ML20081C816
| ML20081C816 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 03/12/1984 |
| From: | Mcmurray C KIRKPATRICK & LOCKHART, SUFFOLK COUNTY, NY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| OL-3, NUDOCS 8403150026 | |
| Download: ML20081C816 (29) | |
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8 DOCMETED U%RC i
UNITED STATES OF AMERICA i NUCLEAR REGULATORY COMMISSION T4 I"" 14 f,ig :10 .
Berore the Atomic Safety ano Licensing Boaro ,
)
In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shorenam Nuclear Power Station, )
Unit 1) )
)
SUFFOLK COUNTY'S RESPONSE TO LILCO'S AND THE NRC STAFF'S OBJECTIONS TO SUFFOLK COUNTY'S MOTION FOR LEAVE TO FILE MODIFIED PUBLIC EDUCATION BROCHURE CONTENTIONS On February 14, 1984 LILCO delivered Revision 3 ot its public education brochure thereinafter " Revision 3" or " bro-chure"] to counsel for Suffolk County. The County's review of tnat document revealed tnat LILCO had suostantially amenced
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several portions of its public education brochure. Consequent-ly, the County modified Contentions 16 and 18 to conform to the revised language in Revision 3 and submitted those modifica-tions to the Board on February '24, 1984.1/ LILCO answered the
-1/ Motion For Leave To Pile Modified Contentions 16 ano 18 Concerning the LILCO Public Education Brochure ( Febr uary 24, 1984), [ hereinafter " Motion").
8403150026 840312 PDR ADOCK 05000322 clh
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County's motion on March 1, 1984, objecting in one form or l i
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another to all of tne County's modifications of Contentions 16 l
and 16.2/ The NRC Statf filed its response on March 7, 1964, objecting to some but not all of the proposed modifications.3/
i For the reasons set forth below, LILCO's Answer and the Scaff's Response have failed to present any significant reasons wny tne
) County's proposed modifications to Contentions 16 and 18 snould be denied by this Board.
Botn LILCO and the NRC Staff concede the timeliness of tne County's proposed modifications and concede that the County's proposed modifications meet the standards of 10 CFR Section 2.714 and the Catawba test for late-filed contentions. (See l LILCO Answer at 2; Staff Response at 1-2).1/ Despid'e LILCO's -
concession, it nonetheless spends three pages of its Answer
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commenting upon and taking issua witn the County's discussion 2/ LILCO's Answer to Suffolk County's Motion To File Moditied Public Education Brochure Contentions and Objections To Those Contentions (March 1, 1984) [hereinarter "LILCO Answer").
3/ NRC Staff Response To Suffolk County Motion For Leave To File Modified Contentions 16 and 18 Concerning The Public
! Information Brochure (March 7, 1984) [ hereinafter " Staff i
Response"].
4/. LILCO does raise a timeliness-related objection to pro-posed subpart N of Contention 16, which is discussed below.
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1 in its Motion of how the Catawba standards have been met.
i (LILCO Answer at 2-4). In light of its concession that the standards for late filed contentions have been satistied, tne verbiage contained on pages 2-4 of LILCO's Answer, prior to its
- "de minimis" argument, is immaterial and irrelevant, and shoulo be disregarded.5/
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5/ The County also notes its objection to the numerous baseless and inflammatory characterizations of County actions and descriptions of alleged County motives that are contained in the LILCO Answer (e.g., the County's
" peculiar blind;.ess," p. 4; the County's unwillingness to spend its time and resources on planning, p. 4; "the County wishes to waste everyone's time," p.3; the County's interest "is only in delay," p. 11; "the County . . . is aevocating measures that it believes would tnreaten the public health and safety," p. 13). As it has every other time LILCO has included similar allegations in its fil-ings, the County declines to respond to such statements because they are inappropriate and immaterial. No legiti-mate purpose is served by such irrelevant observations or opinions of counsel concernfog alleged motives. Tnere are more than enough relevant and material issues in dispute in this proceeding to keep the parties busy addressing tne j matters that are pertinent to and proper for the Boara's consideration. In the County's view, the filings sub-mitted to this Board should not degenerate into the realm of name-calling or personal attacks, and it hereby re-quests that the Board prohibit the inclusion of such mat-ters in future filings.
