ML20094A071

Motion to Admit Proposed Modified Emergency Planning Contention 88 & Revised Testimony of Gc Minor on Emergency Planning Contentions 85 & 88.Related Correspondence

ML20094A071
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	08/01/1984
From:	Mark Miller KIRKPATRICK & LOCKHART, SUFFOLK COUNTY, NY
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20094A076	List: ML20094A071 ML20094A102
References
OL-3, NUDOCS 8408030105
Download: ML20094A071 (11)

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?EUMED co;'yd/Myg UNITED STATES OF AMERICA -

NUCLEAR REGULATORY COMMISSION gg

,f Before the Atomic Safety and Licensing Board

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In the Matter of )

} Docket No. 50-322-OL-3 LONG ISLAND LIGHTING COMPANY ) (Emergency Planning)

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(Shoreham Nuclear Power Station, )

Unit 1) )

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SUFFOLK COUNTY'S MOTION TO ADMIT PROPOSED MODIFIED EMERGENCY PLANNING CONTENTION 88 AND SUFFOLK COUNTY'S REVISED TESTIMONY ON EMERGENCY PLANNING CONTENTIONS 85 AND 88

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w For the reasons set forth below, Suffolk County hereby re-quests that the Board admit proposed Emergency Planning Conten-tion 88, as modified to reflect Revision 4 of the LILCO Plan, and the attached revised testimony on contentions 85 and 88 (Recovery and Reentry).

I. Background Suffolk County and LILCO each filed direct written testi-mony on Contentions 85 and 88 on March 21, 1984. This testimo-ny was based on Revision 3 of the LILCO Plan. On or about July 3, 1984, counsel for Suffolk County received one copy of Revi-sion 4 of the LILCO Plan. Thereafter, on July 6, 1984, the County filed a Motion for Stay of Emergency Planning Hearings in Light of LILCO's Submission of Revision 4 of LILCO Transition Plan (hereinafter, " Motion for , Stay").

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In its Motion- for Stay, the County noted that, although it had not yet had an opportunity to review in any detail the con-tents of Revision 4, even a brief and cursory review of the document revealed that LILCO's submission of Revision 4 required an immediate stay of the proceedings in order to per-mit the parties time to review the Contentions and prefiled testimony upon which this litigation is based to determine whether and how they should be revis'ed. Motion for Stay, at 2.

The County pointed out that, among other things, Revision 4 contained a totally new procedure (OPIP 3.10.2 - " Total Popu-lation Dose"). Id., at 2-3. In addition, the County noted that Revision 4 appeared to contain much additional and/or re-vised information concerning LILCO's proposed protective"ac-tions for recovery and reentry procedures. Id., at 3-4. In the County's view, while the full impact upon the Contentions and the testimony related to those subjects could not be deter-mined until a complete review and analysis of Revision 4 had been performed, it was significant that the County had received, on July 5, 1984, LILCO's motions to admit supplemen-tal and revised te'stimony on Contentions 85 and 88 (dealing with recovery and reentry procedures). Id., at 4. Indeed, in LILCO's own words, such supplemental and revised testimony was made necessary solely by Revision 4, which made LILCO's prefiled testimony of March 21 "no longer . . . an accurate

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representat i on of the' recovery and reentry provisions of the

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LILCO', Plan." 'LILCO's Motion-to Admit LILCO's Revised Testimony

. v s on Contention ~88 .(DoseCC'itoria r and Cost Benefit Analysis for R5 entry), at 3 7 3

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the Board denied the County's Motion for

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Stay. T,r.M12;109.s That'same week, the Board required the par-

, si', i tie's. to respond\ crally to LILCO's motions to admit supplemental and^ revised._testimor.y on' Contentions 85 and 88. Tr 12,846. In y  ; ,- .

11tsiresponsa, the County first objected to having to respond to LILCOS mo.tions;withcht having had any opportunity to review N .', -

Revision'4, which-formed the underlying basis for LILCO's mo-tions. i Tr. 12,8'46-47. The County then argued that neither of ,

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LILCO's ' motions met the Board's standards for admission of such testimony, and that'LILCO's motions should therefore be denied.

Tr. 12',846-53. The. County made clear, however, that if LILCO's supplemental or, revised testimony should be admitted, the Board would be compelle.d to give the County an equal right to submit supplemental or revised testimony and, if necessary, to modify the Contentions previously admitted by the Board. Tr.

12iB51-52. .The' County's position in this regard was made clear in ' response to a question from the Board following argument:

l Judge,Laurenson: Before we turn the micro-phone over to Mr. Zahnleuter, let me just inquire what the County would have us do, for instance, on the [ Contention] 88 testi-mony? Do you prefer that we should l . .

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litigate the1 testimony that is already on.

file,-on a revision of the (P]lan, Number 3, that-has been abandoned?

