ML20127G204
| ML20127G204 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 05/17/1985 |
| From: | Gundrum M, Mark Miller, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SUFFOLK COUNTY, NY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#285-057, CON-#285-57 OL-3, NUDOCS 8505210004 | |
| Download: ML20127G204 (34) | |
Text
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May 17, 1985
' UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION II1f Before the Atomic Safety and Licensing Board 55 520 M0:5
)
NC In the Matter of
)
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Docket No. 50-322-OL-3 LONG ISLAND LIGHTING COMPANY
)
(Emergency Planning)
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(Shoreham~ Nuclear Power Station,
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Unit 1)
)
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SUFFOLK COUNTY AND STATE OF NEW YORK MOTION
(
FOR RECONSIDERATION OF MAY 6 ASLB ORDER OR, IN THE ALTERNATIVE, MOTION TO REOPEN THE RECORD ON LILCO'S RELOCATION CENTER SCHEME I.
Introduction In its May 6 Memorandum and Order (Reopening of the
' Record) (hereinafter, the " Order"), this Board granted LILCO's motion to reopen the evidentiary record in this proceeding so that LILCO could attempt to fill the " void" in the record con-cerning admitted relocation center contentions and LILCO's in-
-ability to satisfy 10 CFR Part 50 and NUREG 0654 requirements regarding' relocation centers for evacuees.
That Order, 2 5"1888 St88aL a
'/
0 PDR v
a
r J
o however, contains~ clear legal error:
it permits LILCO and the NRC Staff (through its agent, FEMA) to submit evidence on LILCO's latest relocation center schemo, and at the same time it arbitrarily and without rational or legal basis prohibits Suffolk County and the State of New York from presenting factu-al evidence which demonstrates that (1)
LILCO's recently proffered new evi-dence, as well as that already in the evidentiary record concerning reloca-tion centers, is false; (2)
LILCO's latest relocation center pro-posal violates State law and does not comply with NRC and NUREG 0654 re-quirements concerning relocation capa-bilities; and (3)
LILCO's relocation center scheme can-not lawfully, or as a practical mat-ter, be implemented.
In so ruling, in disregard of the State and County submissions on this subject and the NRC's own Rules of Practice, this Board violated the State's and County's statutory and constitutional-ly protected due process right to a fair and impartial hearing.
By this Motion, we ask the Board to reconsider and correct its ruling or, in the alternative, to reopen the record for the purpose of considering the County's and State's evidence that demonstrates the falsity of LILCO's evidence in the record and +
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6 LILCO's failure to carry its burden of proof on admitted relocation center contentions.
In addition, should the Board refuse'to reconsider its Order or refuse to grant the alterna-tive motion,to reopen, we request that it certify the matter to the Appeal Board so that prompt correction of the Board's error can be made.
II.
Background
An understanding of the events which preceded the filing of LILCO's motion to reopen is essential.
It is only with such an understanding that it becomes clear that the County and State have been improperly denied an opportunity to contest LILCO's case on Contentions 24.N, 24.0, 74 and 75.
For the Board's convenience, we summarize the significant background and chronology below.
A.
Proceedings on Relocation Center Issues Between June 1983 and the Closing of the Record in August 1984 Intervenors' emergency planning contentions, including the four which deal directly with the NUREG 0654 requirements con-cerning relocation centers (Contentions 24.N, 24.0, 74 and 75),
were filed on July 26, 1983.1/
Those contentions were based on
~/
The first version of these contentions, which was 1
presented in a different organizational format, was filed on June 23, 1983. l l
N_
7 -
the original version of LILCO's Plan, Revision 0, issued in late May 1983, which proposed Suffolk County Community College, BOCES Islip Occupational Center, and the State University of New York at Stony Brook ("SUNY-Stony Brook") as " primary" relo-cation centers, and the State University of New York at Farm-
- ingdale ("SUNY-Farmingdale") and St. Joseph's College as "back-up" relocation centers.
These were the only " relocation cen-ters" then proposed by LILCO, and all the services which later were separated into two categories to be performed in separate locations -- i.e.,
" reception" centers (including monitoring and decontamination), and " congregate care" centers (including food, lodging and relocation assistance) -- were to be performed-at each one.
Contentions 24.N, 24.0, 74 and 75, which we do not repeat here since they are set forth in Appendix C to the April 17 Partial Initial Decision, all relate to the requirements of NUREG 0654 that an offsite emergency plan must includes (1)
Identification of relocation centers in " host areas" (Sections II.J.10.a, 10.g and 10.h);
l (2)
Agreements governing the availability and use of all facilities relied upon (Sections II.A.3 and II.C.4);
(3)
Relocation centers at particular loca-tions (Section II.J.10.h); and -
(4)
Relocation centers in host areas with particular capacities, facilities and equipment, including a capability of monitoring evacuees within a 10-hour period (Sections II.J.10.g and J.12).
The contentions identify particular deficiencies in LILCO's proposed relocation center plans, including its inability to implement its proposals for providing food, lodging, relocation services, medical care, necessary sanitation facilities, regis-tration, radiological monitoring, and decontamination services, and LILCO's failure to comply with each of the NUREG 0654 re-quirements summarized above.
The subsequent Revisions 1, 2 and 3 of the LILCO Plan, which were issued in August, November, and December 1983, re-spectively, made no change in the relocation centers originally proposed by LILCO, despite the specific deficiencies, including the lack of agreements with the owners of such centers and the unavailability of Suffolk County Community College for use by LILCO, which were identified in Intervenors' Contentions 24.N, 24.0, 74 and 75 and their respective preambles.