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Discussion A. The County Has Raised Substantial and Proper Issues Relating To the Accuracy, Completeness and Effectiveness Of LILCO's Brochure LILCO's Answer first makes a general objection to all the County's proposed modifications based on LILCO's characteriza-tion of the concerns raised by tne County as trifling ano its assertion that " contentions raising niggling complaints about a sentence here or a word tnere should be denied as de minimis."
(LILCO Answer at 6). The Staff's Response does not rcise this objection.
First, this LILCO objection has already been made by LILCO with respect to the subpar ts of Contention 16 when tney were originally submitted in July 1983, and it was ignored by the Board. (See LILCO's Objections to Intervenors' Revised Emer-gency Planning Contentions, dated August 2, 1983, at 16; Spe-cial Prehearing Conference Order, dated August 19, 1983.) In its August Objections, LILCO asserted its view that to litigate the details of its brochure would not be the best use of the Board's resources, just as LILCO asserts in the LILCO Answer that ene process of determining whether portions of the LILCO brochure are misleading "would be a waste of the board's time."
(LILCO Answer at 5). This LILCO objection should again be
re3ected because it has no validity and seeks to reargue Board rulings The issues that LILCO brands as "de minimus" relate to substantial inaccuracies, misrepresentations or omissions in LILCO's brochure which are specifically identifieo in the con-tentions. Moreover, the allegations concerning the specitic identified portions of LILCO's brochure are tnat they render the brochure false, misleading, incomplete or not credible, re-sulting in non-compliance with the regulatory requirements 2 cited in the contention and preamble. These are clearly proper subjects for inquiry by this Board, as it recognized in its August ruling on the original version of the public education contentions.6/ Indeed, LILCO concedes (LILCO Answer at 5) tnat Boards in other cases have reviewed the accuracy and adequacy of the contents of public education brochures. See, e.g.,
Lousiana Power and Light Co. (Waterford Steam Electric Station, Unit 3), LBP-83-27, 17 NRC 949 (1983); Consumers Power Co.-(Big Rock Point Plant), LBP-82-60, 16 NRC 540, 544 (1982). LILCO's
-6/ Although the Board did deny admission of some subparts of Contention 16 as originally submitted, those rulings were based on findings that the subparts were redundant to other contentions or lacked basis. None of the Board's previous rulings were based on a finding that issues were "ce minimus" or that their litigation would be a waste of tne Board's time.
argument ignores not only existing case law, but also the prior rulings of tnis Coard.
The purpose of the proposed modifications is to bring con-tentions 16 and 18 up to date so thz' they address the latest version of LILCO's brochure. As long as LILCO has the right to revise its brochure, the County clearly is entitled to review such revisions and, if necessary, contest their accuracy.2/
That is what tne County has done. LILCO's characterization of the County's concerns as " niggling" or "de minimus" does not constitute a proper objection to the admissibility of the pro-posed modifications. Rather, LILCO's objection really goes to the merits of the proposed contentions. It is settled NRC law, however, that an objection based upon the merits of a conten-tion is not proper when considering the admissibility of the ;
contention. See, Special Prehearing Conference Order at 3; see also, Houston Lighting and Power Company ( Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 NRC 542, 551 (1980);
Mississippi Power and Light Company (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 AEC 423, 426 (1973).
LILCO's "de minimus" argument should be rejected.
7/ As a result of its review of Revision 3, the County has also withdrawn certain subparts of Contention 16.
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B. Contention 16.J Subpart J of Contention 16, as modified, states that LILCO's brochure fails to describe the radio stations participating in the EBS system. The NRC Staff does not object to this subpart. LILCO appa:ently objects to the proposed mod-itication, but its objection appears to be based on a misunder-standing or misreading of the subpart as modified.
