles or 12 miles) on the amount that an EPZ can vary from the nominal 10 miles. That is a factual issue which the regulations properly leave for l individual proceedings to resolve.
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Contention 22); and, persons who attempted to follow a sheltering recommendation would still receive health-threatening radiation doses due to the low shielding factors associated with available shelters on Long Island (SC Conten-tion 23). .
LILCO objects to SC Contentions 22-23 as " going beyond the emergency planning regulations." (Objections at 22). The Staff also opposes admission of these contentions, asserting ,
that they " attack" the Commission's regulations. (Staff Re-sponse at 12-13).12/ LILCO and the Staff both assert, in es-sence, that the County's contentions are improper because LILCO is not obligated to guarantee that no one will act contrary to a protective action recommendation announced to the public.
They also assert that there is no legal requirement that a pro-tective action guarantee zero dose to the public. (See Objections at 22-23; Staff Response at 12-13) .
The County agrees that there is no requirement for LILCO to " guarantee" cither that everyone will obey a protective action recommendation or that a protective action will result
--12/ The Staff also asserts, without citation or explanation, that because such contentions address the " feasibility" of a sheltering protective action they are somehow improper.
(See Staff Response at 11-12) .
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l in zero dose to the public. The County's contentions, however, do not assert the existence of such a requirement.
As stated in the County's contentions, LILQO is required to demonstrate that the state of emergency preparednes's .
provides " reasonable assurance that adequate protective measures can and will be taken in the event of a'tadiological emergency." 10 CFR Section 50.47(a)(1) (emphasis.added). (See Preamble to SC Contentions 19-68 and Fur ther Preamble to SC ,' N Contentions 21-24, at pages 39-41 and 43 of thescontentions).
The overall emergency preparedness effort must therefore include the formulation of satisfactory and adequate protective actions. See Cincinnati Gas & Electric Company (William H.
-a Zimmer Nuclear Station, Unit No. 1), ALAB-727, ' NRC (slip op., at 22, 23 (May 2, 1983)). The rule speaks to the
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" adequacy" of these protective measures. To determine adequa-cy, one must go beyond a check-list approach to the 16 planning standards of Section 50.47(b), and examine the likely result ofi a protective action recommendation.. See Southern Califor'nia Edison Company (San Onofre), LBP-81-3 6, 14 NRC ' 6 91, 6 9 8-9 9 (1981). The point of SC Contentions 22 and 23 is that, i n .,t h e , ,
County's view, LILCO has failed to carry the burden of '
demonstrating the adequacy and implementability of its Plan with respect to the proposed protective action of[ sheltering,
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. s I because sheltering will not, in fact, provide adequate protection.
These contentions, in effect, assert that sheltering, as proposed by LILCO under the particular facts and circumstances of this case, co'nstitutes an " action" but not a " protective"
- u. action. Thus, the County intends to introduce evidence that shelter'ing as proposed by LILCO will result in no significant i
dose savings or protection for substantial segments of the Long Island popu'.a tion, and thus cannot be viewed as an adequate protective me? sure. The regulations clearly are not challenged by eEidence'w'ich would contest whether a proposed licensee
- . " protective neesere" will in fact be protective or adequately protective. 'The objections to SC Contentions 22 and 23 should be rejected
- 9. OBJECTIONS TO SC CONTENTIONS 61-68 sf LILCO makes a "no legal requirement" objection to SC Con-s tentions"61-68, which deal with' food, milk, water and livestock
. s-w i ,
control for the 50-mile'dngestion exposure pathway. (See
, 3 s Objections at,48-49). The Staf f makes a similar objection.
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( See eA, Staf f P.esponse 7 at s 19-20) . - LILCO asserts that the x
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, ingestionipathway_Efi is to be administered by the State and i' x -
D therefore protecti've actions dealing with ingestion exposure s
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2 ar'e not;.. required toh b e coverod' {n a' local plan. The County e ,. K, . -
, submits..that_in Ae;, Y.thsc'on. text of t.his case, JLILCO is wrong.
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b with respect to the ingestion exposure pathway, which are identified in the County's contentions, cannot be asserted with respect to any State plan. Second, the LILCO Transition Plan purports to be one capable of compensating for the lack of governmental participation in emergency planning. Thus, the LILCO Plan and procedures purport to address the ingestian ex-posure pathway as well as all other elements of emergency plan-ning that are identified in the regulations. At LILCO's re-quest the parties are preparing to litigate the adequacy of the LILCO Plan. Now that the County has identified specific inadequacies in the Plan's consideration of ingestion pathway matters, LILCO cannot properly complain that such cententions are improper.
