ML20137D668
| ML20137D668 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 11/21/1985 |
| From: | Bordenick B, Sherwin Turk NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#485-312 OL-3, NUDOCS 8511270121 | |
| Download: ML20137D668 (24) | |
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~E UNITED STATES OF AMERICA l- NUCLEAR REGULATORY COMMISSION ~83 bOV25 BEFORETHEATOMICSAFETYANDLICENSINGAPPEht/ BOARD In the Matter of )
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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-0L-3.
g' (Emergency Planning)
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-(Shoreham Nuclear Power Station, Unit 1) )
NRC STAFF'S BRIEF IN SUPPORT OF "LILC0'S BRIEF ON THE RELOCATION CENTER ISSUES" Sherwin E. Turk Deputy Assistant Chief Hearing Counsel Bernard M. Bordenick Counsel for NRC Staff s
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November 21, 1985 L
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In the Matter of
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L LONG ISLAND LIGHTING COMPANY Docket No. 50-322-OL-3
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(Shoreham Nuclear Power Station, Unit 1) )
NRC STAFF'S BRIEF IN SUPPORT OF "LILC0'S BRIEF ON THE RELOCATION CENTER ISSUES" Sherwin E. Turk Deputy Assistant Chief Hearing Counsel Bernard M. Bordenick Counsel for NRC Staff November 21, 1985
+
TABLE OF CONTENTS Page
- TABLE OF AUTHORITIES . . . . . . . . . . . . . . ... . . . . . 11 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . 2 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A. The Planning Requirement Imposed by the Licensing
- Board is Outside the Scope of the Admitted Contentions . . . 4 B. .The Requirement Imposed by the Licensing Board is Not Clearly Addressed by the Commission's Regulations or Regulatory Guidance . . . . . . . . . . . . . . . . . . . . 11 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 e
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i l-TABLE OF CITATIONS Page ADMINISTRATIVE DECISIONS Commission Southern California Edison Co. (San Onofre Nuclear Generating
- Station, Units 2 and 3), CET-83-10, 17 NRC 528 (1983) . . . . 14
- Atomic Safety and Licensing Appeal Board Consolidated Edison Co. of New York (Indian Point Nuclear Plant, Units 1, 2, and 3), ALAB-319, 3 NRC 188 (1976) ... 9 Niagara Mohawk Power Co. (Nine Mile Point Nuclear Station, Unit 2), ALAB-264, 1 NRC 347 (1975) . . . .......... 11 Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), ALAB-455, 7 NRC 41 (1978) . . . . . . . . 11 Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), ALAB-819, 22 NRC (slipop.)(Oct. 22, 1985) . . . 12 Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-422, 6 NRC 33 (1977) . . . . . . . . . . . 11 I
Virginia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-491, 8 NRC 245 (1978) . . . . . 14 Atomic Safety and Licensing Board Cincinnati Gas & Electric Co. (Wm. H. Zimmer Nuclear Power Station, Unit 1), LBP-82-48, 15 NRC 1549 (1982) . . . . . . 9 Duke Power Co. (Catawba Nuclear Station, Units 1 & 2),
. LBP-84-37, 20 NRC 933 (1984) . . . . . . . . . . . . . . . . 9 Long Island Lighting Co. (Shoreham Nuclear Power Station,
. Unit 1), LBP-85-12, 21 NRC 644 (1985), aff'd in part on other grounds, ALAB-818, 22 NRC (October 18, 1985) . . 2, 3, 5, 8 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-85-31, 22 NRC 410 (August 26, 1985) . . . . . . . passim Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), LBP-81-59, 14 NRC 1211 (1981) . . . . . . . . . . 9
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. REGULATIONS 10 C. F. R. Part 50,~ Ap pendix E . . . . . . . . . . . . . . . . . 12 !
10 C.'F.R. Part 50,' Appendix E, 5 IV.E . . . . . . . . . . . . . 12 1.
10fC.F.R. l 2.760a . . . . . . . . . . . . . . . . . . . . . .9 10 C.F.R. 5 2.762 . . . . . . . . . . . . . . . . . . . . . . . .
