ML20076J992

Response Opposing Citizens for Orderly Energy Policy,Inc 830614 Petition to Intervene.Criteria for Late Filing Not Met.Substantive Interests Can Be Protected Through Limited Appearance Statements.W/Certificate of Svc

ML20076J992
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	06/29/1983
From:	Latham S SOUTHAMPTON, NY
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL-3, NUDOCS 8307070203
Download: ML20076J992 (14)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION eetore the Atomic Satety and Licensing board In tne Matter ot J.

) Docket No. 50-322 (OL)

LONG ISLAND LIGHTING COMPANY )

) (Ottsite Emergency Planning )

( Shorenam Nuclear Power Station ,)

Unit 1) )

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RESPONSE OF TOWN OF SOUTHAMPTON TO CITI2 ENS FOR AN ORDERLY ENERGY POLICY, INC. PETITION TO INTERVENE In a pleading catec June 14, 1983, Citizens For An Orderly Energy Policy, Inc. (" Citizens") seeks admission as a tull party in the above proceecing pursuant to 10 C.F.R. 2.714. Citizens argues that:

1. Its Petition is timely based on the theory that tne ottsite emergency planning phase or Case 50-322 somehow constitutes a ne w proceediny; or, in the alternative

2. Citizens meets the test tor admission as a late intervenor based upon a Dalancing or the tive tactohs se.t torth in

'10 C.F.R. 2.714(a)(1)(1)-(v).

For tne reasons set torth be lo w , neither argument aavanced oy Citizens has merit and its Petition to Intervene shoulo be ceniea.

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1. *11me l i ne s s The bulk or Citizens' pleaaing (pp. 1-7; 12-13) consists or a contrived end run around the Commission's reg u la t ion s tor timely aamission to a licensing proceeding. In simple terms, a person seeking admission as a party must meet certain "stancing" require-ments (generally set torth in 10 C.F.R. 2. 714 ( a ) ( 1 ) and (d)) and The Petition and/or request shall be filed not later than the time specified in the notice of hearing..."

(2.714(a)(1)).

Tne regulations specifically provide for consideration of untimely .

tilings based upon a balancing of five factors set forth in 10 C.F.R. 2.714(a)(1)(i)-(v) in addition to the criteria set torth in 2.714(d).

The date tor timely intervention expired on April 19, 1976 (see 41 Fed. Reg. 11367 (1976)). No new Notice of Hearing inviting timely petitions to intervene has oeen issued by the Board and none is cited by Citizens.* Mere allegations that the Board's conduct of ott-site emergency planning matters contains the trappings ot a new hearing coes not sustain the conclusion that Citizens' Petition is timely. At most, these tactors might l

( support a determination that good cause exists tor an untimely l

l tiliny, although as we explain Delow, Citizens has not demon-i I

strated g000 cause here.

• Ine doord's "Urder Schecuting Prehearing Conterence" cated June 10, 19 8.s o u t l i n i ng the matters to De adoressed at the July 13, 19dj nearing on the ottsite phase ot 50-3 2 2 does invite timited appearance statements, wnleh is the appropri-ate v e n,l e t e tor Citizens' parttedpation at tnis late,cate.

Throughout the seven-plus years or this proceedin,, tne composition at the Licensing ni nt ro in Case 30-322 nas treguently changed in whole or in part; entire new Boards have been cesigned to hear ciscrete phases ot tne case (e.g., security issues); ano senedules tor ciscovery anc tiling or contentions have bee n set and reset (see e.g., boarc Orcer dated March 15, 1982). None or these phenomena has re su lt ed in a."new nearing" justitying timely intervention as Citizens' suggests. Nor do they constitute a new hearing here and Citizens' ettorts to tinesse one should be dismissed by the Board.

II. Untimely Filinus On prior occasions, LILCO has cogently (it not always successtully) summarizec the balancing process that must be applieo to an untimely petition tor intervention:

Before beg inni ng , the nature of the S2.714 balancing process is usefully reviewed to emphasize the centrality of the first element in the balance -- good cause.

