ML20086T340
| ML20086T340 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 03/01/1984 |
| From: | Christman J LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| OL-3, NUDOCS 8403060265 | |
| Download: ML20086T340 (17) | |
Text
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LILCO, March 1, 1984 00lxgj0
- uwu, UNITED STATES OF AMERICA
'M N' ~
NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In-the Matter of
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LONG' ISLAND LIGHTING COMPANY
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Docket No. 50-322-OL-3
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(Emergency Planning (Shoreham Nuclear Power Station, )
Proceeding)
Unit 1)
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LILCO'S ANSWER TO SUFFOLK COUNTY'S MOTION TO FILE MODIFIED PUBLIC EDUCATION BROCHURE CONTENTIONS AND OBJECTIONS TO THOSE CONTENTIONS Chi February 27, 1984, Suffolk County filed its "Suffolk County Motion For Leave to File Modified Contentions 16 and 18 Concerning the LILCO Public Education Brochure."
The motion contained an attachment entitled " Proposed Emergency Planning Contentions 16 and 18 Modified to Reflect Revision 3 of the Public Education Brochure."
This is LILCO's answer to that pleading.
Timeliness By and large LILCO does not contest Suffolk County's as-sertion that its new brochure contentions meet the 10 CFR
$2.714 tests for late-filed contentions and the Catawba test 1/
1/
Duke Power Co. (Catawba Nuclear Station, Units 1 and 2),
ALAB-687, 16 NRC 460, 469 (1982), three-part test approved in CLI-83-19, 17 NRC 1041, 1045, 1047 (1983).
8403060265 840301 7
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6 of " good cause."2/
To the extent that the contentions really do depend on the contents of the brochure, they could hardly have been submitted before the brochure was provided; indeed, the only question is whether each contention really is tied to the brochure (in the words of the first Catawba test, " wholly dependent upon the content" of the brochure).
Where we feel that a contention is not dependent on the content of the bro-chure, we will say so in our specific objections below; in fact, the only contention for which we believe this is the case is 16.N, which takes issue with the name " Local Emergency Re-sponse Organization."
Otherwise, we do not challenge the time-liness of the new contentions.
This is not to say that we agree with the County's dis-cussion of how it meets the tests of Catawba and 10 CFR S 2.714, and indeed in two respects we find the County's appli-cation of the tests seriously deficient.
First, on page 8 of its pleading the County says that there is no basis for 2/
The County's argument (page 4tof its motion) that these new contentions are merely an " update" of existing contentions, however, is wrong.
An examination of the Attachment to the County's motion shows that almost nothing is left of the origi-nal Contention 16.
Contention 16.A has been withdrawn, B was not admitted by the Board, C was not admitted, D has been with-drawn, part of E was not admitted, F was not admitted, G was not admitted, H has been withdrawn, and I was not admitted; of these, only the first part of E is left unchanged.
Of the re-maining subsections, J has been revised and K, L,
M, and N are entirely new.
Likewise, Contention 18 has been changed by the addition of only a single word (" adequately"), but this com-pletely changes its meaning.
'S 9,
believing that any means other than litigating the contentions in this proceeding will adequately protect the intervenors' in-terests pertaining to the adequacy of LILCO's public informa-tion. program.
This is utter nonsense.
Obviously another means by which the County could protect its interests would be by participating in emergency planning.
It is safe to say that if the County were doing an emergency plan, as it is fully capable of doing, LILCO would be happy to discuss putting anything in the public information brochure that the County wanted.
Short of that, the County might have tried simply to ne-gotiate its concerns with LILCO.
The fact is that LILCO coun-sel wrote to counsel for the county on October 17, 1983, offer-ing to consider changes to the brochure:
While I recognize that you feel your emergency planning contentions are essen-tially nonnegotiable, it does seem to me that in a rew instances the contentions are about minor or controllable things that ought to be resolv&ble without tes-timony'and cross-examination.
A case in point is the public educa-tion brochure.
We can put most anything in the brochure that is reasonable and helpful to emergency planning.
In fact, LILCO feels-it has already revised the brochure to respond to the concerns in your contention.
A copy of the pertinent pages of the revised brochure is at-tached.