Finally, the regulations require that protective actions for the ingestion exposure pathway be developed, and that the state of offsite preparedness provide reasonable assurance that adequate protective actions can and will be taken in the event of an emergency. See e.g., 10 CFR Section 50.47(a)(1),
(b)(10), (c)(2). If LILCO's Plan as to these matters were to be ignored, as LILCO appears to suggest, a finding of non-compliance with those regulatory requirements would be the un-l avoidable result. LILCO cannot have it both ways. Its Plan
- either addresses all regulatory requirements (including those
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relating to the ingestion exposure pathway), and contentions as to all such matters are therefore appropriate; or, it does not 1
! address ingestion exposure pathway issues, in which case, since
there is no other offsite plan before the Board, there can be no finding of compliance with the regulations relating to such issues. The objections to SC Contentions 61-68 should be rejected.13/
Respectfully submitted, s Dated: July 12, 1983 David J. Gilmartin Washington, D.C. Patricia A. Dempsey a
Suf folk County Depar tment of Law Veterans Memorial Highway Hauppauge, New York 11788 Herbert H. Brown Karla J. Letsche Michael S. Miller John E. Birkenheier KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS .
1900 M Street, N.W., Suite 800 Washington, D.C. 20036 Attorneys for Suffolk County 13/ The Staff's objections to SC Draft Contentions 4.D.2, 4.D.7, 4.D.8, 4.D.9, 12.G, 12.H, 12.I, and 13 (see Staff Response at 19-21, 32-33) suffer from the same defect and should also be rejected.
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. UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board
)
In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322
) (Emergency Planning)
(Shoreham Nuclear Power Station, )
Un.it 1) )
)
CERTIFICATE OF SERVICE I hereby certify that copies of Suffolk County's Response to LILCO's Objections to Intervenors' Consolidated Emergency Planning Contentions and to NPC Staff Response to Draft Emer-gency Planning Contentions were served this 12th day of July, 1983, by first-class mail, postage prepaid, unless otherwise indicated.
James A. Laurenson, Chairman
- Ralph Shapiro, Esq.**
Atomic Safety and Licensing Board Cammer and Shapiro U.S. Nuclear Regulatory Commission 9 East 40th Street Washington, D.C. 20555 New York, New York 10016 Dr. Jerry R. Kline* Howard L. Blau, Esq.
Atomic Safety and Licensing Board 217 Newbridge Road U.S. Nuclear Regulatory Commission Hicksville, New York 11801 Washington, D.C. 20555 W. Taylor Reveley, III, Esq.***
Dr. M. Stanley Livingston** Hunton & Williams 1005 Calle Largo P.O. Box 1535 Santa Fe, New Mexico 87501 707 East Main Street Richmond, Virginia 23212 Edward M. Barrett, Esq.
General Counsel Mr. Jay Dunkleberger Long Island Lighting Company New York State Energy Office 250 Old Country Road Agency Building 2 Mineola, New York 11501 Empire State Plaza Albany, New York 12223 Mr. Brian McCaffrey Long Island Lighting Company Stephen B. Latham, Esq.**
175 East Old Country Road Twomey, Latham & Shea Hicksville, New York 11801 33 West Second Street i Riverhead, New York 11901 l
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l Nora'Bredes Docketing and Service Section Executive Director Office of the Secretary Shoreham Opponents Coalition U.S. Nuclear Regulatory Comm.
195 East Main Street Washington, D.C. 20555 Smithtown, New York 11787 Hon. Peter Cohalan Marc W. Goldsmith Suffolk County Executive Energy Research Group, Inc. H. Lee Dennison Building 400-1 Totten Pond Road Veterans Memorial Highway Waltham, Massachusetts 02154 Hauppauge, New York 11788 MHB Technical Associates Eleanor L. Frucci, Esq.*
1723 Hamilton Avenue Atomic Safety and Licensing Suite K Board Panel San Jose, California 95125 U.S. Nuclear Regulatory Comm.
Washington, D.C. 20555 Joel Blau, Esq.
New York Public Service Comm. Ezra I. Bialik, Esq.
The Governor Nelson A. Rockefeller Assistant Attorney General Building Environmental Protection Bur.
Empire State Plaza New York State Dept. of Law Albany, New York 12223 2 World Trade Center New York, New York 10047 David J. Gilmartin, Esq.
Suffolk County \ttorney Atomic Safety and Licensing H. Lee Dennison Building Appeal Board Veterans Memorial Highway U.S. Nuclear Regulatory Comm.
Hauppauge, New fork 11788 Washington, D.C. 20555 Atomic Safety and Licensing Jonathan D. Feinberg, Esq.
Board Panel Staff Counsel, New York State U.S. Nuclear Regulatory Commission Public Service Commission Washington, D.C. 20555 3 Rockefeller Plaza Albany, New York 12223 l Bernard M. Bordenick, Esq.*
David A. Repka, Esq. Stewart M. Glass, Esq.
U.S. Nuclear Regulatory Commission Regional Counsel Washington, D.C. 20555 Federal Emergency Management Agency Stuart Diamond 26 Federal Plaza, Room 1349 Environment / Energy Writer New York, New York 10278 NEWSDAY Long Island, New York 11747 James B. Dougherty, Esq.*
3045 Porter Street, N.W.
WashinQton, D.C. 20008 1
..J. - ..-.
~ ~ ~ ' '
Spence Perry, Esq.
Associate General Counsel Federal Emergency Management Agency Washington, D.C. 20472 Mr. Jeff Smith Shoreham Nuclear Power Station P.O. Box 618 North Country Road Wading River, New York 11792 Michael S. Miller KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS 1900 M Street, N.W., Suite 800 Washington, D.C. 20036
- By hand
- By Federal Express
- By computer
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