LILCO appears confused by the use of the word " describe" in the proposed modification to Subpart 16.J. LILCO Answer at
- 7. To clear up any confusion that may exist, the use of the word " describe" is not intended to add any new issues to subpart J or to mean or suggest that LILCO must provide in its brochure the characteristics (such as broadcast range or power output) of every station through which LILCO hopes to broadcast EBS messages. Rather, the only intent of the modification was to reflect the deletion in Revision 3 of the brochure of the 3dentification of any EBS participants. The earlier versions of the brochure, including the one upon which the original subpart J was based, did identify WALK, but no other EBS par-ticipants. Thus, the intent of modified subpart J is identical to that of the original Contention 16.J; it raises LILCO's failure to identify the radio stations wnich are participants l
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in the EBS System. Since originial Contention 16.J was l
previously ruled admissible by the Board, a timely revision which does not alter the intent of tne contention is certainly admissible as well.
LILCO also asserts that if the subpart is intended to refer to the identification or listing of the EBS stations, "there is no basis for the contention." (LILCO Answer at 7).
LILCO provides no explanation for its assertion that the con-tention calling for identification of EBS stations lacks basis.
Moreover, this LILCO objection ignores the fact that Contention 16.J, calling for such identification, already has been admit-ted by this Board. The subpart has now merely been narrowed to eliminate certain elements that LILCO has included in its re-vised brochure. Since there was sufficient basis to admit Con-tention 16.J in its original broader form, then sufficient basis certainly exists for a modification which produces a more focused and narrower version of the original contention. Thus, LILCO's assertion that modified Subpart 16.J has no basis is without merit.
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C. Contention 16.K Subpart K of Contention 16 questions the accuracy of LILCO's assertion that evacuees will find it easy to get to re-location centers by traveling along LILCO's recommended routes, and alleges that such a mischaracterization of the facts ren-cers the brochure misleading and not credible. The NRC Staff does not object to Subpar t 16.K. LILCO makes several asser-tions which it apparently considers objections to tne admission of the subpart.
LILCO first argues that the proposed subpart " lacks spe-cificity and basis" because it does not state "wny people will not f1nd it easy to evacuate." First, this argument ignores the fact that the factual assertion in Subpart K comprises one of the bases for tne allegation in Contention 16 that LlLCO's brochure fails to comply with regulations. There is no re-quirement, nor has LiLCO cited one, that intervenors state in their contentions the basis for the factual assertions that form the basis of contentions or that they plead their evidence in their contentions. This LILCO argument mischaracterizes tne basis requirement and previously has been rejected by NRC adju-dicatory boards. See, e.g. Allens Creek, supra; Grand Gulf, supra.
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Second, the County is at a loss to understana how LILCO i i
can claim ignorance of tne specific reasons for tne County's view that the brochure is inaccurate in stating tnat evacuation j will be easy. During the course of tnis proceeding the County has submitted hundreds of pages of testimony addressing the specific issue of wny it will not be " easy" for evacuees to travel out of the EPZ in a timely manner. (See generally, the County's Testimony on Contenticas 23 and 65). In light of tne detailed testimony already submitted, there can be no doubt about why the County believes LILCO's statement in its brochure is inaccurate. To require the County to restate those reasons in the contention would be to raise form over substance.
LILCO next argues that " assuming that the County thinks that the reason evacuation will not be ' easy' is traffic con-gestion," Subpart K is " simply an attempt to raise a traffic issue in tne guise of a public education brochure issue."
(LILCO Answer at 8). According to LILCO's logic, the County may not contest a statement made in LILCO's public education brochure if that statement is related to another issue in the proceeding. LILCO's logic is flawed for several reasons.
First, tne County has stated and the Board and parties have recognized in the course of grouping and scheduling issues for hearing, that the emergency planning issues in this proceeding i
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are inherently interrelated. Thus, it is not possible to separate the issues into neat discrete pieces with no reterence to other issues or contentions.8/ LILCO's argument, nowever, ignores one important fact: the issues raised in Subpart K of Contention 16 and Contention 65, while "related," are nonetheless very different. Contention 16 deals with whetner LILCO's brochure meets the regulatory requirements relating to public education materials; Contention 65 deals with wnether the evacuation time estimates in LILCO's Plan are accurate or
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reliable. The County recognizes that the Board's decision on the merits of Contention 16.K may rest, at least in part, on its findings on Contention 65. The mere fact that testimony has been submitted relating to the scope and extent of traf fic congestion auring an evacuation does r.ot mean that the contents of LILCO's brochure is an improper subject for a contention.