Mr. Miller: . Judge Laurenson, the County's-position I think has been consistent in this matter. We don' t prefer to litigate old matters or matters which according to LILCO-have been made moot by a revision to E its (P]lan.-

But we need equal footing. And we'need time to look over Revision 4 and to file --

to determine first whether.we need to re-

, vise our [Clontentions. Maybe' withdraw our (C]ontentions, I don' t know.- -But to deter-mine whether we need to do anything with respect to the pending [C]ontentions and to determine whether we, too, would_need to revise or modify our testimony before.the Board.

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Tr. 12,853-54.

Although the Board granted LILCO's motions to admit the I

supplemental and revised testimony on Contentions 85 and 88 (Tr. 13,038), it agreed with the County that, in fairness, the t

other parties had to be given some opportunity to review LILCO's testimony and to prepare a reply. Tr. 13,037. Follow-ing discussion among the-parties and the Board on July 17, 1984, it was agreed that the County would file its revised tes-timony:on Contentions 85 and 88 on or before August 1, 1984.

Tr. 13,310.

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Pursuant to the Board's ruling, Suffolk County hereby re-

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quests that the Board allow the County-tc withdraw its previ-ously filed testimony on Contentions 85 and 88, and replace that testimony with the revised testimony attached to this Mo-tion. Similarly, the County requests that the Board allow the County to withdraw previously admitted Contention 88, and re-place that Contention with the proposed Contention discussed below, which has been modified to reflect Revision 4 of the LILCO Plan.1/

1/ In -ruling that revised testimony must be filed on or be-fore August 1, 1984, the Board stated the following:

Judge Laurenson: . . . We had had a discus- ~

sion off the record :oncerning the: w scheduling of revised tes.timony by the County on Contentions 85 and 88 in response to our ruling of last week .with regard to

LILCO's revised and amended testimony on j those two [C]ontentions.

And with the assistance of all parties here, I believe we have negotiated a sched-ule that is satisfactory to everyone. And just to summarize it, the County will file revised testimony on Contentions 85 and 88 i on or before August 1st.

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• l Tr. 13,310. The County believes that by'this ruling, which reflected agreement among the parties, the Board

granted the County the right to file revised testimony on Contentions 85 and 88, so long as such testimony is filed ,

on'or before August 1. Further, in the County's view, the Board's ruling in granting LILCO's motions to admit sup-plemental and revised testimony on Contentions 85 and 88 (Tr. 13,037-38) gives the County the right to modify the l Contentions to reflect Revision 4 of the LILCO Plan. Nev-(Footnote cont'd next page) i

II. Discussion A. Proposed Modified Contention 88 At the outset, it should be noted that the County is not seeking to modify the text of Contention 85; in the Coun-ty's view, Revision 4 of the LILCO Plan does not require any modification to that Contention. However, the County is seeking to modify Contention 88 to reflect substantive and sub-stantial changes in the Plan made by Revision 4. In discussing these changes, the County wishes to emphasize that, notwith-standing LILCO's changes, the basic thrust of the pre-existing Contention remains the same -- i.e., that LILCO's Plan fails to satisfy the planning standards of 10 CPR 50.47(b)(13) and NUREG 0654 Section II.M, governing reentry by the public into previ-ously evacuated areas.

In Revision 4, two provisions have been reme?cd f203 the recovery and reentry provisions in OPIP 3.10.1 of the Plan.

First, whereas OPIP 3.10.1, Revision 3, provided that radiological crite.ria for reentry were to be determined in (Footnote cont'd from previous page) ertheless, by this Motion, the County believes it establishes good cause for the filing of the attached re-vised test.'. mony and the admission of proposed modified Contention 88.

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- accordance with Attachment 1 of OPIP 3.10.1, which set forth radiological criteria for reentry in disintegrations per l minute, LILCO has now removed Attachment 1 of OPIP 3.10.1 from i

the Plan and no longer relies on disintegrations per minute as radiological criteria for reentry. See LILCO's Motion to Admit LILCO's Revised Testimony on Contention 88 (Dose Criteria and Cost-Benefit Analysis for Eeentry), at 1-2. Second, whereas OPIP 3.10.1,' Revision 3, provided that decisions regarding tem-porary reentry would be based on a cost-benefit analysis of

$1,000/ person-rem during temporary reentry, Revision 4 has now removed this provision from the Plan. Thus, the Plan, as re-vised, no longer provides for cost-benefit analysis during tem-

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porary reentry. Id. -

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In addition, Revision 4 has added a totally new procedure to the LILCO Plan -- OPIP 3.10.2. This procedure sets forth a method for calculating total population dose. Previously, the LILCO Plan did not include a method for calculating or estimating total population exposure. See LILCO's Motion to Admit Supplemental. Testimony on Contention 85 (Recovery and Re-entry), at 1.