Subsequent to the March 1984 filing of testimony by LILCO and Suffolk County on Contentions 24.N, 24.0, 74 and 75,2/
2/
This testimony addressed LTT.CO's relocation center propos-al contained in Revision 3 of the LILCO Plan.
LILCO indicated that it intended to change the relocation cen-ters relied upon in its Plan because some of those facilities were in fact not available for use by LILCO.3/
The Board then ordered LILCO to file supplemental testimony on the relocation conter contentions by June 15, 1984.
LILCO's first round of " supplemental" relocation center testimony discussed a new LILCO proposal to use the BOCES II Center, SUNY-Farmingdale, and St. Joseph's College as " primary" relocation centers, and Dowling College as a " backup" center.
Again, these proposed relocation centers were to provide at each facility what later became known as " reception" and " con-gregate care" services.
LILCO's June 15 testimony indicated that this second relocation center scheme would be contained in Revision 4 of the Plan, which had not yet been issued.
On June 26, 1984, Suffolk County filed revisions to its previously filed direct testimony on the relocation center issues.
3/
Of course, the unavailability of the Suffolk County Commu-nity College was well known to LILCO at least as early as the summer of 1983, when Intervenors' contentions were filed; similarly, LILCO precumably was always aware that neither it nor the Red Cross had any agreements with the owners of the BOCES and SUNY facilities for the use of those buildings by LILCO during a radiological emergency.
Nonetheless, it was not until after the parties had filed testimony concerning those facilities, and more than nine months after the contentions had been filed, that LILCO acknowledged its inability to respond to those contentions without changing its relocation center scheme.
After denying a LILCO request for additional time within which to pursue additional discovery on the relocation center issues, the Board ruled that any additional revised or supple-mental testimony filed by LILCO on the relocation center issues had to be filed on or before July 31, 1984.
Tr. 12,834.
On July 30, 1984, LILCO requested that the Board allow LILCO to withdraw its previously filed testimony on Contentions 24.0, 74 and 75 --
i.e.,
its second version filed on June 15 --
and requested permission to replace that testimony with revised testimony on the same issues.
LILCO's proposed revised testi-mony dated July 30, 1904 -- its third attempt to address relo-cation center issues -- failed to identify any relocation cen-ters to which LILCO intended to send evacuees.4/
Instead, the 4/
The testimony did include a long list of facilities which,
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according to LILCO, represented buildings available for LILCO's use in housing evacuees during an emergency.
The list included buildings such as fire truck garages and churches, and entire public school districts.
None of the facilities was designated as a relocation conter, however, and no agreements for their use by LILCO were submitted.
Furthermore, during litigation of the relocation center issues in August, 1984, LILCO testified on cross examina-tion that the particitlar facilities to be used to house evacuees during an emergency would not in fact even be de-termined until an actual emergency at Shoreham had been declared and evacuees had left the EPZ and appeared at whatever location LILCO hoped in the future to identify as the facility where monitoring and decontamination would be performed.
See Tr. 14,801-02 (Rasbury).,
l testimony merely asserted that LILCO intended, at some unidentified time-in the future, to identify relocation cen-p terst'in addition, it' acknowledged that LILCO had no agreements to use-Suffolk County Community College or SUNY-Stony Brook as relocation centers, and stated that they were not relied upon in Revision 4 of the LILCO Plan.
On August 13, 1984, the County and the State filed a Joint
. Mot. ion for Summary Disposition of Emergency Planning Conten-tions 24.0, 74 and 75 (Relocation Centers) and Opposition to LILCO's Motion to Admit Revised Testimony on Contentions 24.0, 74 and 75.
The summary disposition motion, which was accompanied by a " Statement of Material Facts Not in Dispute,"
was based upon the fact that neither the LILCO Plan nor LILCO's July 30 third round of testimony designated specific relocation centers upon which LILCO intended to rely in the event of an emergency, and that LILCO ha'd failed to controvert or even ad-
-dress the issues raised in contentions 24.0, 74 and 75, since it had not identified the facilities it intended to use.
The County's and State's summary disposition motion was denied by the Board (Tr. 14,648); LILCO's motion for admission of its July 30 testimony was granted.
Tr. 14,663.
i d 6
L_
I During cross-examination of LILCO's witnesses in August, 1984, concerning the July 30 version of LILCO's testimony and its third relocation scheme, it became clear for the first time I
that, contrary to all LILCO's prior relocation center propos-als, and contrary to the statements in the new Revision 4 of the LILCO Plan, LILCO was then proposing to rely on two different types of relocation facilities -- one or more very large facilities called " reception centers," and approximately 50 smaller facilities called " congregate care centers."
Tr.
14,779 (Rasbury).
According to LILCO's oral testimony (Tr.
14,807-08 (Weismantle)), all radiation monitoring and decontamination activities were to take place at the new so-called " reception centers."
However, no proposed, much less actual, reception centers were designated or identified by LILCO.5/
In addition, it was revealed that the identities and locations of the so-called " congregate care centers," which were part of the new relocation center proposal disclosed dur-ing the cross-examination of LILCO's witnesses, were not even to be determined until after evacuees appeared at the unidentified " reception centers" during an actual emergency.