Clearly, if the testimony submitted on Subpart K is improperly repetitive of that submitted on Contention 65, the Board can deal with that problem pursuant to its power under 10 CFR 8/ If the new language in Revision 3 of the brochure which necessitated the submission of proposed Subpart K had been included in the original version of the brochure, and the County had had an opportunity to modify Contention 16.K prior to litigation of Contention 65, it would have.been easy to have combined the testimony on the two contentions for purposes of the hearing.
l Section 2.743(c) to reject repetitious evidence. It would clearly be improper, however, for the Board to deny admission to the proposed modification based on LILCO's speculation about wnat LILCO thinks may happen. This Board should deal with facts and the current facts demonstrate that the County has presented perfectly proper contentions for litigation.
LILCO next argues that the proposed Subpart K is inconsis-tent. That is, LILCO asserts that in the past the County has argued that people will not follow recommended routes while in Subpart K, in LILCO's view, the County supposedly " challenges a statement in the brochure designed to get them to do exactly that." (LILCO Answer at 8-9). LILCO's argument nas no legal basis and seriously misrepresents the County's position in this contention. First, alleged " inconsistency" is not a proper objection to the admissibility of a contention under 10 CFR Section 2.714(b). LILCO provides no legal authority to support its argument because no such authority exists. It is well established that parties are permitted to plead in the alterna-tive.
Second, there is no inconsistency in tne County's posi-tion. The County has consistently taken the position that peo-ple will not follow LILCO's recommended routes, that LILCO's l i
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efforts to encourage sucn behavior are futile, and that its assumption that people will follow the routes is unrealistic and without basis. Nothing in Subpart K is inconsistent with any of those views. Subpart K alleges that the assertion in LILCO's brochure that reaching a relocation center will be
" easy" if recommended routes are followed is not true, and that the inclusion of such a statement in the brochure renders it misleading and not credible. The issues are different, and in no way inconsistent.
Furthermore, contrary to LILCO's suggestion, the County has never suggested "that LILCO should not be allowed" to encourage people to follow recommended routes. The County's position is that if LILCO is going to attempt, however fu-tilely, to encourage people to follow its recommended routes, it should not be allowed to do so at the expense of the truth.
If LILCO believes that it may seek to entice the public to be-have in a manner LILCO deems desirable, by means of representa-tions in its brochure, regardless of the accuracy of those representations, LILCO is wrong. Such manipulation of the pub-lic, with its apparent disregard for accuracy, would be improp-er, contrary to NRC regulations, and unfair to the public.- A brochure must be accurate. Big Rock Point, supra, at 544.
Where a brochure is inaccurate and that inaccuracy becomes
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known to the public, the public may not accept the brochure or consider it credible. Id. In the County's view, the statement by LILCO that evacuation will be " easy" is likely to be per-ceived by the public as not credible, particularly in light of the fact that in LILCO's own survey of the Long Island popula-tion over 75 percent of the surveyed population responded tnat evacuation would be "very difficult." Another 18 percent stat-ed it would be " moderately" cifficult.9/
Finally, LILCO asserts that Subpart 16.K is witnout basis and thcc, at least in LILCO's view, the " record in [the Conten-tion 65] litigation snows that evacuation can be accomplished promptly . . . . The County gives no basis for believing oth-erwise." (LILCO Answer at 9). As noted above, the basis for the County's belief is well-known to LILCO and is found in the County's testimony on Contentions 23 and 65. Those hundreds of pages, supported by 12 witnesses, support the County's conten-tion that timely evacuation will be far frem " easy" and will, in fact, be impossible. Furthermore, while LILCO may conclude, however erroneously, that the record weighs in its favor, its conclusions are meaningless since the Board, and not LILCO, is 9/ Status Report Cn Public Response To Emergency Planning Ef-forts, Prepared for LILCO by Yankelovich, Skelly.and knite, Inc. (July 1983) and tab runs from that survey.
the finder of fact in this proceeding. LILCO's so-called
" objections" to proposed Subpart K fail to address the standards for admissibility of a contention, and are without foundation.