Where no good cause is given for the untimeliness of an intervention request, "the petitioner's demonstration on the other factors must be particularly strong." Duke Power Co. (Perkins Nuclear Station, Units 1, 2 and 3),

ALAB-431, 6 NRC 460, 462 (1977) [ hereinafter cited as Pe rk ins ] , see also Nuclear Fuel Services, Inc. (West Valley Reprocessing Plant) , CL1-75-4, 1 NRC 273, 275 (1975). In a situation such as this one, where the in-tervention request comes grossly out of time, the peti-tioner's burden is particularly great. Even though all of the factors of S2.714(a) must be considered, "lijn the instance of a very late petition, the strength or weaknets of the tencered justification may thus prove crucial." Puget Sound Power and Light Co. (Skagit

l Nuclear Power Project, Units 1 and 2), ALAb-552, 10 NRC 1, S (1979). In a subsequent opinion, tne Skagit Appeal Board reiterated that " petitioners for intervention who inexcusably miss the tiling deadline by not merely months, but by several years, have an enormously heavy burden to meet." Puget Sound Power and Light Co.

(Skagit Nuclear Power Project, Units 1 and 2), ALAB-SS9, 10 NRC 162, 172 (1979) (emphasis in original).

(Applicant's opposition to SUC's Requests tor Renoticing and Intervention, datec February 8, 1980 at pp. 4-5.)

I It bears noting that LILCO characterizec SOC's Pettion as "g rossly out ot time" when it was filed almost three and one-halt years ago. LILCO is apparently at a loss for words to characterize a Petition tiled not just three and one-halt -- Dut a

tuli seven years atter the ceadline -- given its recent support tor Citizens' Petition (dated June 22, 1983). Not surprisingly, LILCO is not persuadea by its own arguments wnen applied to a supporter or the Shoreham project.

A review ot Citizens' Petition reveals that it nas offered no

" good cause" tor tiling grossly out ot time. What a rg umen ts it can muster are included in a single paragraph on page 14 ot the

, Petition. Citizens alleges that " [t]he events leacing up to tnis proceeding have only recently occurred" and that in view or the County's Feoruary 17 resolution declining to acopt its cratt Rad io log ica l Emergency Response Plan ( " RE RP" ) , anc relatec nearing cevelopments, Citizens could not have acted any more quickly to pre-pare its petition to intervene in this proceeding.

(Petition, at p. 14.)

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t As previously mentionec, tne ooara's cancoct or Snorenom's l

ott-site emergency ,>1onntnj matters does not constitute a "new nearing" nor is tnere any "recent" new event constituting good cause tor late intervention. A more critical tactor, however, which undermines Citizens' assertions ot good cause is the simple tact that several or Citizens' memoers nave participated over the f past several months in the events which Citizens claims to be new and they nave previously raised the very issues they seek to litigate here.

For example, two ot Citizens' leading advocates, Andrew Hull '

and Vance Sailor, were (or are) also members of Energy Education 3 3 Exponents Inc. ("E").* On January 19, 1983, E protested its f exclusion trom the Suttolk County Legislature 's hearings on the County's dratt RERP, was then invited to participate, ano did in i tact submit the testimony ot several or its members.

i The testimony alleged generally that:

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1. New source terms rencered the 10 mile EPZ oosolete;

2. Emergency planning was workable tor Suttolk County;

3. The County's 20 mile EPZ was too large; anc l 4. Potential radiation doses to tne public from a " core I ' melt" accident poseo no threat to the public.

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(see Highlights or Testimony Dy E scientists, attached as Appencix A.)

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It is not clear whetner E and Citizens are essentially the

! same entity, only with ditterent names, not uncouotedly the i membership ot Dotn entities substantially overlaps. Aside trom overlapping membership one entity uses v.U. dox,71 in Pa te nog ue while tne otner uses Box 32.

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Tnese same allegations are retlectec as tne general concerns designated as Contentions 1-4 in Citizens' June 22nd tiling.

Citizens has added a fitth contention concerning tne particular expertise ot Brookhaven National La bo ra tories ( " BN L" ) , which we assume LILCO will assert since its plan relies on the

. participation ot BNL. None of the contentions reflects any new intormation except the allegations concerning so.urce terms, which challenge the regulations. In short, Citizens' Petition asserts nothing more than the arguments made by its members months (and in

some cases, year's) ago. ,

1 It should De turther noted that the Town ot Southampton tiled a " Notice ot Intent to Participate" in the ott-site emergency planning hearings on Feburary 23, 1983 Dased on the same intormation available to Citizens.* However, Southampton's*

interest difters signiticantly trom Citizens' in that:

1. As a municipality located immediately outside and east ot the LILCO 10-mile EPZ, Southampton's interest was dramatically

• At the February 24, 1983, hearing on ott-site emergency planning, LILCO's counsel remarked (in response to Southampton's participation),

"We think i t' is awtully late in the proceeding for some-one to be entering, particularly on this issue which has been in the proceeding literally for years." (Tr. 20,237).

tio w e v e r , as tne Board noted in its Maren 10, 1983 Urcer aamitting Southampton to tne proceeding, tnere is no explicit time requirement governing intervention pursuant to 10 C.F.R. 2.713(c) (urcer at p. 13).

