ML20137B783

Memorandum & Order Denying Suffolk County & State of Ny 850225 Motion to Admit New Contention Re Whether Util Made Adequate Arrangements for Public Exposed to High Radiation Levels in Event of Accident.Served on 850821

ML20137B783
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	08/21/1985
From:	Margulies M Atomic Safety and Licensing Board Panel
To:	NEW YORK, STATE OF, SUFFOLK COUNTY, NY
References
CON-#385-296 OL, NUDOCS 8508220138
Download: ML20137B783 (8)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: Eo Morton B. Margulies, Chairman -

Dr. Jerry R. Kline g3 Mr. Frederick J. Shon A$p7 All:gg cc-EE$5r?EEca.

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In the Matter of ) Docket No. 50-322-0L

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LONG ISLAND LIGHTING COMPANY ) (Emergency Planning

) Proceeding)

(Shoreham Nuclear Power Sta' tion, )

Unit 1) ) August 21, 1985 I

SERVED AUG211985 MEMORANDUM AND ORDER DENYING SUFFOLK COUNTY'S AND STATE OF NEW YORK'S MOTION TO ADMIT NEW CONTENTION I. Introduction On February 25, 1985, Intervenors Suffolk County and New York State filed a motion pursuant to 10 CFR 2.714 to admit a new three-part contention in this emergency planning proceeding. The contention which the County and State seek to be admitted concerns whether the Long Island Lighting Company (LILCO) has made adequate arrangements for medical services for members of the public who might be exposed to high levels of radiation in the event of a radiological accident at the Shoreham nuclear plant. The regulation pertinent to this issue f e 10 CFR 50.47(b)(12), which states that a nuclear power plant emergency plan must include "[a]rrangements ... for medical services for contaminated injured individuals." The Commission's interpretation of this 8508220138 850821 PDR l

ADOCK 05000322 0 PDR Q

regulation explained that " arrangements" for those not physically injured, but exposed to high levels of radiation, could be satisfied by simply providing a list of available facilities capable of treating such persons. Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), CLI-83-10, 17 NRC 528, 530 (1983). In Guard v.

NRC, 753 F.2d 1144 (D.C. Cir.1985), the Circuit Court of Appeals for the District of Columbia Circuit vacated the Commission's interpretation of this regulation and remanded the issue to the Commission for further consideration. To date, the Commission has not redefined the meaning of section 50.47(b)(12). Intervenors, however, assert that their proffered medical facility contention raises issues now made litigable as a result of Guard.

On March 11,1985, LILC0 filed an answer to Intervenors' motion.

LILC0 asserted that Intervenors' motion was premature since-the mandate had not yet issued in Guard. LILC0's answer also included a request that the question of what would constitute adequate arrangements for medical treatment for members of the public exposed to radiation be-certified to the Commission and that the medical facility issues be severed from the other issues in the proceeding.

In its response of March 12, 1985, the NRC Staff (Staff) requested that the Board defer ruling on Intervenors' motion to admit a new contention until the Commission addressed the requirements of 50.47(b)(12). The Staff did not discuss the merits of whether the contention should be admitted, but requested permission to do so at a later date.

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On March 20, 1985, Intervenors filed a motion for leave to file a reply to LILC0's answer and the Staff's response. Their reply. addressed the issues of prematurity, certification, and severance raised in LILC0's answer.

The Staff's response to the Intervenors' motion for leave to file a reply was submitted on March 29, 1985. In this response the Staff reiterated its request that the Board defer ruling on Intervenors' motion until the Commissioi, acts in response to Gyard.

On May 16, 1985, the Commission issued a Statement of Policy on Emergency Planning Standard 10 CFR 50.47(b)(12), stating that the Comission believes that Licensing Boards ... may find that applicants who have met the requirements of Section 50.47(b)(12) as interpreted by the Commission before the Guard decision and who comit to full compliance with the Comission's response to the Guard remand meet the requirements of Section 50.47(c)(1) and, therefore, are entitled to a license conditional on full compliance with the Commission's response to the Guard remand.

50 Fed. Reg. 20893 (May 21, 1985). The Commission has also published for public comment a petition for rulemaking on this issue. 50 Fed. Reg,.

20799 (May 20, 1985). The petition requests that the Commission amend its emergency planning regulations to clarify that onsite and offsite emergency response plans need include arrangements for medical facilities only for persons who are both contaminated with radioactive material and physically injured in some other manner which requires emergency medical treatment. Id.

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On May 29, 1985, this Board received a letter from Staff enclosing a copy of the Commission's policy statement. The' letter indicated that LILCO would file a motion addressing the Commission's statement of policy, but to date the Board has received no such motion. Thus we have before us several requests from. the parties, many of which present issues that have been rendered moot; a court vacated interpretation of 50.47(b)(12); a petition for rulemaking on the subject; and a Commission policy statement advising us to look for an exception to the planning standards of 10 CFR 50.47(b). Tha shall first dispose cf the lesser procedural matters raised in the various filings before us, and then rule ,on the admissibility of Intervenors' proffered contention.

a) The Board grants Intervenors' March 20, 1985 motion for leave to file a reply to LILC0's answer and the NRC Staff's response.