D. Contention 16.L In proposed Subpart L of Contention 16, the County contends tnat the statement in LILCO's brochure that its recom-mended routes will be the " safest and fastest way out of tne emergency planning area" is inaccurate and renders the brochure not credible. LILCO first objects to this contention on grounds of lack of specificity and basis. (LILCO Answer at 10). However, this objection should be rejected for the reasons discussed above with respect to the ~icentical LlLCO ob]ection to proposed Subpart K.
Furtnermore, contrary to the assertions of LILCO and the NRC Staff, proposed subpart L is not "an effort to relitigate traffic issues." (LILCO Answer at 10, Staff Response at 2-3).
As with Subpart K, the fact that the issue raised in Contention 16.L has some overlap with that raised in Contention 65 does i
not make Contention 16.L inadmissible. The point of Contention-16.L~is that LILCO's brochure is inaccurate. LILCO's brochure, ano whether it meets the regulatory requirements related to public education materials, was not litigated undet Contention
- 65. Again, the County notes that wnile the Bcard's findings on Contention 65 may also relate to its findings in Contention 16, that does not render Subpart 16.L inadmissible. Furthermore, the Board has authority to preclude repetitious testimony.
Therefore, the LILCO and Staf f objections do not properly contest the admissibility of Subpart L but rather raise issues regarding the manner of proof. Failing to raise any proper ad-missibility objection, Subpart L should be admitted.
E. Contention 16.M LILCO and the NRC Staff object to proposed Subpart M of Contention 16. That subpart alleges that the statement in LILCO's brochure that the public should follow pathfinder signs which ate located on every major road in the EPZ is false, will-be recognized as false by the public, and therefore renders the brochure not credible, and not in compliance with the regula-tions.
The apparent basis for LILCO's objection is that it intends to install the signs on major roads.at some future time, and that, therefore, at some future time the statement in the brochure will no longer be false. LILCO argues that false statements in its brochure are acceptable'because " emergency.
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1 planning findings are predictive." (LILCO Answer at 10). The NRC Ltaff's objection is based on its assertion that Contention 3 addresses the issue of LILCO's authority to install road signs and that the County offers no ceparate basis for subpart M of Contention 16. Both objections ate without merit. Wheth-er findings are " predictions" is not the issue. The issue raised in Contention 16.M is whether LILCO's brochure as sub-mitted to the Board in this proceeding is accurate and credi-ble; clearly, it is not. The referenced signs are not " located on every major road" in the EPZ, nor do the signs even exist.
See Tr. 2618.10/ Furthermore, the issue raised in Contention 3 is LILCO's authority to install signs. Contention 3 does not deal with the contents, ef fectiveness or accuracy of LILCO's brochure, is the focus of Contention 16.M. Tnerefore the objections of LILCO and the Staff have no basis and Subpart M should be admitted.
10/ LILCO's assertion that the County "does not even attempt to tell us why it thinks the signs will not be put up" is inapposite. Although LILCO consistently attempts to base its arguments in this proceeding on its own predictions or wishful thinking about future events or " intended" plan I revisions, the County's position and its contentions are l based on facts existing now.
F. Contention 16.N In Subpart N of Contention 16, the County alleges that i
LILCO's numerous references in its brochure to LILCO's Local Emergency Response Organization (LERO) and the nature and contents of such references, render the brochure false, mis-leading, and not credible.
First, LILCO mischaracterizes Subpart N by asserting that "Suffolk County takes issue with the name 'LERO'" and that Subpart N includes "two conflicting complaints." Both asser-tions are wrong. The County has no objection to "the name LERO" nor does Subpart N assert such an objection. Rather, Subpart N takes issue with the way in which the LILCO brochure refers to LERO, and the effect of such references on the com-pleteness, accuracy, and credibility of the brochure. Further-more, Subpart N is not internally inconsistent. It sets forth two distinct but possible results of LILCO's failure to identi-fy LERO accurately or completely: members of the public either (1) will not know enough about LERO to be willing to believe all the representations LILCO makes about it, or (2) till be misled by the representations into believing, incorrectly, that LERO is a legitimate and governmentally authorized body, rather than a unilateral LILCO creation designed to replace legitimate
i governmental authorities. There is notning inconsistent about the alternate results alleged in Subpart N.
