ML20076D351
| ML20076D351 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 08/19/1983 |
| From: | Christman J HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, NUDOCS 8308230366 | |
| Download: ML20076D351 (9) | |
Text
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- LILCO, 1983 E? AU522 ko:10 UNITED STATES OF AMER:;CA QN%S,ECrgI NUCLEAR REGULATORY COMM:
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Before the Atomic Safety and Licensing Board In the Matter of
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LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322 (OL)
)
(Shoreham Nuclear Power Station, )
Unit 1)
)
LILCO'S RESPONSE TO SUFFOLK COUNTY MEMORANDUM IN RESPONSE TO BOARD INQUIRY REGARDING CONTENTION 22 Following oral argument on the admissibility of the con-tentions on August 9, 1983, and aware that the Board would issue a ruling on August 19, Suffolk County waited a week until August 16 and filed an additional bit of argument called "Suffolk County Memorandum in Responce to Board Inquiry Regarding Contention 22."
This unauthorized pleading was served on the Board by hand on August 16, in time for the Board to consider it in writing its opinion, and was sent to LILCO by Federal Express so as to arrive August 17.
The County's Unauthorized P.1.eadings Suffolk County has adopted the practice of filing plead-ings with the Board or the Commission whenever it feels it has something to say.
The August 16 Memorandum, filed practically i
on the eve of the Board's decision on contentions, is a good l
example, but it is only one of many.1/
LILCO therefore 1/
It le robably one of the least justified.
The County has had multip.:. opportunities to argue the admissibility of its j
8308230366 830819 (footnote continued) j PDR ADOCK 05000322 l
35D3
C Ip Y supports the recommendation of the NRC Staff in the "NRC Staff Response to 'Suffolk County Motion for Leave to Respond to LILCO and NRC Staff NEPA Arguments,'" filed with the other Board on August 10, 1983, that the County be instructed to re-frain in the future from submitting unauthorized filings until prior authorization is received from the Board.
At the least, the County should=be required to inform the other parties' counsel by phone when it plans to file an unauthorized pleading shortly before some important event such as a prehearing con-ference or a Board decision.2/
These recommendations are for the future.
We would also be inclined to urge the Board to strike the County's August 16 Memorandum, except that (1) this is unrealistic, since it is likely that everybody in the case has already read the pleading and (2) the pleading doesn't appear to do any significant dam-age to the other parties' arguments.
Instead, if the Board wishes to consider the August 16 Memorandum along with all the (footnote continued) contentions, including two written responses to LILCO's objec-tions to the contentions and oral argument on August 9.
Thus the situation is distinguishable from Long Island Lighting Co.
(Shoreham Nuclear Power Station, Unit 1), LBP-81-18, 14 NRC 71, 72-73 (1981).
2/
For example, the County's August 8 Response to LILCO's Ob-jections reached LILCO the afternoon before the prehearing con-ference.
Since the document is 125 pages long, presumably it was in preparation for several days, so that notice that it was coming could have been given.
I
. Y other argument on the contentions, LILCO suggests that the Board also take into account the brief arguments set out below.
In other words, if (as LILCO believes) the filing of the August 16 Memorandum was improper, the appropriate sanction in this instance 3/ is not to strike the County's pleading but simply to accept the equally unauthorized argument below.
Local Conditions The County's August 16 Memorandum is devoted in large part to arguing that all the County wants to litigate under Contention 22 is " local conditions."
What is unclear is why the County has to have Contention 22 to litigate " local condi-tions."$/
Of course there are local conditions that must be con-sidered in emergency planning for Shoreham.
These local condi-tions have been taken into account in LILCO's Transition Plan.
If the County thinks a particular local condition has not been 3/
And possibly in this instance only.
LILCO may well move to strike unauthorized pleadings in tue future.
4/
The County lists the " shadow phenomenon" as a " local con-dition" that needs to be addressed.
In the first place, the County has raised the issue of the shadow phenomenon in Conten-tion 23.
In the second place, overreaction in an emergency is not something new, something unique to radiological emergen-cies, or something unique to Shoreham.