2
. 10 C.F.R. 5 50.47(b) . . . . . . . . . . . . . . . . . . . . . . 12 I'0 C.F.R. 9 50.47(b)(10) . . . . . . ............. 12
, MISCELLANEOUS
" Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in-Support of r ' Nuclear Power Plants, NUREG-0654/ FEMA Rep. 1, Rev. 1 (1980) . 11, 12, 4 13, 14
- Statement of Consideration, 44 Fed. Reg. 67,088(1979)..... 9 UNPUBLISHED LICENSING BOARD ORDERS s
Memorandum and Order (Reopening of the Record), dated i'ay ; 6, 198 5 . . . . . .................... 5 T
Memorandum and Order Ruling;on_ Motion of Suffolk County
.and State of New York .for Reconsideration and Other Relief, dated June 10, 1985 . .-. . . . . . . . . . . . . . . 5 i
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UNITED STATES OF AMERICA N'Th[S NUCLEAR REGULATORY COMMISSION '83 M]?pg BEFORE THE ATOMIC SAFETY AND LICENSING APdE'ACB0ARD I'O/
k',h ' , 'A In the Matter of
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. LONG ISLAND LIGHTING COMPANY Docket No. 50-322-0L-3 (Shoreham Nuclear Power Station, )
Unit 1) )
NRC STAFF'S BRIEF IN SUPPORT OF Q "LILC0'S BRIEF ON THE '!
RELOCATION CENTER ISSUES" On October 7, 1985, Applicant Long Island Lighting Company ("LILC0")
filed a brief 1/ ni support of its appeal from the Licensing Board's " Con-1 cluding Partial Initial Decision on Emergency Planning" ("CPID"), issued on August 26, 1985. 2/ Therein, LILC0 appeals from the Licensing Board's
! requirement that, in addition to planning for the number of evacuees who are likely to seek monitoring and shelter, LILCO must estimate and plan s
for the number of evacuees who are likely to come to its designated relo-l cation center for radiological monitoring only (App. Br. at 1). LILC0 argues that the Licensing Board's decision should be reversed because
. the requirement imposed by the Board (1) is outside the scope of issues "
l l
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-1/ "LILC0's Brief on the Relocation Center Issues", dated October 7, 1985 (hereinafter referred to as " App. Br.").
-2/ Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
LBP-85-31, 22 NRC 410 (August 26,1985).
l
O admitted for litigation in this proceeding, and (2) is outside the scope of NRC regulations and regulatory guidance.
Pursuant to 10 C.F.R. 6 2.762, the NRC Staff (" Staff") herewith files its.brief in response to LILC0's appeal. For the reasons more fully set forth below, the Staff supports LILC0's appeal on the grounds that the requirement imposed by the Licensing Board is outside the scope of the issues admitted for litigation in this proceeding.
STATEMENT OF THE CASE The Staff has reviewed LILC0's description of the procedural back-ground of the reltcation center issues in this proceeding (App. Br. at 2-13), and is in general agreement with that description. Accordingly, the procedural background of this proceeding is not reiterated here, except for the following-brief summary.
After evidentiary hearings on offsite emergency planning issues had been concluded, the Licensing Board expressed its view that a void existed in the record as to the identity and general adequacy of the relocation center which would be utilized in the event of an evacuation.
Subsequently, on April 17, 1985, the Licensing Board issued its Partial Initial Decision on offsite emergency planning issues. 3/ Therein, the Board expressly declined to issue a decision on any of the five admitted
- contentions concerning relocation center issues (Contentions 24.0, 24.P.
-3/ Long Island Lichting Co. (Shoreham Nuclear Power Station, Unit 1),
LBP-85-12,21BRC644(1985), aff'd in part on other grounds, ALAB-818, 22 NRC (October 18, 1985).
~
74, 75, and 76), stating as follows:
The Board does not address the contentions con-cerning relocation centers in this Partial Initial Decision. When the record is completed on the matter of the relocation center, the unresolved contentions will be reviewed and will become part of the Final Initial Decision to be issued.