5/
Furthermore, LILCO's witnesses refused even to identify the candidate facilities then under consideration and with which negotiations were underway.
Tr. 14,793-94 (Rasbury). L.
Tr. 14,801-02 (Rasbury).
LILCO's witness, Mr. Rasbury, did testify, however, that the Nassau County Red Cross had agree-ments permitting the use of particular school buildings as so-called " congregate care" relocation centers following a Shoreham emergency.
These school buildings were listed in an attachment to a purported " letter of agreement" between the Nassau County Red Cross and LILCO dated July 25, 1984.6/
During the August.1984 relocation center hearing, the Board made clear that LILCO had failed in its most recent (i.e., third) attempt to persuade the Board that it had made adequate arrangements for evacuees.
Rather, the Board noted pointedly that there was a " void" in the record (see Tr.
14,806-07) -- a void which was not addressed by LILCO until January 1985.
6/
This " letter of agreement" was Attachment 1 to LILCO's July 30 testimony.
i B.
Proceedings on LILCO's 1985 Relocation Center Proposal j
Orr January 28, 1985, this Board, over the County's and State's? objection,1/ granted LILCO's January 11 motion to re-open the evidentiary record.8/
LILCO's motion was necessitated f
by LILCO's failure, despite three prior attempts, to meet its burden of proof on the admitted contentions concerning reloca-tion centers.
Having failed to prevail on those contentions with_any of its three earlier relocation center schemes (as ac-
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knowledged by the Board in its " void in the record" comment 9
i (Tr. 14,806-07)), LILCO, in October *1984, came up with a new scheme which it sought to have litigated by its motion to re-open.
According to the evidence proffered by LILCO with its motion to reopen, the new relocation center proposal would in-volve the use of the Nassau Coliseum as a " reception" reloca-tion center, and " congregate care centers operated by the Red
. cross, chosen from among those on the list provided with the Letter of Agreement between Long Island Lighting Company and 7/'
See Suffolk County and State of New York Opposition to I
LILCO's Motion to Reopen the Record, dated January 18, 1985 (hereinafter, " County / State Opposition").
8/
Memorandum and Order Granting LILCO's Motion to Reopen j
Record, dated January 28, 1985 (hereinafter, " January 28 Order").
m
s i
[
the American Red Cross dated July 25, 1984." ' See Attachment 3 to LILCO's Motion to Reopen Record (letter dated October 23,
.1984 from Matthew C. Cordaro to Frank M. Rasbury).
i Pursuant to the Board's January 28 Order, Suffolk County and New York State, on February 19, 1985, submitted testimony concerning the merits of LILCO's new relocation center scheme.
The County's testimony demonstrated that:
.i L
(1)
LILCO's assertion in its evidence proffered with the motion to reopen and in testimony already in the evi-dentiary record is false.
In fact, contrary.to LILCO's assertion, there are no agreements between the Nassau County Red Cross and many if not all of the facilities to which evacuees will be sent for " congregate care" re-location purposes after they have reported to the Nassau Coliseum.
(See Direct Testimony of Leon Campo on Be-half of Suffolk County Regarding LILCO's Proffered Evidence of January 11).
(2)
LILCO's proposal to use the Nassau Coliseum as a reception relocation center would. increase the evacuation shadow phenomenon resulting from a i
Shoreham accident from that discussed
[
during the prior litigation, when re-location centers located much nearer the edge of the EPZ were being pro-t posed by LILCO.
(See Direct Testimony of James H. Johnson, Jr. on Behalf of Suffolk County Regarding LILCO's Proffered Evidence of January 11).
(3)
LILCO's une of the Nassau Coliseum as a reception relocation center would l,
f
(
likely result in an incremental increase in adverse health effects following a shoreham accident.
(See Direct Testimony.of Edward P. RadTord onLBehalf of Suffolk County Regarding LILCO's Proffered Evidence of January 11).
(4)
LILCO's use of the Nassau Coliseum as a relocation reception center would e
result in serious and substantial traffic congestion that would cause-delays in evacuees reaching the center where they are to be' monitored and i
decontaminated, and could result in evacuation times substantially higher than those discussed during the prior litigation, since that litigation was premised upon use of three separate relocation facilities all much closer to the EPZ than the Nassau Coliseum.
1 (See Direct Testimony of Deputy Chief Inspector Richard C.' Roberts on Behalf of Suffolk county Regarding LILCO's Proffered Evidence of January 11).
In addition, New York State's testimony demonstrated that:
(1)
LILCO's use of the Nassau Coliseum as a reception relocation center would result in serious traffic congestion that would cause significant delays to evacuees attempting to reach the Coli-soum.
(See Direct Testimony of Charles ET Kilduff on Behalf of New-York State Regarding LILCO's Proffered Evidence of January 11).
(2)
The use of the Nassau Coliseum as a reception relocation center violates New York State law and is imper-raissible because Nassau County has not prepared an environmental assessment pursuant to the New York State Envi-ronmental Quality Review Act; this 13 _
r l
I n
a
fact renders Nassau County's purported
'" agreement" to permit LILCO to use the Coliseum without effect.
(See Direct Testimony of Langdon Marsh on Behalf of the State of New York Regarding LILCO's Proffered Evidence of January 11).
(3)
LILCO's use of the Nassau Coliseum as a reception relocation center, Where decontamination of individuals and au-tomobiles would take place, poses a serious health threat to the public and threatens the water supply relied upon by residents of Brooklyn, Queens, Nassau and Suffolk Counties.