In the Waterford pro-ceeding the NRC Staff witness testified that complications arising from public hysteria were taken into account, though without express mention, in NUREG-0654.
Louisiana Power &
Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC slip op. 44 (June 29, 1983).
4 Y
taken into account, or has not been taken into account adequately, and if the County can allege with adequate specif-icity and basin how the condition affects emergency planning, then the County can produce an admissible contention.
- Indeed, it appears to LILCO that everything the County wants to liti-gate under Contention 22, save the PRA, is covered by some other contention.1/
What the County is apparently trying to do in its August 16 Memorandum is reformulate or recharacterize Contention 22 so as to make less clear that what the County proposes is to redo the analysis found in NUREG-0396 (albeit using different criteria) and' set an EPZ as if the regulation S 50.47(c)(2) did not exist.
But as the County backs further and further away from stating what it really wants to do, it falls into the trap of vagueness.
To the extent it now alleges only that it wants to litigate " local conditions" under Contention 22, it is rais-ing a contention with the same lack of specificity that caused its Phase I contention EP 1 (which also addressed " local condi-tions") to be ruled inadmissible for osarbreadth.g/
h/
The County has indicated that even the PRA it hopes to litigate under the " shadow phenomenon," " dose assessment," and
" protective action" contentions.
But LILCO will in all likeli-hood oppose the admission of PRA evidence under these conten-tions when the time comes.
s/
See Supplemental Prehearing Conference Order (Phase I -
Emergency Planning), LBP-82-75, 16 NRC 986, 991-95 (1982);
Prehearing Conference Order (Phase I - Emergency Planning),
slip op. 5-7 (July 27, 1982).
. Y To repeat:
if there is any " local condition" with a specific impact on emergency planning that should be consid-ered, the County should have written a contention about it.
Indeed, it appears to LILCO that the County has already written a contention on just about every local condition that can be thought up.
The March 15, 1982, Order Suffolk County keeps relying on a quotation in the Board's Order of March 15, 1982:
[O]ur ruling does not preclude a conten-tion that because of the geography of Long Island, evacuation planning within an approximate 10 mile EPZ may not be ad-equate because of the impacts of persons outside and to the east of the EPZ choos-ing to evacuate and having to do so by coming through the EPZ.
Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-19, 15 NRC 601, 618-19 (1982).
It has never been clear to LILCO why Suffolk County thinks this quotation sup-ports its case.
The contention envisioned by the Board in the quotation is about the adequacy of evacuation planning within an approximate 10-mile EPZ.
This supports the view that, while Suffolk County may properly litigate whether the inappropriate evacuation (overreaction) of people outside the 10-mile EPZ may cause the response inside the 10-mile EPZ to be inadequate, it cannot properly litigate whether the 10-mile EPZ ought to be expanded to, say, 15 miles or 20 miles.7/
7"/
Note also that the quoted language addresses the impact of" persons outside the EPZ, not the impact "on" those per-sons.
o 1
0 V Ad Hoc Augmentation of Emergency Response The County continues to assert (at page 4 of its Memo-randum) that it is appropriate to litigate whether there can be an ad hoc augmentation of the emergency response beyond the 10-mile zone.
This-is unquestionably a challenge to the NRC regulations.
One of the four bases of the 10-mile EPZ stated in NUREG-0396 and NUREG-0654 is that a 10-mile zone is a suffi-cient base to allow for ad hoc augmentation beyond that dis-tance.
This was clearly a considered judgment (not an "assump-tion" as the County keeps claiming)g/ and was adopted by the Commission when it adopted the emergency planning rule.9/
Litigating whether this generic judgment applies to Shoreham would be a challenge to the regulation, pure and simple.
Conclusion LILCO does not believe that either this response or the County's August 16 Memorandum was necessary, but if one is to be considered, then the other should.be considered along with it.
LILCO does believe that the practice of one party's always l
g/
See page 9 of the August 16 Memorandum.
9/
These distances.[lO and 50 miles) are considered large enough to provide a response base that would support activ-ity outside the planning zone should this ever be needed.
l 45 Fed. Reg. at 55,406 col. 2 (Aug. 19, 1980) (preamble to final emergency planning rule),
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. v attempting to have the last word, no matter what the regulations may provide, should not be allowed by this or any other Board.