To reflect these changes to the LILCO Plan, the County proposes to modify Contention 88 as follows:2/

2/ In order to indicate the modifications made to Contention 88, language added to the text has been underlined and a (Footnote cont'd next page)

Contention 88. OPEP-3:10 1-sets-feeth 8Ae-eeptable-Surface-Eentaminatien-Levels u -in units-ef-disintegratiens-pee-minuter--The Plan-dees-net-include-a-methed-fee-cen-veeting-such-informatien-inte-eadiation -

deses-te-the-publie-f gerry-peesen-remst The LILCO Plan aise falls.to state the dose criteria that'will provide the basis for a determination that it is safe for the pub-lic to reenter previously evacuated areas.

The-Plan-ealls-fee-eest-benefit-analysis based-en-a-Sly 000/persen-rem-dueing-tespe-eney-reentey-tePIP-3v10:1-at-5+7-but-pee-vides-ne-guidance-en-hsw-te-analyse-a-situ-atien-in-eedee-to-be-able-te-apply-this eviterienv Thus the Plan fails to comply with 10 CFR Section 50.47(b)(13) and NUREG-0654, Sections firivid 7 -and II.M.1.

As the above discussion indicates, Revision 4 includes a substantial rewriting of LILCO's proposed procedures for recov-ery and reentry. In addition, Revision 4 includes a totally new procedure -- OPIP 3.10.2. These LILCO changes have made modifications to Contention 88 necessary.

B. Revised Testimony on Contentions 85 and 88 The Caunty's revised testimony is relevant, material and probative to the issues raised in Contentions 85 and 88.

Further, the testimony could not have been filed earlier, since LILCO did not serve Revision 4 until on or about July 3 and did (Footnote cont'd from previous page) dashed line has been drawn through deleted language. The only word added to the text of Contention 88 is the word "LILCO" before the word " Plan" in the first sentence of the modified Contention.

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not file its motions to admit supplemental and revised testimony on Contentions 85 and 88 until on or about July 5.

Further, the Board did not admit LILCO's testimony until July 13, and the testimony now proffered by the County is filed within the time limit set by the Board and agreed to by the parties on July 17. Tr. 13,310. Finally, the parties will not be prejudiced if this. testimony is admitted, since the Conten-tions at issue have not yet been heard.

This Board has previously noted that, for an adequate showing of " good cause," proferred testimony must be shown to be relevant, not cumulative, and incapable of being filed in a

! more timely fashion. See Board Order dated February 28,_1984, at 7. Here, the proferred testimo'ny meets the requisite showing of good cause. First, it is relevant to the issues raised in the Contentions at issue, to LILCO's supplemental and revised testimony admitted by this Board on July 13, and to Re-vision 4 of the LILCO Plan. Further, the testimony is relevant to an issue of decisional importance in this proceeding. Con-tentions 85 and 88. raise questions about LILCO's procedures and methods for recovery and reentry in the event.of an emergency at the Shoreham plant. The testimony responds to the changes )

made by LILCO in Revision 4 of the Plan and LILCO's approach to recovery and reentry. The testimony supersedes the County's j position taken in the March 21 testimony, when LILCO was e

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l relying'on Revision 3 of the Plan.. Thus, the' County has j l

withdrawn'some testimony, and modified other testimony, to re-flect the changes recently made by LILCO. For these reasons, the prior testimony the County now seeks to withdraw, if used as the basis for hearings on Contentions 85 and 88, would not-

, provide a. complete or accurate record for decision.

i Second, the proferred testimony is not cumulative with any other testimony. The recovery and reentry issues discussed in the testimcny have not yet been litigated and thus, at this time, the information contained and discussed in the revised testimony does not appear as evidence anywhere in the record.

Further, the testimony responds to changes made by LILCO_in Re-vision 4 of the Plan, which is new information.

Finally, it is clear that the proferred testimony is time-ly, since it is being filed within the time per.iod set by the Board, as discussed above.

! III. Conclusion

' For the reaso'ns stated above, Suffolk County requests that ,

! the Board admit the County's revised testimony on Contentions t

85 and 88, which is attached to this Motion. If the revised 1

testimony is admitted, the County also moves to withdraw the testimony it filed on Contentions 85 and 88 on March 21, 1984.

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Suffolk County also requests that the' Board admit proposed Contention 88, as modified to reflect Revision 4 of the LILCO Plan, in substitution of the Contention 88 previously admitted by the Board. In the event that any party objects to the ad-mission of the proposed modification and the Board sustains such objection, then the County will withdraw the proposed objected-to modification and will rely upon existing Contention 88.

Respectfully submitted, Martin Bradley Ashare Suf folk County Department of Law Veterans Memorial Highway Hauppauge, New York 11788 KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS-t7d6 Lawrence Coe Lanpher Karla J. Letsche Michael S. Miller Christopher M. McMurray

, 1900 M Street, N.W.

Washington, D.C. 20036 Attorneys for Suffolk County Date: August 1, 1984 1

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