(See Di-rect Testimony of Sarah J. Moyland on Behalf of the State of New York Regarding LILCO's Proffered Evidence of January 11).
The County's and State's testimony was challenged by LILCO in a February 26, 1985 response, Which asserted that the testi-mony should not be-admitted into the record and did not estab-lish the need for evidentiary hearings on the reopened reloca-tion center issues.9/
Because LILCO's February 26 Response contained factual and legal misstatements and arguments which required correction and a response, Suffolk County and New York State, on March 1, 1985, moved for leave to reply to LILCO's Response.lS/
Although a substantive reply was not attached to 9/
LILCO's Rosponse to Intervenors' Proffered Testimony on the Designation of Nassau Coliseum as a Reception Center, dated February 26, 1985 (hereinafter, "LILCO Response").
-~/
Suffolk County and State of New York Motion for Leave to 10 File Reply to LILCO'u' Response to February 19 Proffered (Footnote cont'd next page),
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' ^ ^ ^ ' ' ^ '
f the March 1 Motion, there were attached three letters, from of ficials responsible for purported congregate care facilities with which LILCO had asserted it had agreements, stating that L
no such agreements for the use of their facilities as reloca-l tion centers of any kind in fact exist.
Subsequently, after learning of the Appeal Board's February 13, 1985 Waterford ruling,ll/ the County and State stated their intent to submit the substantive reply referenced in the March 1 Motion, unless otherwise directed by the Board.12/
Receiving no response from E
the Board, the County and State on March 20, 1985, filed a reply to LILCO's February 26 Response.13/
Thereafter, on April 12, 1985, the County filed a Supplement to the Direct Testimony of Leon Campo Regarding LILCO's Proffered Evidence of January (Footnote cont'd from previous page)
Testimony on the Designation of Nassau Coliseum as a Moni-toring and Decontamination Center, dated March 1, 1985 (hereinafter, " March 1 Motion").
11/
Louisiana Power & Light' Company (Waterford Steam Electric l
Station, Unit 3) (Feb. 13, 1985).
12/
See Suffolk County and State of New York Notice of Inten-tion to File Reply Memorandum, dated March 13, 1985.
i 13/
See Suffolk County and State of New York Reply to LILCO's Response to Fcbruary 19 Proffered Testimony on the Desig-nation of Nassau Coliseum as a Monitoring and Decontamina-tion Center, dated March 20, 1985 (hereinafter, "Coun-ty/ State Reply").
In its May 6 Order, the Board refused to consider the County / State Reply.
Order, at 4.
l t.
l l
l
F~
l 11.
This Supplement included nine statements from school districts, including the three identified in the March 1 Mo-tion, all to the effect that Mr. Rasbury's and LILCO's repre-sentations about the alleged availability of their facilities and agreements with the Red Cross were false.
Notwithstanding the evidence presented by the County and State in opposing the LILCO motion to reopen, including the letters attached to the March 1 Motion and the county's April 12 Supplement, which conclusively demonstrated the falsity of LILCO's proffered evidence, the Board in its May 6 Order ac-capted the evidence proffered by LILCO on January 11, i.e.,
the Robinson affidavit and the six attachments ta that affidavit, as LILCO's profiled testimony for the oral hearing ordered by the Board.
Order, at 4.
Not only did the Board commit arror in accepting LILCO's proffered testimony while apparently ignoring the evidence attached to the March 1 Motion and the County's Supplement, it also erred in precluding essentially all the County and State testimony filed in response to LILCO's proffered evidence -- all of which addressed admitted conten-tions and issues directly raised by LILCO's proffered evidence.
In fact, the Board denied entirely the testimony of County wit-nesses Leon Campo and James H. Johnson, Jr., and the testimony of all three State witnesses (Charles E. Kilduff, Langdon Marsh, and Sarah J. Moyland).
Furthermore, even the limited portions of the testimony of County witnesses Radford and Roberts admitted by the Board was so omasculated as to be rendered essentially meaningless.
For example, the Board " limited the scope" of Dr. Radford's testi-mony to whether the Nassau Coliseum can accommodato the number of persons anticipated during a Shoreham emergency.
Facts con-cerning the adverse health effects from having to travel the long distances betwoon the EPZ and the Coliseum before moni-toring and decontamination procedures are implomonted were inexplicably denied admission by the Board.
Similarly, Chief Roberts' testimony was accepted only to the extent that it addresses parking capacity and traffic congostion in parking lots at the Coliseum.
The other more substantial factual mat-ters discussed in the testimony, including the effects on evac-uation of anticipated traffic congestion onroute to the Colise-um, were denied admission.
B L.
III.
Argument A.
The Board Should Reconsider Its Order and Accept the Proffered Testimony of Suffolk County and New York State i
The Board's refusal to accept the evidenco submitted by Suffolk County and New York Stato has no rational basis and vi-olates fundamental principles of due process.
The Board's ruling not only ignores facts which demonstrate that ovidence accepted by the Board is falso and that LILCO's witnessos lack voracity and credibility, but also defies logic and reason.
There is absolutely no basis articulated anywhere in the Doard's order, nor could there be, for a limitation of the reopened issues only to one relocation centor contention --
Contention 24.0 -- or to the Board-derived " issue" of whether only one-half of LILCO's relocation scheme -- the Nassau Coli-soum -- is " functionally adequate to serve as a relocation cen-tor."