It appears to me that these revisions should resolve the contention once and for all, except possibly the part about discussing the effects of high doses of
_4
. radiation.
If you are still not 4~
satisfied on that point, I urge you to propose' language for the brochure that would resolve.your concerns.
The County has never responded to this offer.
'In short, the County's position on the "other available means" test.of 6 2.714 is the result of the peculiar blindness of a party that is willing to spend its time and resources on
' litigating.but not on planning.
There is nothing LILCO can do
'to change this attitude, but we will not stand by silent while
'it is used as a justification for filing late contentions.
-Second, the County argues that admission of the addi-i tional contentions.will not delay the proceeding in any materi-
-al way.
A close look'at the' County's argument (on page 10 of its motion), however, shows that the only basis for this argu-
. ment.the County gives.is that "the Board and the parties have been aware'thit.Intcrvenors' public education concerns will be
. involved in the phase of Group II litigation that will not
' begin until after March 21."
This does not appear.to LILCO to have anything to do with how long it will take to litigate the additional' contentions.
Of course litigating additional con-tentions will take extra time and delay the proceeding.
The
-County does not' argue otherwise~.
5 De Minimis Turning to the admissibility of the contentions on other
. 'than timeliness grounds, LILCO objects to them for several rea-sons.
In the first place, LILCO objects to all the new addi-tions to Contention 16, based on the maxim " lex non curat de minimis" (the law does not concern itself with trifles).
The new parts of Contention 16 ask the Licensing Board to parse particular sentences or phrases of the brochure and decide whether they are-misleading.
This process, we submit, would be a waste of the Board's time and a task not contem-plated by the regulations.
It is true that licensing boards have on occasion reviewed public education brochures in consid-erable detail.
- See, e.g.,
Louisiana Power and Light Co. (Wa-terford 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 (1982). But as a general matter, they have declined to rewrite the brochures and to pick and choose among various shades of meaning.
For example, in the Zimmer case the licensing board re-fused to order the brochure changed:
We agree that the availability of more information on radiation hazards would be helpful.
However, we do not im-pose a license condition with respect to this matter.
Cincinnati Gas & Electric Co. (Wm. H.
Zimmer Nuclear Power Sta-tion, Unit 1), LBP-82-48, 15 NRC 1549, 1574 (1982), aff'd with certain modifications, ALAB-727, 17 NRC 760 (1983).
Similarly, in Three Mile Island 1, the Appeal Board rejected certain i
. criticisms of the brochure, taking the sensible approach that educational material must be judged in its entirety:
The Aamodts also argue that several specific instances of lack of candor re-main in the new pamphlet to render it in-adequate.
Again, we must disagree.
We doubt that unanimous agreement on every sentence of every brochure could ever be obtained.
Such agreement is not re-quired.
Educational material must be judged in its entirety.
We have examined the revised brochure and, in our view, it is fully adequate.
-Metropolitan Edison Co. (Three Mile Island Nuclear Station,
-Unit No. 1), ALAB-697, 16 NRC 1265, 1274 (1982) (footnotes omitted).
The approach suggested by the above cases makes sense in light of the purpose of the brochure.
As the Waterford licens-ing board pointed out, the most important informational func-tion of the public education brochure is "to prepare people to turn on.their radio and television stations upon the activation of the sirens."
Louisiana Power and Light Co. (Waterford Steam Electric Station, Unit 3), LBP-83-27, 17 NRC 949, 960 (1983).
In light of this primary purpose and_the Appeal Board's view that the brochure should be taken as a whole, contentions rais-ing niggling complaints about a sentence here or a word there should be denied as de minimis.
Other objections are as follows:
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. Contention 16.J This-contention has been rewritten, but the import of the changed wording is not clear.
Formerly it said that the brochure was missing much specific detail, particularly what radio stations are participants in the EBS system; now it says that the brochure "does not describe" what radio stations are participants in the EBS system.
-We object to the word " describe."
There is no legal re-quirement that a brochure " describe" radio stations.
Nor is there adequate specificity in the contention to inform us what sort of " description" is wanted.