. (LBP-85-12,21NRCat827).
Subsequently, following LILC0's designation of the Nassau County Memorial Coliseum (Coliseum) as its " reception" center, the record was reopened (on LILC0's motion) to consider the general adequacy of the Coliseum as a relocation center. Evidentiary hearings were held on this issue in June 1985, leading to the issuance of the Licensing Board's CPID on August 26, 1985. LILC0 filed a " Notice of Appeal" (" Notice") SI from the CPID and its supporting brief, on September 5 and October 7, 1985, respectively.
1 ARGUMENT LILC0 indicates that the " essence" of its disagreement with the
- Licensing Board concerns the following statement in Finding X.A.2 of the CPID:
. 4/ In its Notice of Appeal, although no longer required to do so by NRC regulation, LILC0 identified five specific exceptions to the CPID. Of these, three exceptions related to the relocation
. center issues, and two exceptions related to the Board's finding a lack of coordination between LILCO and Suffolk County and the State of hew York. LILCO's brief on appeal does not address the Board's coordination findings, presumably in reliance upon LILCO's prior assertion that "the[se] matters have already been covered in the briefing and argument of LILCO's pending appeal of Con-tentions 1-10 and 92" (Notice, at 4). This matter is further discussed infra, at n.23.
1
. . 1
The maximum population of the EPZ is 160,000, thus
~ LILC0's planning is based on a maximum of 32,000
-seeking shelter.. LILC0 did not justify how this number could be related to the number of persons who might seek monitoring. The Board finds that the number of persons expected to seek shelter in the event of a disaster is not necessarily the same as the number of persons who might seek monitoring in the event of a radiological accident.
(App. Br. at 13, referring to LBP-85-31, 22 NRC at 417). In effect, LILC0 appeals from the Licensing Board's requirement that LILC0 include in its relocation center planning basis the anticipated number of EPZ evacuees who are likely to go to the Coliseum for monitoring purposes only. For the reasons set forth below, the Staff is of the view that the CPID, in this regard, is in error.
A. The Planning Requirement Imposed by the Licensing Board Is Outside the Scope of the Admitted Contentions The Licensing Board imposed the planning requirement at issue here as a result of its consideration of Contention 24.0. (See Findings X.A., X.A.1 and X.A.2, 22 NRC at 415-19). Contention 24.0, however, does not address this issue. As admitted for litigation, Contention 24.0 reads as follows:
The Plan designates Suffolk County Community College as the relocation center to be used by
- evacuees from eight of the 19 zones in the EPZ (zones A-E, H-J). LILC0 estimates the population of these zones to be 18,599 (26,574 in the summer).
- (See Plan, Appendix A at IV-75 to IV-162). Suffolk County Community College is an entity of the Suffolk County government. LILC0 has no agreement with Suffolk County to use Suffolk County Community College as a relocation center. Furthermore, pursuant to Suffolk County Resolution No. 456-1982 and Resolution No. 111-1983, the Suffolk County Community College will not be available for use in implementing the LILC0 Plan. Therefore, there is
c no relocation center designated for a significant portion of the anticipated evacuees. Thus, the proposed evacuation of zones A-E and H-J cannot and will not be implemented.
Long Island Lighting Co. (Shareham Nuclear Power Station, Unit 1),
LBP-85-12, 21 NRC 644, 979 (1985). On its face, this contentior.
challenges the fact that the relocation center which LILC0 had desig-nated for portions of the EPZ was not available for its intended use.
Nowhere, however, does Contention 24.0 challenge the planning basis utilized by LILC0~ in selecting its relocation center, or the general adequacy of such a center.