See Ordor, at 3, 4.
Novertheless, the Board purports to base its May 6 exclusion of the County's and State's evidence on these arbitrary limitations.
Contention 24.0 was only one of 9everal relocation center-related contentions submitted by Intervenors at the time LILCO's original relocation conter cchome was the basis for litigation.
Of courso, thoro are no admittod contention = using
the words " congregate care centers," or even "rocoption contors," since those terms had not boon coined by LILCO or injected into the LILCO Plan until the hearing in August 1984 on LILCO's third round of relocation center testimony.
There are, however, other contentions which directly address the ser-vices which LILCO now proposos to provido at "congregato care conters," rather than the previous all-purposo " relocation con-tors" -- they are Contentions 24.N, 74 and 75.
This Board can-not close its eyes to the fact that LILCO's entire relocation centor schomo is roquired to be litigated in this case.
The proffered testimony of Suffolk County and the State of Now York directly addresses aspects of that schomo, as described in the evidenco proffered with LILCO's motion to reopen.
l Furthormoro, LILCO's profforod evidenco, which forms the basis for this rooponed procoading, clearly has implications beyond the artificially narrow "issuo" (i.e., whethor the Nassau Coliseum is " functionally adequate" to servo as a relo-cation contor) used by the Board to reject the State and County testimony.
For examplo, there can be no denying the fact that the location of a rocoption conter will impact evacuation times, that the longth of time betwoon exposuro to radiation and docontamination can have ndverso health consequencos, and that the rolonso of contaminated water into the ground posos a - - -
l serious health threat.
Similarly, it would be baseless to suggest that the actual unavailability of LILCO's proposed fa-cilitios -- regardless of their theoretical so-called "func-tional adequacy" or capacity -- is a fact that a licensing board charged with ruling on the implementability of a plan can ignore.
Indeed, the testimony stricken by the Board directly chal-longes LILCO's ability -- in fact and actuality -- to implement its latest relocation center scheme.
Mr. Campo's testimony, for example, establishes that Nassau County school districts relied upon for use by LILCO and the Red Cross as congregate care relocation centers during a Shoreham omergency are, in fact, not available for such purpose.
In effect, for LILCO's purposo these facilities do not exist.
The facts in Mr.
Campo's testimony also make clear that the representations made by LILCO's witnesses, Mr. Rasbury and Ms. Robinson, concerning the allegod " availability" of school facilities and the alleged "agroomonts" with school districts consenting to the use of their facilities to implomont the LILCO Plan are false.
In fact, no such agrooments exist and, contrary to the testimony now in the record, the facilities will not be made available for LILCO's uso.
This Board cannot ignore thoue critical facts i
and deficienclos in LILCO's relocation contor proposal, as
- -----------------J
described in the evidence the Board has accepted in this reopened proceeding.
The County and Stato respectfully remind the Board that in admitting LILCO's evidence, the Board admitted LILCO's asser-tion that persons would be cared for at " congregate care cen-ters operated by the Red Cross, chosen from among those on the list provided with the Letter of Agreement between Long Island Lighting Company and the American Red Cross dated July 25, 1984."
Soo Attachmont 3 to LILCO's Motion to Roopen Record.
Having admitted the evidence of LILCO with the foregoing asser-tion, there can be no basis at all for denying the evidence of Mr. Campo, which specifically contests that assertion.
This constitutos a clear deprivation of due process.
- Soo, e.g.,
The Chicago Junction case, 264 U.S.
258, 265 (1924).
Moreover, the testimony rejected by the Board does not just challengo the veracity and credibility of LILCO's witness-es.
In addition, it clearly reveals that LILCO's latest relo-cation conter proposal, like its previous proposals, cannot in fact be implemented.
This is so not just because sufficient congregato care contors to shelter ovacueos will not be avail-ablo, or because LILCO's proposal is illegal under State law.
- Soo, e.g.,
the Testimony of Langdon Marsh and Sarah J. Moyland.
In addition, LILCO's proposal is unworkable because -
(1)
The Coliseum's location and distance from the EPZ would increase the magnitude and geographic extent of the evacuation shadow phenomenon, leading to increased traffic congestion and resulting in greater evacua-tion times and long delays in reaching the Coliseum, where evacuees must report to be monitored and decontaminated.
(See Testi-mony of James H. John %on, Jr.). ~~~
(2)
Even without this incrdased shadow phenome-non, evacuees'would nevertheless experience substantial delays ih attempting to reach the Coliseum because df'the heavy traffic
~'
congestion which must be expected.during a Shoreham emergency, the distance"of thh, Coliseum from the EPZ, and the heav,ilyi congested local roadways in the Na'ssau Col-iseum arita-dae to signalized interse'ction,s, heavy side friction and ro'adway construel-tion projects.
(See Testimony of,Dephty.
Chief Inspector Richard C.
Roberts arid Charlo:E.}Kilduff).
- N Thus, as a result $
d (3) to evacuees would'c3 verse health effects ho more sescre than if closer, more easily accessiblUscenter(s) were utilized.
(See Testimony of Edwatd P:
j i
s Radford).
a To deny the County and Stato an opportunity to put forth
,\\
theircasethroughthesubmission.[oftheabove-discussedtesti-
,y mony, as the Board has done, denie,s the County an'd State the opportunity to present on the record all the rele,vant facts pertaining to LILCO's latest proposed relocation, scheme,
^
or to
,,y, challenge the evidence presented by LILCO on admitted contea-
.c tion's in this proceeding.