As Intervenors correctly point out, LILC0's response does raise additional issues to which we allow Intervenors an opportunity to respond, and we have therefore considered their reply in reaching our conclusions.

b) We turn next to LILC0's answer, dated March 11, 1985, in which LILC0 urges " denial of the contention as premature since the mandate has not issued in the Guard case." Since the mandate has issued in Guard we find this argument moot.

c) The Board denies LILC0's request that we certify to the Commission the issue of how to interpret 10 CFR 50.47(b)(12). In light of the Commission's policy statement of May 16, 1985 and the petition for rulemaking we see no reason to certify the issue. The Commission is aware of the need for interpretation of the regulation or for further I

rulemaking, and appears, by its reference to the " limited period necessary" to respond to Guard, to envision a prompt resolution of the question of what constitutes adequate arrangements for medical treatment facilities. Thus we find that certification would serve no useful purpose in this instance.

d) LILC0 requests that the Board render a decision as soon as possible on the issues that have been tried and briefed, and reserve a decision on tha medical care issue.and any aspects of the relocation center issue that require further proceedings. The Board issued its Partial Initial Decision on Emergency Planning on April 17, 1985. The decision addressed all but the relocation center issues. One of the relocation center issues was litigated at a reopened hearing held in Hauppauge, New York on June 25 and 26, 1985, and our decision on all of the relocation center issues will be forthcoming. We therefore find LILC0's request for severance of the issues to be moot.

Having decided these preliminary matters we now address the Guard decision and subsequent developments.

II. Discussion The meaning of planning standard 10 CFR 50.47(b)(12) was first interpreted by the Commission in Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), CLI-83-10, 17 NRC 528 (1983). The Commission there concluded that the phrase " contaminated injured individuals" included those members of the public who were physically injured and radiologically contaminated, as well as those who were not physically injured but were seriously irradiated. I_d. at 530.

The Commission ruled that the standard requiring adequate medical E

arrangements for individuals who were exposed to dangerous levels of radiation but not otherwise injured would be met by the applicant providing a list of area facilities capable of treating such radiation exposed individuals. M. The Circutt Court of Appeals ' vacated this interpretation of 50.47(b)(12) in Guard v. NRC, 753 F.2d 1144 (D.C. Cir.

1985). In Guard the Court found that the Commission had not reasonably construed the 50.47(b)(12) phrase " arrangements ... made for medical services" when it found radiation exposed individuals without physical injury came within the protection of the regulation, but declared that a-mere list of treatment facilities constitutes adequate arrangements for

.such individuals. M. at 1146. In rem'nding a the matter to the Commission for further consideration consistent with the Guard decision, the Court appeared to allow the Commission wide latitude to determine the meaning of 50.47(b)(12), suggesting that Commission action might range from reconsideration of the phrase " contaminated injured individuals" to imposition of " genuine" arrangements for members of the public exposed to dangerous levels of radiation. M. The Commission has indicated that it is considering the issue and has implied, by its reference to the "brief period necessary to finalize a response to the recent Guard decision" [50 Fed. Reg. 20892 (May 21, 1985], that it will take prompt action.

We are thus faced with a situation in which the subject matter of the Intervenors' proffered contention awaits rulemaking or other generic action by the Commission. The Commission's May 20, 1985 publication for public comment of a petition for rulemaking [50 Fed. Rg . 20799 (May 20, i

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- 1985] further indicates that the Commission may be considering additional rulemaking on the issue of medical arrangements. The Appeal Board has ruled that " licensing boards should not accept in individual license proceedings contentions which are (or are about to become) the subject of general rulemaking by the Commission." Potomac Electric Power Co. (Douglas Point Station, Units 1 and 2), ALAB-218, 8 AEC 79, 85 (1974). One reason for this rulin' is that litigation of such contentions may result in duplicative proceedings. In the instant case we have the additional problem of the lack of a standard under.which we could anticipate meaningful litigation of the medical facilities issue.

On this basis we will follow Douglas Point and deny Intervenors' motion.

The Commission's statement of policy does not require that we take a different course of action. The content of the statement is only advisory in nature. We see nothing inconsistent between our decision here and the guidance offered by the Commission since our denial of Intervenors' motion will achieve a result similar to that contemplated by the Commission in its policy statement. Litigation of the question of what constitutes adequate arrangements for medical services for contaminated injured individuals, if warranted at all, must be deferred until the Commission has issued a rule or other generic guidance on the matter. LILCO will, of course, have to comply with the Commission's ,

final rule or guideline.

Finally, because we find Douglas Point controlling, we do not reach the question of whether Intervenors have met the criteria for late-filed

contentions. Nor do we decide LILCO's claim that the contention is overbroad.

Intervenors' motion to admit a new contention shall be denied.

ORDER Upon consideration of all of the foregoing, the Board hereby denies Intervenors' motion of February 25, 1985 to admit a new contention based on 10 CFR 50.47(b)(12).

FOR THE ATOMIC SAFETY AND LICENSING BOARD h -

Morton B. Mt.rgulies,UChairman ADMINISTRATIVE LAW JUDGE Dated at Bethesda, Maryland this 21st day of August, 1985.

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