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9 attected oy L1LCv's decision not to abice by tne County's emergency planning determinations; and 4

2. Tne rights atfordec interested municipalities under 10 C.F.R. 2.71S(c) are not available to Citizens and do not require tne Dalancing ot tactors set torth in 2.714(a)(1)(i)-(v). (see, Boa rd Urde r , dated Maren 10, 1983, at p. 3).

For reasons which it does not disclose, Citizens chose not to intervene even in February, even though it was incorporated i in January anc its members were actively pursuing the emergency planning issues it seeks to raise here. This unexplained delay .

turther undermines Citizens' speciuos assertions of good cause.

Even hac good cause existed in February, Citizens' inaction tor an adoitional tour months should De fatal to the Petition.

III. Other Factors Pages 7-12 ot Citizen's Petition attempt to address the tour remaining tactors tor late admission, but do so unpersuasively.

Citizens asserts some unique qualitications tor intervention in that "Most' members or Citizens are recognized authorities in the tield or nuclear power." (Petition at p. 8). The truth or that

[ statement is not ,readily apparent trom the tiling, but it true, we wonder why LILCU has not seen tit to take advantage or this wealth

! ot expertise given the cozens, it not hundreds or consu l tan ts it

l nas retained to cate.

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Citizend cialms no tlnancial interest or ties to LILCO' out expresses a

". . . strong interest in having an adequate emergency plan in place for any possible event which could aftect them or their families." (Petition at p. 9).

Citizens also desires a reliable energy source tor Long Island and abserts that no other party can adequately protect its pro-nuclear interests, since its members live in the community. (Petition at pp. 9, 10).

Citizens' general goals are no ditterent than those advanced oy the . Long Island population at large, although people differ as .

to how those goals can best be achieved. Furthermore, LILCO has treguently asserted its keen interest in the goals recited by Citizens since a number or LILCO employees also live in the vicinity or Shorenam. Given LILCO's stake in the outcome of this proceeding,' Citizens can rest assured that its interests will be well representec.

Finally, Soutnampton believes that Citizens' participation would unnecessarily Droaden and delay the proceeding (as evidenced by the- tive, general and/or inaamissable contentions it has tiled to date). The evidence and testimony which Citizens may offer is likely to be repetitive ot the case that LILCO will present anc as

• Tne tact that some memoers or Citizens are employed by Brocknaven National La bo ra to r i e s , which nas a role in LILCO's ott-site plan, raises questions as to whose interest Citizens would be regresenting, it admitted, and on whose benait its members might testity, it they were inclined ano pe rmi t. tec , to Oc so.

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already mentioned, L1LCO can avail itselt or Citizens' expertise 11 it CnooSes.

IV. Conclusion Citizens claims tnat it has no other means by whicn it can protect its interests, particularly its interest in litigating the outcome ot the Shoreham proceedings it its disagrees with it.

(Petition at p. 11, tn). However, Citizens' future interest in tiling lawsuits does not justify giving it standing at this late date. Citizens' substantive interests can be adequately protected .

through limited appearance statements wnich the Board has specifically invited.

For tne toregoing reasons, the Petition ot Citizens should be denied in all respects.

Dated: Riverhead, New York June 29, 1983 Twomey, Latham & Shea Special Counsel to the Town of Southampton by .

St(hhen b. La tham 33 West Secono street Post Ottice box 398 Riverhead, New York 11901 (516) 727-2180 I

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A. Eertram Brill. M.D., is a radiation physician and an internationally recognized authority on the treatment of radiation illness and on the health effects of radiation. Dr. Brill testifies that:

"Past experiences indicates that should a radiation accident occur at a nuclear power plant such as Shoreham, it would be highly unlikely to involve anyone other than workers at the plant. In highly unlikely situations, corresponding to the

" severe" and " worst" cases postulated in County Plan, it may be postulated that sme of the nearby public could be subjected to radioactive contanination. However, should this occur simple instructions (remove contaminated clothing and shower) would mitigate the doses. Medical observation and possibly treatment would be required for any persons receiving accunulated doses in excess of the 200-300 Ren range which would be expected only in the most severe accident. However, postponement of medical attention for 3 or 4 days after exposure would not increase the risk in these persons. 'Ihe medical resources in Suffolk County are adequate to cope with the number affected, as postulated in the County studies. Probably, the greatest stress on emergency medical facilities would cme frce traffic accidents that might occur, should a needless panic reaction occur."