The Board's ruling cle,arly violates s
the County's and State's rights under NRC regulations.
- See,
,(
s
, ~
F
~..
e.g.,
10 CFR $ 2.743(a) ("Every party to a proceeding shall have the right to present such.
. evidence as may be required'for full and true disclosure of the facts.") (emphasis added).
It also violates Section 189a of the Atomic Energy Act (42 USC $ 239(a)) (see Union of Concerned Scientists v. NRC, 735 F.2d 1437, 1444 (D.C. Cir. 1984), cert.-denied, 105 S.Ct.
815 (1985)) and the fundamental due process right to a fair hearing.
- See, e.g.,
The Chicago Junction Case, 264 U.S. at 265; Bowden v. McKenna, 600 F.2d 282, 284-85-(1st Cir. 1979)
(once plaintiff was allowed to testify on a relevant matter,
" defendants were plainly entitled to rebut"), cert. denied, 444 U.S.
899 (1979); Miller v. Poretsky, 595 F.2d 780, 785 (D.C.
Cir. 1978)
(" admission of appellees' witnesses testifying to their freedom from discrimination and the exclusion of appel-lant's witness testifying to the contrary was an abuse of discretion"); Scenic Hudson Preservation Conf. v. FPC, 354 F.2d N
608, 620 (2d Cir. 1965) ("The Commission has an affirmative duty to inquire into and consider all relevant facts"), cert.
denied, 384 U.S. 941 (1966).
See also ICC v.
Louisville & N.
Ry. Co.,
227 U.S.
88, 93 (1913) ("[M2anifestly there is no hearing when [a] party.
is not given an opportunity to test, explain or refute").
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L
_y 4
' 2 l' k-
[Thus, the Boardfs' decision to strike the proffered County /
x State testimony and arbitrarily to limit the reopened hearing
~
s'
(,, v.;to the narrow confines,0f Con'tention 24.0 violates constitu-w
,, r
[
tional rights'of:due-process and also~is contrary to the public-interest.. Moreover, it raises significant' legal and policy-questions-which_should be promptly resolved-for the protection of-the public interest,' and to avoid undue delay and serious Lprejud' ice to.the. County's and State's intere'sts.
The-Board's
.w ing makes clear that the County and State are only permitted
~
rul to challenge-the single issue of whether the Nassau Coliseum
,.q s
itself.is " functionally adequate to serve as a relocation'cen ~
.ter.../." ' Order, at 4.- By artificially limiting the Nassa[
-Coliseum issues to the quest' ion of the' Coliseum's:" functional
~
adequacy," the Board is, in effect,rprecluding any inquiry into the bases for LILCO's proposal to'ush:the Coliseum as a moni-x t'oring and decontamination facility. f Indeed,,tiaken to it's-log-a a
ical.conclusios, the Board's ruling implies that if the Colise-
- '%\\.
um can.'" accommodate".the anticipated number.of evacuees ( e. g.,'
t if'there are sufficient: shower and toilet facilities and ade-4 g*quate parking capacity), the Board will fin'd'in LILCO's favor,
, irrespective of the Coliseum's location and distance.from the
'EPZ, whether there is' adequate access-to and'from the. Coliseum a - ~..or'.. sufficient facilities to which. evacuees can.be sent for.
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shelter after being monitored and decontaminated, and whether State _ law prohibits the use of the Coliseum proposed by LILCO.
Such a ruling defies both logic and law.
The Board's Order also affects the basic structure of this proceeding in a pervasive'and unusual manner.
By granting LILCO's motion to reopen and accepting its evidence into the record, yet barring the County's and State's evidence, the Board has' effectively prohibited the County and State from presenting facts relevant to LILCO's proposed use of the Coli-seum -- facts which demonstrate the inadequacy of LILCO's pro-posal.
Accordingly, any decision rendered by the Board will be based,upon an incomplete and one-sided factual record in LILCO's favor.
The NRC's rules -- and court decisions founded on constitutional principles -- bar any NFC ruling based on such'a one-sided record.
The Board should therefore reconsider its May 6 Order and prevent.the immediate and serious irreparable harm to the Coun-ty and State which has resulted from the decision to preclude their proffered testimony and to limit the reopened hearing to Contention 24.0 and the issue of whether the Coliseum is "func-tionally adequate" to serve as a relocation center.
In circum-stances such as are present'here, where the testimony can be.
admitted without affecting the Board's proposed schedule for litigation, there is no sound reason to await an initial deci-sion to remedy this harm.
Moreover, in the' view of the County and State, there is a substantial likelihood that the Board's decision would ultimately be determined on appeal to be incor-rect, and substantial delay and expense would have been unnecessarily incurred.
Therefore, the Board should reconsider and reverse its May 6 Crder.
B.
In the Alternative, the Board Should Reopen the Record on Contentions 24.N, 74 and 75 to Consider the Impact of LILCO's Latest Relocation Scheme on Previously Litigated Issues Should the Board refuse to reconsider and reverse its May 6 Order, the County and State hereby move to reopen the ev-identiary record in this proceeding for the purpose of admit-ting the testimony rejected by the Board.
The County and State submit that the Commission's traditional criteria for reopening are met in this case, and thus, should the Board not reverse its May 6 Order, the stricken testimony should nevertheless be accepted by the Board.