LILCO objects that Subpart N is untimely because Suffolk County "has been aware [of the name LERO] for many months."ll/
(LILCO Answer at 12). However, the County's awareness of the name "LERC"'is irrelevant to Subpart N. -Other than one oblique reference which was identified and discussed in the County's Motion at 6-7, the term "LERO" and " Local Emergency Response Organization" were not used in the version of the brochure upon which the original contentions were based. Thus, the County could not have addressed the issue of how LILCO referred to LERO in its brochure any earlier unless it had submitted a con-tention stating:
If LILCO ever decides to refer to LERO in its brochure it should note the affilia-tion, source of authority, legitimacy, manpower, training, or competence of LERO and make sure it does not leave tne impression tnat LERO is a government agen-cy.
Sucn a contention, of course, would have been' absurd because the issue would not have been ripe. The issue only became ripe when L1LCO decided to use the terms "LERO" and ' Local Emergency 11/ As noted above, the NRC Staff does not object to the timeliness of this contention.
Response Organizations" as it did in Revision 3 of its brochure.
LILCO next argues that Subpart N should not be admitted because LILCO believes it is similar to two other contentions which the Board previously struck (LILCO Answer at 12). Tne NRC Staff claims tnat Contention 16.N is similar to one of those two contentions. (NRC Response at 3-4). The Board's prior rulings referencea by LILCO and the Staff are irrelevant to Subpart N. The first stricken contention cited by LILCO (but not the NRC Staff) is proposed modified Contention 15.E.1, which asserted that the use of the word "LERO" in LILCO's EBS messages was inappropriate because the EBS messages did not explain who LERO was or who comprised it. The Board denied ad-mission of Contention 15.E.1, but not on any ground relevant to Su' par t N. The Board ruled that the proposed modification was an attempt to include a new issue in Contention 15 and that the late-filed contention standards had not been met.12/ That ruling simply has no applicability to proposed Subpart 16.N.
The issue in contention 16 is and always has been the accuracy and completeness of the contents of LILCO's brochure, and 12/ Memorandum and Order Ruling On Intervenors' Proposed Emer-gency Planning Contentions Modified To Reflect Revision 3 of the LILCO Plan at 8 (February 3, 1984).
Subpart N clearly falls within the scope of that issue.
Moreover, as demonstrated in the County's Motion and discussed above, Contention 16.N meets the requirements of 10 CFR Section I
2.714 and the Catawba test for late-filed contentions. There-l fore, LILCO's reference to the Board's ruling on proposed l
modified Contention 15.E.1 is inapposite.
Second, LILCO and the NRC Staff allege that Subpart 16.N is similar to original Subpart F of Contention 16. That Subpart alleged that LILCO's brochure did not inform the public that LERO will be issuing all emergency information and protec-tive action recommendations. The Board denied Contention 16.F in its Special Prehearing Conference Order of August 19, 1983 (at 7). The Board ruled that no basis was asserted for the in-tervenors' suggestion that that type of information should be included in a brochure. That ruling is not relevant here, how-ever, because the issue is different. The issue raised in Subpart F was that in the original version of the brochure LILCO had nct identified at all the organization wnich would respond to a radiological emergency at Shoreham, and Subpart F noted that the organization that should be identifi d was LILCO's LERO organization. In Revision 3 of the brochure, LILCO does refer to LERO. The issue raised in Contention 16.N is that the nature of those newly added references to LERO 9
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renders the brochure incomplete, inaccurate and not credible.
And, Subpart N explains why the references to LERO are incom-plete and inaccurate. Clearly, the Board's ruling on the lack of basis for Subpart F is not relevant to proposed Subpart N.
LILCO next argues that there is no legal requirement that LERO be described in the brocnure (LILCO Answer at 12-13).
Yet, LILCO's complaint in this regard is nothing more than a naked assertion, without explanation, legal argument or legal citation. The preambles to all of the Subparts of Contention 16, including Subpart N, contain citations to regulations to the applicable regulations and thus meet a prima facie test of stating a regulatory basis. LILCO's unsupported objection on g rounds of lack of legal authority is clearly insuf ficient - to justify a ruling that the contention is inadmissible.