As noted by LILC0 (App. Br. at 15), after LILC0 had designated the Coliseum as its proposed reception center, the record on Contention 24.0 was reopened on the narrow issue of whether the Coliseun is " function-ally adequate to accommodate the general evacuees that can be anticipated resulting from a radiological emergency at Shoreham.* 5/ The Licensing Board stated that "[t]he number of general evacuees that can be expected to use a relocation center has already betn litigated and that subject willnotbereheard".5/ Nowhere did the Licensing Board indicate that the reopened issue to be considered under Contention 24.0 included the question of whether LILC0 had utilized a proper planning basis for its 4
-5/ See Tr. 15,843-844 (Administrative Judge Margulies); " Memorandum and Order (Reopening of the Record)", dated May 6, 1985, at 3; and
" Memorandum and Order Ruling on Motion of Suffolk County and State of New York for Reconsideration and Other Relief," dated June 10, 1985, at 2.
6/ " Memorandum and Order (Reopening of the Record)", dated May 6, 1985, at 4; cf. id. , at 6.
designated relocation center.1/ In sum, neither before nor after the record was reopened did Contention 24.0 include the question of whether LILC0 was required to plan for evacuees who might seek monitoring only, and the Licensing Board erred in considering this issue in connection ,
with Contention 24.0. 8/
Arguably, even if the Licensing Board erred in addressing this issue in connection with Contention 24.0, it is possible that the issue was properly within the scope of some other admitted contention, and -
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-7/ The Intervenors have cited certain evidentiary rulings by the Licensing Board, issued during the course of Intervenors' cross-examination of LILC0's witnesses, in support of the view that LILC0 should have known that the Board intended to consider this issue as part of Contention 24.0. -See "Suffolk County, State of New .
York, and Town of Southampton Trief in Opposition to LILC0's Brief on the Relocation Center Issues" (hereinafter referred to as " Int.
Br."), dated November 12, 1985, at 10-12. Even if the Intervenors are correct in asserting that the Board's evidentiary rulings sig-naled its determination to consider this issue within the scope of Contention 24.0, the Staff submits that those rulings were insuf-ficient to afford reasor.able notice of the Board's intent. Rather, in the absence of a clear statement of intent by the Board, the parties were entitled to rely upon the explicit delineation of the contention, with respect to which their direct testimony in the proceeding had already been fashioned.
! -8/ In argument before the Board at the reopened evidentiary hearings on Contention 24.0, Counsel for Suffolk County asserted, "[w]e never litigated the the number of evacuees that would go to Nassau l
Coliseum for monitoring and decontamination because the Nassau Coliseum was not known to anyone other than LILC0 prior to the l
close of the record last August." Tr. 15,973 (Miller). While the County thus conceded that, prior to the record reopening, it had not litigated the planning basis for the number of evacuees to be monitored only, it has not explained satisfactorily why it failed to question LILC0's planning basis for the other relocation centers which LILC0 had previously designated, or why it failed to ,
litigate LILC0's general planning basis without regard to any spe-cific relocation center. In our view, the reason for this failure is simply that the Intervenors had never previously perceived this I' issue to be within the scope of the admitted contentions.
l
e that the Board properly considered the issue. In this regard, the proposed findings of fact filed by the Intervenors offer considerable insight as to their perception of the relevance of this issue vis a_ vis their admitted contentions. To be sure, the Intervenors did address this issue in their proposed findings on the reopened relocation center issue, under Contention 24.0 EI -- notwithstanding the fact that the issue clearly was not within the scope of the reopened hearings on that contention. El Of particular interest, however, is the fact that, in addressing this matter, the Intervenors repeatedly cited one of their previously filed proposed findings (Proposed Finding 1 642), EI which was specifically addressed to Contention 75. El That contention asserts:
The LILC0 Plan provides no estimates of the number of evacuees who may require shelter in a relocation center, and the Plan fails to demonstrate that each such facility has adequate space, toilet and shower facilities, food and food preparation areas, drinking water, sleeping accommodations and other necessary facilities. Accordingly, there is I no assurance that the relocation centers designated by LILC0 will be sufficient in capacity to provide necessary services for the number of evacuees that will require them. Thus, LILC0 fails to comply with l NUREG-0654 55 II.J.10.g and II.J.12.