The criteria for reopening, as-noted by the Board's January 28 Order granting LILCO's motion to reopen, are as follows:
(1)
The motion must be timely; (2)
It must address a significant safety or environmental issue; and,.
e
(3)
It must be shown that a different result might be or might have been. reached had the newly i
proffered material been considered initially.
-January 28 Order, at 5.
LILCO may argue that because it moved'to reopen the record on January 11, some four months ago, this Motion is untimely.
This is not the case.
The County and State believed that when the Board granted LILCO's motion to reopen, the relocation cen-ter issues were to be the subject'of further evidentiary hear-ings conducted in a fair manner and permitting the parties a meaningful opportunity to challenge the adequacy of LILCO's proposed use of the Nassau Coliseum.
This was a reasonable as-sumption, given the Board's request that the parties, other than LILCO, submit the direct testimony of any witness whose testimony on the merits of LILCO's designation of the Coliseum
-was felt to be necessary.
See January 28 Order, at 9.
Never-theless, the County's and State's opinion on this' matter was ruled wrong by the. Board on May 6, when it rejected the Coun-
.ty/ State-testimony directly pertinent to LILCO's proposal.
This motion to reopen comes only one week later.
It is time-ly.li/
14/
LILCO's January 1985 motion to reopen was deemed-timely by this Board.
That motion was filed many months after LILCO
. learned of new facts that it wanted the Board to rely upon.
LILCO was excused for the delay based on its mia-taken assumption-that its new evidence could be considered (Footnote cont'd next page) s i
e v
Further, there is no danger here that any party has:been surprised or otherwise preju' diced.by this. Motion.
tae testimo-
. ny requested bylthe Board.was timely filed on February'19 and once it was rejected by the Board, the County and State prompt-ly_ moved for reopening.- Accordingly, there has been no dilatoriness-on'the part of the County and State.
And, with respect to the. remaining two criteria required for reopening (significant safety issue and that a different result might be=
- reached), there can be no-quastion that the relocation center issues raised iln the proffered' testimony adequately meet these criteria.15/. Indeed, LILCO's January 11 motion to reopen ad-
- mitted as much.
(Footnote cont'd from previous page) without a motion to reopen.
If the Board decides that'a motion to reopen is required by the' State and County, th,e
~
same timeliness rationale applies:
these-parties'were reaso'nable (if mistaken) in assuming that no motion to re-open was necessary.
When the' Board issued its ruling,that a-reopening motion was required (i.e.,
in barring the State and County testimony), the State and County acted promptly to file this Motion.
7 J/--For example,-a "different result" would.of course-be 1
required if.Mr. Campo's testimony is accepted to demon -
1 strate that LILCO has no congregate care centers.
LILCO
.then clearly would not comply with 10 CFR $ 50.47(b)(8) or-NUREG 0654,Section II.J.
And, clearly, the lack-of.such centers constitutes a significant safety issue -- if LILCO cannot' care for evacuees, the safety of the public is cer-tainly' imperiled.
l
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r
' _ ~
L
'Should the Board neither reconsider and reverse its May 6 Orderunor. grant the County / State request to reopen, it is re-j J
- quested that.the Board certify the issues raised in this Motion.
to the-Appeal Board.. In requesting such certification, the County.and State realize that the Commission's Rules of Prac-Ltice contain a general prohibition against interlocutory-ap-
' peals.
10 CFR $ 2.730(f); see, e.g., Commonwealth Edison Co.
-(Zion ~ Station, Units :1 and :2), ALAB-ll6, 6 AEC 258 (1973).
Nevertheless, there are exceptions to this prohibition.
- See, e. g._, 10 CFR $2.718(i).16/
For example, discretionary inter-locutory review is permitted wtan failure to resolve an issue-promptly would cause " detriment to the public interest or un-usual ~ delay or expense.". See 10 CFR $ 2.730(f); see also Public Service Co. of Indiana (Marble Hill), ALAB-405, 5~NRC 1190;'1192 (1977), and cases cited therein.
In addition, in-terlocutory appeals are appropriate when "a major or novel'
. question of policy; law or procedure is involved which cannot be resolved except.by the Commission or the Appeal Board and 16/
The Commission's Rules of Practice appear to contemplate f
- certification"'under 10 CFR $ 2.718(i).where a licensing board does not first-decide the disputed question, and
'" referral" under 10 CFR $ 2.730(f) when the board first rules-and then requests-interlocutory review.
The dis-tinction, however, appears to be unimportant.
See Southern California Edison Company (San Onofre),
-LBP-81-36, 14 NRC-691, 699, n.7 (1981).
E (
.f r
~
, -..-.~+:,-..---
+
., -. ~,, -,.. - -,
when the prompt'and final decision ~of the question ~is important for thefprotection of the public interest or to avoid undue I
delay or serious prejudice to the interests of a1 party."
10-
-CFR Part 2, App. A,-$ V(f)(4).
They are also, appropriate when 1the ruling in question affects "the basic: structure of the pro-ceeding in aLpervasive and unusual manner,"
Houston Lighting and-Power Co. (Allens Creek Station); ALAB-635, 13 NRC 309, 310
.(1981),;or " threatens.the party adversely affect'ed by it with
~immediate and serious irreparable impact" which, as a practical matter,- 'cannot be alleviated by a later appeal.
Houston Lighting.and Power Co.-(South Texas Project), ALAB-608, 12 NRC 168', 170 (1980).