In addition, LILCO's "no legal requirement argument is not a proper admissibility objection. If LILCO believes it can or does comply with the regulatory standards cited in Contention 16 with its current version of the brochure, it can so state in testimony or in a summary disposition motion. Contentions'neec only meet the requirements in 10 CFR Section 2.714(b) of_ basis-and specificity to be admissible. As discussed _above, such'an attempt to argue the merits of the contention is improper when-considering the admissibility of a contention.
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LILCO also suggests (LILCO Answer at 13) that Subpart U should be denied because it is somehow inconsistent. First, as discussed above, LILCO's " inconsistency" argument is not a valid objection to the admissibility of contentions. Further-more, contrary to LILCO's assertion, the County's position is fully consistent concerning the likely public reaction to LILCO's attempt to command, control and implement the offsite ,
response to a Shoreham accident. The County believes that peo-ple will not listen to LILCO not only because LILCO is not a governmental agency, but also because LILCO is not considered credible by the public. This does not mean, however, that LILCO can try to fool the public or mislead people into believ-ing that LERO is an organization acting with governmental au-thority by failing to disclose in its brochure what LERO is, or by referring to it in a manner that suggests it is something it is not. Any attempts made by LILCO to influence behavior of the public or to inform them about the response to a shoreham emergency must be on a truthful and accurate basis.
Finally, LILCO asserts that the County has no basis for claiming (1) that the brochure suggests that LERO'is governmen-tally authorized, (2) that people will not know what LERO is, or (3) that without complete information about LERO, people will not believe the brochure. This so-called " objection" is
not a proper admissibility objectiva. The portions of Suopart N with which LILCO takes issue compr.ise the factual assertions which form a portion of the basis for the Contention 16 allega-tion that LILCO's brochure is incomplete, inaccurate, not cred-ible, and in violation of the regulations. Intervenors are under no obligation to plead their- evidence in their conten-tions.. See, e.g., Allens Creek, supra; Pniladelphia Electric Company (Peach Bottom Atomic Power Station, Units 2 and 3),
ALAB 216, 8 AEC 13, 20 (1974); Grand Gulf, supra. LILCO can properly take issue with the County's factual assertions in its testimony. Its disagraement with the bases of the County's contention is not a proper ground for a ruling on admissibili-ty.13/
13/ Moreover, it is surprising that LILCO takes the position that there is no basis for believing that people will not find the brochure credible absent sufficient information about LERO. Indeed, support for this statement can be found in LILCO's own testimony. LILCO's experts have stated that the public's response is determined in part by the perceived reliability and credibility of tne source of the information, and in part by t're completeness of the information (" feeling that one has insufficient infor-mation creates confusion, uncertainty and anxiety,"). ,
Testimony of Matthew C. Cordaro, et. al. On behalf Of Long i Island Lighting Company On Phase II. Emergency Planning Contentions 23, 65.C.2 and 65.F at 26-27, 31 (November 18, 1963).
G. Contention 18 I
Contention 18 states that LILCO's telephone book inserts and EBS messages do not adequately tell the reader or listener what zone he is in. LILCO objects to the addition of the word
" adequately" which, it claims, changes a contention already ad-mitted in this proceeding to one that is " clearly inadmissi-ble." While LILCO cites a lack of basis and specificity, the specific grounds for its objections are unclear. It appears tnat LILCO is taking the position that if LILCO makes any at-f tempt at all to address a County concern, for instance by putting new language into its brochure, the County is forever precluded from claiming that LILCO's attempted remedy is inade-quate. LILCO's logic would make these proceedings an absurdity since LILCO could attempt to remedy, however unsuccessfully, any of the concerns raised in the County's contentions. Clear-ly, whatever actions or plan revisions LILCO proposes to address a concern raised in an admitted contention cannot be used by LILCO to preclude litigation of that contention.
LILCO's objection is therefore without merit.
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Conclusion For the reasons set forth above, the Board should grant Suffolk County's Motion For Leave To File Modified Contentions 16 and 18 Concerning the LILCO Public Education Brochure.