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1/ "Suffolk County and State of New York Proposed Findings of Fact and Conclusions of Law on Reopened Relocation Center Issues," dated July 15, 1985, 125, at pp. 27-28.)
M / It is not unlikely that the Licensing Board improperly included this issue in its discussion of Contention 24.0 based upon the Intervenors' having included this issue in their proposed findings on reopened Contention 24.0.
H / "Suffolk County and State of New York Proposed Findings of Fact and Conc.'usions of Law on Offsite Emergency Planning," dated October 26, 1984, at p. 431.
f M / See id., at pp. 430-432.
9 LBP-85-12, supra, 21 NRC at 1021 (1985) (emphasis added). As is clear -
from a reading of Contention 75, that contention addresses LILC0's util-ization of a planning basis for evacuees who might seek shelter in the congregate care areas of a relocation center, ASI and explicitly addresses a list of amenities which might be required at the relocation center in order to provide adequate shelter to those persons. Contention 75 does not address the issue of planning for evacuees who might seek monitoring only.
While it might be argued that this issue is implicitly comprehended within the scope of Contention 75, any such assertion is amply disposed of by the Licensing Board's own interpretation of Contention 75. Thus, ,
in its CPID, the Licensing Board stated as follows:
Contention 75 asserts that there is no assurance j that the relocation centers designated by LILC0 will be of sufficient capacity to provide necessary services for the number of evacuees that would require them. The Board understands this contention to challenge the adequacy of congregate care centers l that have been designated by the Red Cross, and not l of the Coliseum, which we addressed under Contention
'24.0. We consider this contention to challenge the l adequacy of designated facilities to serve the needs of evacuees seeking shelter at congregate care cen-ters, and the ability of the congregate care centers
- to collectively shelter the number of evacuees stated in the planning basis.
13/ LILC0 has designated separate facilities to provide the " congregate care" and " reception center" capabilities required of relocation centers.
22NRCat420(emphasisadded).14/
i In sum, prior to the Licensing Board's issuance of its CPID,-
the parties had not been on notice that the Board intended to address, i
within the scope of either Contention 24.0 or Contention 75, the issue of planning for evacuees who might seek monitoring only. J5/ Further, as
- . . 14/ Indeed, the CPID accepts LILCO's planning basis of 32,000 persons, with respect to persons who might be expected to seek shelter and other services at the relocation center
The Board accepts LILCO's planning basis of 32,000 evacuees-as reasonable, because it is based on prior disaster experience and because the Intervenors have brought forward no contradictory evidence that would
- lead us to believe that planning basis is seriously underestimated. Further, we conclude that the plan-
'- ning basis used by LILC0 is conservative and that l'
up to 48,000 persons could be sheltered within the facilities that have been identified by the Red 4
Cross. This is clearly an adequate margin above the planning basis for any uncertainty that exists
'= as to.the actual number of possible evacuees who may need assistance if an accident occurs at Shoreham.
CPID, 22 NRC at 422. LILCO utilized a planning basis of_20 percent of the total EPZ population. See 22 NRC at 421. The general -
acceptability'of a 20 percent planning basis has been discussed in other NRC proceedings. See Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), LBP-84-37, 20 NRC 933, 956 (1984); Cincinnati Gas
& Electric Co. (Wm. H. Zimmer Nuclear Power Station, Unit.1),
LBP-82-48, 15 NRC 1549, 1589 (1982); Metro)olitan Edison Co. (Three
- Mile Island Nuclear Station, Unit No. 1), .BP-81-59, 14 NRC 1211, 1652(1981).