If the County really wants the brochure'to " describe" such things as the location of the f
radio station, its power output, its broadcast range, and so forth, then the contention asks for needless detail not re-quired by the regulations.
If on the other hand the Contention means to say " list" the radio stations, then there is no basis for the contention.
LILCO will list whatever stations are participating in the EBS system when the brochure is published.
Page 6 of Revision 3 of the brochure has as a bold-faced subhead the words "EBS sta-tions."
Under that subhead is the legend "(to be completed prior to mailing to public)."
Emergency planning findings are predictive;3/ it is clear that the brochure that is distributed 3/
Louisiana Power and Light Co. (Waterford Steam Electric Station, Unit 3),-ALAB-732, 17 NRC 1076, 1103-04 (1983).
to the public will contain a list of the radio stations, and it is baffling why the' County wishes to waste everyone's time by submitting a contention to the contrary.
Contention 16.K This.is a brand new contention.
It says that the state-
-ment "[y]ou will find it easy to get to your relocation center if you travel along the recommended route" is misleading be-cause evacuation will not be '* easy. "
The first objection to this contention is that it lacks specificity and basis:
the County should have said with specificity why the brochure is wrong -- that is, why people will not find it easy to evacuate.
'In the second place, assuming that the County thinks that the reason evacuation will not be " easy" is traffic con-gestion, then the new Contention 16.K is simply an attempt to raise a traffic issue in the guise of a public education bro-chure issue.
Whether or not evacuation is easy should have been litigated under Contention 65, and there is no earthly l-.-
reason to litigate it now as a brochure issue.
In the third place, the contention is inconsistent with the-County's other contentions.
The statement that it is easy to-get to a relocation center if one travels along the recom-mended route is designed to encourage people to use the recom-mended routes.
The County has argued long and hard that people will not follow the recommended routes, and yet it now i
t
. challenges a statement in the brochure designed to get them to do exactly that.
The Appeal Board has reminded us that a fool-ish consistency is the hobgoblin of little minds,4/ but a rea-sonable consistency should be demanded.
The County should make a choice and litigate a consistent position.
It cannot rea-sonably expect to be heard when it argues both that people will not follow recommended routes and al so that LILCO should not be allowed to encourage them to do so.
In the fourth place, there is no baais for the allega-tion that evacuation will not be easy.
Again, the ease of evacuation was litigated with " Group I" Contention 65.
The record in that litigation shows that evacuation can be accom-plished promptly and that there will be signs to direct people to relocation centers and maps and traffic guides to help them find their way.
The County gives no basis for believing other-wise.
Contention 16.L This contention challenges the statement in the b*ochure that the recommended routes will be the " safest and fastest way out of the emergency planning area."
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Boston Edison Co. (Pilgrim Nuclear Generating Station, L
Unit 2), ALAB-479, 7 NRC 774, 794-95 (1978); Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-235, 8 AEC 645, 647-48 (1974).
. LILCO objects to this contention, in the first place, because it lacks basis and specificity.
The contention does not specify why the recommended routes are not the safest and fastest way out, nor does it give any basis for saying so.
In the second place, the contention is simply an effort to relitigate traffic issues that were litigated already under Contention 65.
The County tried again and again in the Group I
-litigation to show that'the recommeaded routes are not the fastest and safest way out of the emergency planning area, and LILCO showed time and again that they are indeed the fastest and safest way out of the emergency planning area and that the public will be told why.
In short, the new Contention 16.L is duplicative of Contention 65.
Contention 16.M Contention 16.M says that no pathfinder signs have been installed, contrary to the direction in the brochure to follow such' signs.
This contention is utter nonsense.
In the first
-place, there is no legal requirement that the signs be erected today.
Emergency planning findings are predictive, and so long as the signs are installed by the time they might be needed for an_ evacuation, it is perfectly appropriate to tell people in the brochure to follow the signs.
If the County is saying in the contention that the signs will never be put up, then either (1) it is duplicating its
. " legal authority" contention about signs (Contention 3) or (2) it has no basis for saying so.
It does not even attempt to tell us why it thinks the signs will not be put up.
If all the County is saying is that the sign's will not be on every " major" road, then the contention lacks basis and specificity.