The issues involved here meet all of the ab'ove standards, any.one'of'which is sufficient to justify appellate review of interlocutory rulings. lFor example, as demonstrated above, the public interest would clearly ~be served by prompt resolution of the issues now before the Board.
And clearly, under the cir-cumstan~ces at issue here; the'need to compile a full and com-plete evidentiary record.concerning LILCO's. proposed use of-the Nassau Coliseum is compelling -- and substantially in the pub-
.lic's' interest'.
Thus, certification in this case is entirely appropriate. N'
Respectfully submitted, Martin Bradley Ashare Suffolk County Department of Law H. Lee Dennison Building Veterans Memorial Highway Hauppauge, New York 11788 Herbert H.
Brown Lawrence Coe Lanpher Karla J.
Letsche Michael S. Miller KIRKPATRICK & LOCKHART 1900 M Street, N.W.
- Suite 800 Washington, D.C.
20036 Attorneys for Suffolk County "
E6 0?MAfd (f]M)
SpecialCounseltotheGovernor<[-
Fabian G.
Palomino Executive Chamber, Room 229 State Capitol Albany, New York 12224 Attorney for Mario M. Cuomo, Governor of the State of New York and (N)M)
Mary GUnd' rum Assistant Attorney General /
New York State Department of Law
.May 17,-1985 1
4 0
Tf UNITED STATES OF AMERICA
$ C NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing BEr4AY 20 #0:59 0FFICE OF SECRETARY
)
00CMETING & SERvict~
In the Matter of
)
BRANCH
)
-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 AND STATE OF NEW YORK MOTION FOR RECONSIDERATION OF MAY 6 ASLB. ORDER OR,
- IN THE ALTERNATIVE, MOTION.TO REOPEN THE RECORD ON LILCO'S RELOCATION CENTER SCHEME, have been served on the following this 17th day of May, 19 85, by U.S. - mail, first class, except as otherwise noted.
.Morton B. Margulies,- Chairmad' Edwin J. Reis, E s q.*
Atomic Safety and Licensing Board Bernard M.
Bordenick, Esq.
U.S. Nuclear Regulatory Commission U.S.
Nuclear Regulatory Com.
. Washington, D.C.
20555 Washington, D.C.
20555 Dr.-Jerry R. Kline*
W._ Taylor Reveley, III, Esq.#
' Administrative Judge Hunton & Williams Atomic' Safety and Licensing Board P.O. Box 1535 U.S. Nuclear Regulatory Commission 707 East Main Street Washington,'D.C'.
20555 Richmond, Virginia 23212 Mr. Frederick J.
Shon*
Ms. Donna D. Duer*
Administrative Judge Atomic Safety and Licensing L
Atomic-Safety and Licensing Board Board Panel U.S. Nuclear Regulatory Commission U.S.
Nuclear Regulatory Washington, D.C.
20555 Commission Washington, D.C.
20555 Edward M.
Barrett, Esq.
General Counsel Mr. Jay Dunkleberger Long Island Lighting Company New York State Energy Office 250 Old Country Road Agency Building 2
-Mineola, New York 11501 Empire State Plaza Albany, New York 12223 l
I i
i
Spence Perry, Esq.
Stephen B. Latham, Esq.
Associate General Counsel Twomey, Latham & Shea Federal Emergency Management Agency-P.O. Box 398 Washington, D.C.
20472 33 West Second Street Riverhead, New York 11901
- Mr. L. F. Britt Long: Island Lighting Company Ms. Nora Bredes Shoreham Nuclear Power Station Executive Director P.O. Box 628 Shoreham Opponents Coalition North Country Road 195 East. Main Street Wading River, New York 11792 Smithtown, New York 11787 Joel.Blau, Esq.
MHB Technical Associates 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 Veterans Memorial Highway
~
Hauppauge, New York 11788.
Fabian Palomino, Esq.#
Special Counsel to the
. Atomic Safety and Licensing Board Governor Panel Executive Chamber U.S. Nuclear. Regulatory Commission Room 229 i
Washington, D.C.
20555 State Capitol Albany,.New York 12224 Docketing and Service Section Office of-the Secretary Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Appeal Board 1717 H Street, N.W.
U.S.
Nuclear Regulatory Washington, D.C.
20555 Commission Washington, D.C.
20555 James B.
Dougherty, Esq.
3045 Porter Stree't, N.W.
Jonathan D.
Feinberg,'Esq.
Washington, D.C.
20008 Staff Counsel New York State Public Mr. Stuart Diamond Service Commission Business / Financial 3 Rockefeller Plaza
.NEW YORK TIMES Albany, New York 12223 229 W.
43rd Street New York, New York 10036 r
- s a
Stewart M. Glass, Esq.
Mary Gundrum, Esq.
Regional Counsel New York State Department Federal Emergency Management of Law Agency 2 World Trade Center, Rm. 4614 26 Federal Plaza, Room 1349 New York, New York 10047 New York, New York 10278 Mr. Gary J.
Edles Alan S. Rosenthal, Chairman Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Appeal Board U.S. Nuclear Regulatory Comm.
U.S. Nuclear Regulatory Comm.
Washington, D.C.
20555 Washington, D.C.
20555 Mr. Howard A. Wilber Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Comm.
Michael S. Miller Washington, D.C.
20555 KIRKPATRICK & LOCKHART 1900 M Street, N.W.,
Suite 800 Washington, D.C.
20036 DATE: May 17, 1985 By Hand By Federal Express i