I,
,. Respectfully submitted, Martin Bradley Ashare
< Suffolk County Department of Law Veterans Memorial Highway Hauppauge, New York 11788
/ *
-a. ,
, t' /' . }ly / /'I' i!?, / ,.f,n' t - '
Lawrence Coe Lanpher
! Karla J. Letsche '
i Christopher M. McMurray i KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS 1900 M Street, N.W., Suite 800 Washington, D.C. 20036
, Attorneys for Suffolk County Dated: March 12, 1984 1
4 I
}
l
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-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station, )
Unit 1) )
)
CERTIFICATE OF SERVICE I hereby certify that copies of SUFFOLK COUNTY'S RESPONSE TO LILCO'S AND THE NRC STAFF'S OBJECTIONS TO SUFFOLK COUNTY'S MOTION FOR LEAVE TO FILE MODIFIED PUBLIC EDUCATION BROCHURE CONTENTIONS dated March 12, 1984, have been served to the following this 12th day of March 1984 by U.S. mail, first class, except as otherwise noted.
. James A. Laurenson, Chairman
- Ralph Shapiro, Esq.
- Atomic Safety and Licensing Board Cammer and Shapiro f
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.
Administrative Judge 217 Newbridge Road Atomic Safety and Licensing Board Hicksville, New York 11801 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 W. Taylor Reveley, III, Esq.##
Hunton & Williams P.O. Box 1535 707 East Main Street Mr. Frederick J. Shon
- Richmond, Virginia 23212 Administrative Judge Atomic Safety and Licensing Board Mr. Jay Dunkleberger U.S. Nuclear Regulatory Commission. New York State Energy Office Washington, D.C. 20555 Agency Building 2 Empire State Plaza Edward M._Barrett, Esq. Albany, New York 12223 General Counsel
- Long Island Lighting Company Jaaes B. Dougherty, Esq.
250 Old Country Road 1045 Porter Street, N.W.
Mineola, New York 11501 Washington, D.C. 20008
- - ~
Mr. Brian McCaffrey Stephen B. Latham, Esq.
Long Island Lighting Company Twomey, Latham & Shea Shoreham Nuclear Power Station P.O. Box 398
- P.O. Box 618 33 West Second Street North Country Road Riverhead, New York 11901 Wading River, New York 11792 Ms. Nora Bredes Marc W. Goldsmith Executive Coordinator Energy Research Group, Inc. Shoreham Opponents' Coalition 400-1 Totten Pond Road 195 East Main Street Waltham, Massachusetts 02154 Smithtown, New York 11787 Joel Blau, Esq. MHB Technical Associates 1
New York Public Service Commission 1723 Hamilton Avenue The Governor Nelson A. Rockefeller Suite K Building San Jose, California 95125 Empire State Plaza Albany, New York 12223 Hon. Peter F. Cohalan Suffolk County Executive Martin Bradley Ashare, Esq. H. Lee Dennison Building Suffolk County Attorney Veterans Memorial Highway H. Lee Dennison Building Hauppauge, New York 11788 l Veterans Memorial Highway Hauppauge, New York 11788 Atomic Safety and Licensing Board Atomic Safety and Licensing Panel Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Washington, D.C._ 20555 Commission Washington, D.C. 20555 Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Jonathan D. Feinberg, Esq.
1717 H Street, N.W. Staff Counsel Washington, D.C. 20555 New York State Public Service Commission Bernard M. Bordenick, Esq.* 3 Rockefeller Plaza David A. Repka, Esq. Albany, New York 12223 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Spence Perry, Esq.
Stuart Diamond Associate General Counsel Environment / Energy Writer Federal Emergency Management NEWSDAY Agency Long Island, New York 11747 Washington, D.C. 20472 Stewart M. Glass, Esq.
Regional Counsel Federal Emergency Management -
Agency 26 Federal Plaza, Room 1349 New York, New York 10278
Fabian Palomino, Esq.#
Special Counsel to the Governor Executive Chamber, Room 229 State Capitol Albany, New York 12224 Eleanor L. Frucci, Esq.*
Atomic Safety.and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 l
l
( 1 /. . ,/ Af Y
Christopher M. McMurray ,
KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS 1900 M Street, NW, Suite 800 o Washington, DC 20036 i l
DATE: March 12, 1984
- By Hand
- By Telecopier
- By Federal Express-
-.ma