The County should have specified what major roads it thinks are not covered by the signs.
(Among other things, this would have allowed LILCO to provide signs for such ror.ds and thereby make the contention go away, which is in everyone's interest, unless there is someone whose interest is only in delay.)
It is simply not enough for an intervenor to say that a statement is " false" without specifying on what basis he thinks it is false.
Contention 16.N In Contention 16.N Suffolk County takes issue with the name "LERO," saying that it is an " official-sounding title" but that it is not adequately described in the brochure.
The two conflicting complaints made by the contention seem to be (1) that people will not know what LERO is and therefore will not find the brochure credible and (2) that they will mistakenly think LERO is a governmentally authorized body and therefore will find the brochure credible.
The first objection to admitting this contention is that it is untimely.
In essence it criticizes the name " Local
. Emergency Response Organization," a name of which Suffolk Coun-ty has been aware for many months.
The mere fact that this name is used in a brochure that was recently revised does not even begin to justify the untimeliness of the contention.
Second, the County has twice before had a similar con-tention stricken.
In its revised contentions of January 12, 1984, proposed Contention 15.E.1 alleged that the EBS radio messages " lack credibility" because they do not explain "what it (LERO] is and who comprises it."
Earlier, in the County's original contentions dated July 26, 1983, the same idea was put forward in Contention 16.F:
The LILCO brochute does not inform the pub-lic that LILCO itself, in the form of LERO, will be issuing all information and protec-tive action recommendations, as well as performing almost all emergency response tasks.
It is important that the public be aware of the source of all emergency infor-mation so that it may assess and evaluate the information it is receiving.
In its Order of August 19, 1983, the Board denied Contention 16.F, saying that there "is no basis for the Intervenors' suggestion that these types of specific information and instructions should be included in a brochure."
The proposed 15.E.1 was denied admis-sion in the Board's February 3, 1984 order, though on different grounds.
Third, there is no legal requirement that the Local Emer-gency Response Organization be described.
The County's claim that the local organization's " affiliation, source of authority,
. legitimacy, manpower, training, or competence" be included is needless detail not required by any NRC regulation or guideline.
The County's position on this contention is surpassingly peculiar.
In other contentions (chiefly Contention 15) the County argues that the fact that LERO is a nongovernmental organization will cause people to respond inappropriately to emergency instructions; here the County insists that LILCO try to drum into people's heads that LERO is a nongovernmental organization.
At best the County is being inconsistent; at worst it is advocating measures that it believes would threaten the public health and safety.
Fourth, the contention appears to be duplicative in large measure of the " credibility" contention, Contention 15.
Fifth, there is no basis for the claim that the brochure
" suggests" that LERO is a "governmentally authorized body."
In-deed, the whole contention is without basis.
There is no basis for saying that people in the EPZ will not know what LERO is; there is no basis for saying that without complete information about LERO people will not believe the brochure.
Contention 18 Originally Contention 18 said that proposed LILCO telephone book inserts and EBS messages do not tell the reader what zone he is in or the zones in which protective actions must be taken or the prescribed routes out of those zones; now the contention says that the phone book inserts and EBS messages do not " adequately" do those things.
. This contention faiis for lack of specificity and basis.
The original contention said that LILCO failed to do something that.the County thought was required.
When LILCO did it, the County simply amended the contention to say that LILCO does not do it " adequately."
There is no conceivable argument by which this amendment can satisfy the Commission's requirements for adequately specified contentions.5/
There are inadmissible contentions, and there are clearly inadmissible contentions.
This is one of the latter.
Respectfully submitted, LONG ISLAND LIGHTING COMPANY BY ames N.
Christman Hunton & Williams P.O.
Box 1535 707 East Main Street Richmond, VA 23219 DATED:
March 1, 1984 i
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If this sort of contention were admissible, intervenors could generate admissible contentions by machine, simply naming each element of an emergency plan or a nuclear plant and adding the words "is inadequate."
LILCO, March 1, 1984 I ON., E D vh CERTIFICATE OF SERVICE 84 f2 -5 R2:14 In the Matter of
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LONG ISLAND LIGHTING COMPANY MMU e 3ERVK!