15/ Of- course, even if-an issue is not within the scope of an admitted contention,_the issue can still be considered by a Licensing Board
. in an operating license proceeding, pursuant to the Board's sua sponte authority under 10 C.F.R. 9 2.760a. However, the issue must constitute a " serious safety, environmental, or common defense and security issue," and the Board's power to raise a sua sponte issue is to be used sparingly. See Consolidated Edison cot of New York
- (Indian Point Nuclear Plant, Units 1, 2, and 3), ALAB-319, 3 NRC 188, 190 (1976); Statement of Consideration, 44 Fed. Reg. 67,088 (1979).
demonstrated by LILC0 in its brief on appeal (App. Br. at 16-18), none of the other contentions admitted for litigation in this proceeding E/
raised the issue of planning for ar.ticipated evacuees who might seek monitoring only. El Finally, as noted by LILC0 (App. Br. at 19-20), a substantially similar contention (Contention 76) was ruled inadmissible by the Licensing Board, providing further reason for the parties not to
. have anticipated that the issue of planning for evacuees who might seek monitoring only was to be litigated in this proceeding.
In this regard, the Appeal Board held long ago that the parties to an adjudicatory proceeding rrust have " fair notice" as to the matters at issue in the proceeding:
[W] hen the Board (or any administrative agency) elects to decide a case on a basis different from that on which it was brought and tried, it has a concomitant obligation to bring this fact to the
---16/ The other admitted contentions are Contentions 24.P, 74, and 77.
Contention 24.P addresses the services of the American Red Cross, and does not include monitoring or decontamination issues. Conten-tion 74 asserts that three (former) relocation centers are located too close to the EPZ. Contention 77 relates to the sensitivity of a particular type of monitoring instrument. These contentions are set forth in full by LILC0 (App. Br. at 2-4).
E/ In our view, the record references cited by the Intervenors in their proposed findings which arguably pertain to this issue are irrelevent to the contentions which had been admitted for liti-
. gation. The Staff shares LILC0's perception (App. Br. at 20-21) that, to the extent this issue was raised at all in the hearings, it was raised only in passing. Further, because this issue was
. not reasonably comprehended within the contentions which had been admitted for litigation, the witnesses upon whose testimony the Intervenors' proposed findings rely could not have been aware that the Board might make a finding with regard to that issue. That testimony, therefore, does not provide firm support for the Board's finding that LILC0's plan improperly fails to plan for anticipated evacuees who might utilize the relocation center for monitoring purposes only.
9 attention of the parties before it and to afford them a fair opportunity to present argument and, where appropriate, evidence on the new issues.
The cases hold it to be "well settled that an agency may not change theories in midstream without giving respondents reasonable notice of the change."
Niagara Mohawk Power Co. (Nine Mile Point Nuclear Station, Unit 2),
- ALAB-264, 1 NRC 347, 354 (1975). Accord, Northern States Power Co.
(Prairie Island Nuclear Generating Plant, Units 1 & 2), ALAB-455, 7 NRC 41, 55-56 (1978); Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-422, 6 NRC 33, 42 (1977). In the Staff's view, the Licensing Board's adoption of an issue outside the scope of the admitted contentions, and its resulting failure to give reason-able notice that it contemplated imposing a requirement on LILC0 to plan for anticipated evacuees who might seek monitoring only, deprived the parties of a reasonable opportunity to address the need for such a requirement with evidence or legal argument. The Licensing Board's determination in this regard should be reversed.
B. The Reouirement Impcsed By the Licensing Board Is Not Clearly Addressed By the Commission's Regulations or Regulatory Guidance.
The need to plan for anticipated evacuees who might seek to util-ize relocation centers for monitoring purposes only is not explicitly
[ addressed in NRC regulations or regulatory guidelines. 18/ To this D
--18/ Regulatory guidance with respect to the Commission's emergency plan-ning regulations is principally contained in NUREG-0654, " Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants, "NUREG-(F0OTNOTE CONTINUED ON NEXT PAGE) i i
., m - - - . - , -
extent, the Staff is in general agreement with the views expressed by LILC0 (App. Br. at 23-25).
10 C.F.R. 6 50.47(b) sets out 16 planning standards for emergency plans. The standard which appears to be most clearly relevant to the issue of monitoring evacuees is contained in 10 C.F.R. 5 50.47(b)(10).
,' That provision reads as follows:
. (10) A range of protective actions have been developed for the plume exposure pathay EPZ for emergency workers and the public. Guidelines for the choice of protective actions during an emergency, consistent with Federal guidance, are developed and in place . . . .