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John R. Stehn, Ph.D, is a retired nuclear physicist and nuclear engineer.

He is currently working on enviromental assesments of electric power genera-tion. Dr. Stehn testifies that:

"The latest county plan is too elaborate, note expensive and less effective than the earlier plan developd jointly by suffolk County and LIIH). %e choice of a 20-mile EPZ will be unwieldy to maintain in a state of readiness, will cmplicate proper emergency response nearest to the plant if ever needed, and represents an unjustified extra expense to the citizens."

Joseoh P. Indusi, Ph.D, works professionally on nuclear safeguards analysis and evaluatron. Dr. Indusi testifies that:

"The studies made by the expert consultants retained by the County confirm that a 10-mile EPZ provides adequate public protection for the most likely accidents, classed as unusual and severe (and the odds against these occurring are respectively 1 in 10,000 and 1 in 100,000 per year). Only in the case of the " worst" postulated accident (with odds of 1 in 1,000,000,000) would there be a need for protective actions in the region outside the lO-m.11e EPZ. It seems ,

a shame to expend such large resources to protect against such improbable events when the same resources could be better employed in improved County services."

Vance L. Sailor, Ph.D, is a nuclear physicist who has worked on nuclear safety and cost / benefit analysis. Dr. Sailor testifies that:

"The emergency plan is similar to an insurance policy for which a premium must be paid. We county proposed 20-mile EPZ includes four times the area of the NRC required 10-mile EPZ. We cost of imple-menting and maintaining the 20-mile plan will be at least four tines greater than for a 10-mile EPZ. W e extra millions of dollars that must be spent each year for the large plan could better be invested in other public protection activities such as inproved highway safety. I strongly urge that the Legislature restrict the plan to a 10-mile zone."

Anthony Painberg, Ph.D, is a physicist working on nuclear safeguards planning and analysis. Dr. Painberg's testimony addresses the question of the feasibility of large-scale evacuations:

"Each year there are several large scale non-nuclear related evacua-tions in the United States. Mass evacuations have been ccomon.

With one exception (TMI) they have had causes other than a nuclear power plant accident; they have frequently been carried out under highly dangerous circumstances (e.g., proximity to a fire dispersing highly toxic chemicals); and they have been extrmely successful, usually without the benefit of elaborate emergency plans. Based on examples (given in the detailed testimony) it is absolutely clear that an evacuatica around the Shoreham plant is possible."

7 Energy Educ tion Expon:nts Inc.

3 R O. Box 32 Potchogue , N.Y.11772 Public Affairs Division 420 East 51st Street Na o , 10022 January 19, 1983 SUFKLK EUNTY LH;ISLNTIVES HEARIES CN WE RADIOTTGICAL D453rm NP PLAN HIm1LIQTPS OP 'IFRPIM0t# BY P3 SCIEITTISTS Testimony for the Legislative Hearings on the Radiological Emergency Response Plan has been prepared by seven experienced scientists who are mem-bers of Energy Education Exponents (E3) and who live in cmmunities surround-ing the Shoreham Nuclear Power Station.

Each of them work professionally in a subject area relating to emergency planning and response, or to nuclear safety.

Andrew P. Hull is a Certified Health Physicist. He is a menter of a federal radiological assistance progtm team (EAP team) and served as Gief of Evalua-tion of off-site radiation doses at Wree Mile Island. Mr. Hull testifies that:

"The NRC requirment for a 10-mile emergency planning zone (EPZ) is based on out-dated estimates of the total radioactivity that might be released in the event of a core-melt accident accmpanied by containment failure. Newer data obtained in recent years, including the actual releases at WI indicate that the NRC requirements are based on extr eely conservative assumptions, hese requirements will probably be. relaxed in the future. S us, emergency planning for a zone larger in area than the NRC required 10-mile EPZ is not justified by current scientific data."

William Robert Casev is a Certified Health Physicist. He specializes in emergency planning and responses, and served as Captain of the federal PAP team that measured off-site radiation levels during the m I accident.