(Shoreham Nuclear Power Station, Unit 1) B ANCH Docket No. 50-322-OL-3 I hereby certify that copies of LILCO'S ANSWER TO SUFFOLK COUNTY'S MOTION TO FILE MODIFIED PUBLIC EDUCATION BRO-CHURE CONTENTIONS AND' OBJECTIONS TO THOSE' CONTENTIONS were served this date upon-the following by first-class mail, post-age prepaid, or by hand, as indicated by an asterisk, or by
. Federal Express, as indicated by two asterisks:
James A.-Laurenson,*-
Secretary of the Commission Chairman U.S. Nuclear Regulatory Atomic Safety and Licensing.
Commission Board
~
Washington, D.C.
20555 U.S. Nuclear Regulatory
. Commission Atomic Safety and Licensing East-West Tower, Rm. 402A Appeal Board Panel 4350 East-West Hwy.
U.S. Nuclear Regulatory Bethesda, MD 20814 Commission Washington, D.C.
20555 Dr. Jerry R.
Kline*
Atomic Safety and Licensing Atomic Safety and Licensing Board Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission East-West Tower,.Rm. 427 Washington, D.C.
20555
-4350 East-West Hwy.
(
Bethesda, PG) 20814 Bernard M.
Bordenick, Esq.*-
L David A. Repka, Esq.
Mr. Frederick J.
Shon*
Edwin J.
Reis, Esq.
Atomic Safety and Licensing U.
S. Nuclear Regulatory Board Commission U.S.'. Nuclear Regulatory
.7735 Old Georgetown Road l
Commission (to mailroom) i East-West Tower, Rm. 430 Bethesda, MD 20814 4350 East-West Hwy.
Bethesda, MD
-20814 lt.
I i
. Eleanor L.
Frucci, Esq.*
Stewart M.
- Glass, Esq.**
Attorney Regional Counsel Atomic Safety and Licensing Federal Emergency Management l
Board Panel Agency U.
S. Nuclear-Regulatory 26 Federal Plaza, Room 1349 Commission' New York, New York 10278 East-West Tower, North Tower
-4350 East-West Highway Stephen B.
- Latham, Esq.**
Bethesda, MD 20814 Twomey, Latham & Shea 33 West Second Street Fabian G.
Palomino Esq.**
P.O.
Box 398 j
Special Counsel to the Riverhead, New York 11901 Governor Executive Chamber Ralph Shapiro, Esq.**
Room 229 Cammer & Shapiro, P.C.
State Capitol 9 East 40th Street Albany, New York 12224 New York, New York 10016 Herbert H. Brown, Esq.*
James Dougherty, Esq.*
Lawrence Coe Lanpher, Esq.
3045 Porter Street Christopher McMurray, Esq.
Washington, D.C.
20008 Kirkpatrick, Lockhart, Hill Christopher & Phillips Howard L. Blau 8th Floor 217 Newbridge Road 1900 M Street, N.W.
Hicksville, New York 11801 Washington, D.C.
20036 Jonathan D.
Feinberg, Esq.
Mr. Marc W.
~ Energy Research Group Department of Public Service 4001 Totten Pond Road Three Empire State Plaza Waltham, Massachusetts 02154 Albany, New York 12223 MHB-Technical Associates Spence W.
Perry, Esq.
1723 Hamilton Avenue Associate General Counsel Suite K Federal Emergency Management San Jose, California 95125 Agency 500 C Street, S.W.
Mr. Jay Dunkleberger Room 840 New York State Energy Office Washington, D.C.
20472 Agency Building 2 Empire State Plaza Ms. Nora Bredes Albany, New York 12223 Executive Coordinator Shoreham Opponents' Coalition 195 East Main Street Smithtown, New York 11787
o Gerald C..Crotty, Esq.
Martin Bradley Ashare, Esq.
Counsel to the Governor Suffolk County Attorney Executive. Chamber H.
Lee Dennison Building State Capitol Veterans Memorial Highway Albany, New York 12224 Hauppauge, New York 11788 ames M.
Christman Hunton & Williams 707 East Main Street
.P.O.
Box 1535
. Richmond, Virginia 23212 DATED:
March 1, 1984 i
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