Respectfully submitted, LONG ISLAND LIGHTING COMPANY
?rd By famesN. Christman Hunton & Williams P.O.
Box 1535 707 East Main Street Richmond, VA 23212 DATED:
August 19, 1983 iu
LILCO, August 19, 1983 i
CERTIFICATE OF SERVICE In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
Docket No. 50-322 (OL)
I hereby certify that copies of LILCO's Response to Suffolk County Memorandum In Response to Board Inquiry Regarding Contention 22 were served this date upon the follow-ing by first-class mail, postage prepaid, or (as indicated by i
one asterisk) by hand, or (as indicated by two asterisks) by Federal Exp sas.
James A.
Laurenson, Atomic Safety and Licensing Chairman
- Appeal Board Panel Atomic Safety and Licensing U.S.
Nuclear Regulatory Board Commission U.S. Nuclear Regulatory Washington, D.C.
20555 Commission East-West Tower, Rm. 402A Atomic Safety and Licensing 4350 East-West Hwy.
Board Panel Bethesda, MD 20814 U.S. Nuclear Regulatory Commission Dr. Jerry R.
Kline*
Washington, D.C.
20555 Atomic Safety and Licensing Board Bernard M.
Bordenick, Esq.*
U.S. Nuclear Regulatory David A. Repka, Esq.
t Commission Edwin J. Reis, Esq.
I East-West Tower, Rm. 427 U.S. Nuclear Regulatory 4350 East-West Hwy.
Commission l
Bethesda, MD 20814 7735 Old Georgetown Road (to mailrocm) i Mr. Frederick J.
Shon*
Bethesda, MD 20814 Atomic Safety and Licensing Board Herbert H. Brown, Esq.*
U.S. Nuclear Regulatory Lawrence Coe Lanpher, Esq.
Commission Christopher McMurray, Esq.
East-West Tower, Rm. 430 Kirkpatrick, Lockhart, Hill, 4350 East-West Hwy.
Christopher & Phillips Bethesda, MD 20814 8th Floor, 1900 M Street, N.W.
Washington, D.C.
20036 Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555
. 6 David J. Gilmartin, Esq.
Ralph Shapiro, Esq.**
Attn:
Patricia A. Dempsey, Esq.
Cammer and Shapiro, P.C.
County Attorney 9 East 40th Street Suffolk County Department of New York, NY 11901 Law Veterans Memorial Highway MHB Technical Associates Hauppauge, NY 11787 1723 Hamilton Avenue Suite K Eleanor L.
Frucci, Esq.*
San Jose, CA 95125 Attorney Atomic Safety and Licensing Mr. Jay Dunkleberger Board Panel New York State Energy Office U.S.
Nuclear Regulatory Agency Building 2 Commission Empire State Plaza East-West Tower, North Tower Albany, NY 12223 4350 East-West Highway Bethesda, MD 20814 Stephen B.
- Latham, Esq.**
Twomey, Latham & Shea Jonathan D.
Feinberg, Esq.
33 West Second Street New York State P.O.
Box 398 Department of Public Service Riverhead, NY 11901 Three Empire State Plaza Albany, NY 12223 Stewart M.
- Glass, Esq.**
Regional Counsel i
Mr. Marc W.
Goldsmith Federal Emergency Management Energy Research Group Agency 4001 Totten Pond Rosd 26 Federal Plaza, Room 1349 Waltham, MA 02154 New York, NY 10278 James B.
Dougherty, Esq.*
Spence W.
- Perry, Esq.**
3045 Porter Street Associate General Counsel Washington, D.C.
20008 Federal Emergency Management Agency Howard L.
Blau 500 C Street, S.W.
217 Newbridge Road Room 840 Hicksville, NY 11801 Washington, D.C.
20472 Ms. Nora Bredes Executive Coordinator Shoreham Opponents' Coalition 195 East Main Street Smithtown, NY 11787 "h. &:arx
_=
James N. Christman Hunton & Williams P.O.
Box 1535 707 East Main Street Richmond, Virginia 23212 DATED:
August 19, 1983 I