Mr. Casey testifies,that:

" Emergency planning is a useful element in nuclear power plant safety, primarily to avoid public confusion and panic in the event of plant accidenta. Evacuation planning is only one aspect of emergency planning and in fact the most unlikely elment of the plan ever to be utilized. Care should be taken to avoid over-enqtasizing the importance of evaucation planning. An mergency plan provides prirrarily for the organization, conmunications and assignment of responsibilities needed to respond to an unexpected mergency at the plant. Such a workable emergency plan is an achievable goal for ~

Suffolk County." s'-

Appendix A

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.:;) m e, UNITEU STATES OF AM E k l .M NUCLEAR REGULATokY COMMIbSION g ggg3 7 i F,w.!- JL- ,

s .u dEFORE THE ATOMIC SAFETY AND LICENSING BOARh,a C"j f

• s c y ,2 ,

In the Matter ot )

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(} . .

LONG ISLAND LIGttTING COMPANY ) Doc ket No. 50-322

) (Emergency Planning)

(Shoreham Nuclear Power Station,)

Unit 1) )

CERTIFICATE OF SERVICE I hereby certity that copies of " RESPONSE OF TOWN OF SOUTHAMPTON TO CITIZENS FOR AN ORDERLY ENERGY POLIC Y , INC. PETITION TO INTERVENE", dated June 29, 1983, submitted by the Town or Southampton, in the above captioned proceeding, have been served .

on the following, by deposit in the United States mail, first class, this 29th day of June, 1983.

James A. Laurenson, Chairman Edward M. Barrett, Esq.

Atomic Safety & Licensing Board Ge ne ral Counsel U.S. Nuclear Regulatory Comm. Long Island Lighting Co .

Washington, D.C. 20555 250 Old Country Road Mineola, N.Y. 11501 Dr. Jerry R. Kline Atomic Safety & Licensing Board Herbert H. Brown U.S. Nuclear Regulatory Comm. Law ren ce Coe La nphe r Washington, D.C. 20SS5 Karla J. Le tsche Kirkpatrick, Loc k n a rt , Hill, Dr. M. Stanley Livingston Christopher & Phillips 100S Calle Largo 1900 M Street, N.W.

Sante Fe, New Mexico 87501 Bth Floor Washington, D.C. 20036 W. Taylor Reveley, III, Esq.

Hunton & Williams Stewart M. Glass, Esq.

707 East Main Street Regional Counsel P.O. Box 1535 - FEMA Richmond, Va. 23212 26 Federal Plaza New York, N.Y. 10278 Jettrey Cohen, Esq.

Deputy Commissioner & Counsel Howarc L. Blau, Esq.

Ne w York State Energy Ottice 217 Newbridge Road Agency uuilding 2 Hicksville, N.Y. 11801 Empire State Plaza Albany, N.Y. 12223

$ 4 ,

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-g-Dav id J. Gilmartin, Esq. Brian "cCattrey Attn: Patricia Dempse y , Esq. Charles Daverio County Attorney Long Island Lig h t ing Company Suttolk Co. De p t . of Law 175 East 010 Country Road Veterans Memorial Hignway nicksville, N.Y. 11801 nauppauge, N.Y. 11787 Energy Research Group, Inc.

MHB Technical Associates 4 00-1 Tot ten Pond Roac

'1723 Hamilton Ave , Suite K Waltham, Mass. 02154 San Jose, Ca. 95125 Bernard M. Bordenick, Esq.

Nora Breces Counsel for NRC Statt SOC Coordinator U.S. Nuclear Regulatory Comm.

195 East Main Street Washington, D.C. 20555 Smithtown, N.Y. 11787 Matthew J. Kelley, Esq.

Da n ie l F . Brown, Esq. State ot New York .

Atomic Safety and Depa r tment of Public Service Licensing Board Panel Three Empire State Plaza U.S. Nuclear Regulatory Comm. Albany, N.Y. 12223 Washington, D.C. 20555 Samuel J. Chilk, Secretary James Doug he r ty , Esq. Docketing and Service Station 3045 Porter Street U.S. Nuclear Regulatory Comm.

Washington, D.C. 20008 Washington, D.C. 20555 Atomic Safety and Licensing Ralph Shapiro, Esq.

Appeal Board Panel Cammer and Shapiro, P.C.

U.S. Nuclear Regulatory Comm. 9 Cast 40th Street Washington, D.C. 20555 New York, N.Y. 10016 Dated: June 29, 1983

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c . m S tepn en(J3. Latham l>

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