This standard does not explicitly provide a basis for imposing a require-ment that an applicant plan for evacuees who might utilize the relocation center for monitoring purposes only. Likewise, nothing in Appendix E to 10 C.F.R. Part 50 provides direct support such a requirement. El Similarly, NUREG-0654 does not provide an explicit basis for the re-quirement imposed by the Licensing Board. The most relevant provisions (F0OTNOTE CONTINUED FROM PREVIOUS PAGE) 0654/ FEMA Rep. 1, Rev. 1 (1980). NUREG-0654 provides joir' UMA/
NRC guidance and upgraded acceptance criteria, and is intended "to provide a basis for NRC licensees, State and local go.arnments to develop radiological emergency plans and improve emergency pre-paredness." NUREG-0654, Foreword, at (1). NUREG-0654 serves as guidance for the Staff's review and does not prescribe regulatory
, requirements. Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 NRC (slip op., at 38)
(October 2?,1985).
H/ 10 C.F.R. Part 50, Appendix E, f IV.E, " Emergency Facilities and Equipment," requires emergency planners to provide " equipment at the site for personnel mo.itaring" and " facilities and medical
, supplies at the site for decontamination of onsite individuals."
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in NUREG-0654 appear to be contained in Criteria J.10.g J.10.h. and J.12. Criterion J.10.g provides that an emergency response organiza-tion's' plan should include "means of relocation"; Criterion J.10.h pro-vides that relocation centers are to be situated "in host areas which are at least 5 miles, and preferably 10 miles, beyond the boundaries
[ off the plume exposure emergency planning zone"; and Criterion J.12
- . provides that
Each organization shall describe the means for registering and monitoring of evacuees at relo-cation centers in host areas. The personnel and equipment available should be capable of monitoring within about a 12 hour1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> period all residents and transients in the plum i EPZarrivingatrelocationcenters.f0fXposure !
Although NUREG-0654, 6 II.J.12, indicates that emergency planners should be prepared to register and monitor, within about 12-hours, all EPZ evacuees who arrive at the relocation centers, NUREG-0654 does not ex-plicitiy state that planning is required for EPZ evacuees who might seek monitoring only. D While the Licensing Board's construction of NUREG-0654
-20/ NUREG-0654 also provides explicit criteria for monitoring emergency personnel. See NUREG-0654, Criteria II.K.
-21/. The Staff does not share LILCO's view that FEMA's testimony pro-vides support for the proposition that emergency planners need not consider EPZ evacuees who might utilize a relocation center for monitoring purposes only (see App. Br. at 25).
At the same time, the Staff disagrees with the Intervenors' corre-sponding assertion (Int. Br. at n.8) that FEMA construes NUREG-0654 to_ require such planning. In our view, the FEMA testimony relied upon by the'Intervenors merely reiterates the guidance of NUREG-0654, Criterion J.12, discussed in the text above. See Tr. 15,995 (Keller). Indeed, Mr. Keller's pre-filed testimony indicated that (F0OTNOTE CONTINUED ON NEXT.PAGE)
is not unreasonable, El the Staff submits that the Licensing Board erred in ' reaching a decision on this basis, in view of the fact that the issue had not properly been admitted for litigation or raised sua sponte by the Board. El l
~
CONCLUSION
..- The planning requirement imposed on LILC0 by the Licensing Board is not within the scope of_ any admitted contention, and was not properly raised by the Board sua sponte. . Assuming that the Licensing Board i
l l
(FOOTNOTE CONTINUED FROM PREVIOUS PAGE)
- FEMA has found the Coliseum "to be a suitable facility for LILCO to use as a. reception center," subject to FEMA's review of details to be fonnally included in the LER0 Plan and the conduct of an
- exercise. See " Affidavit of Thomas E. Baldwin, Joseph H. Keller, Roger B. Kowieski and Philip H. McIntire", ff. Tr. 15,991, 11 6 and 7, at 2.
22/ Cf. Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), CLI-83-10, 17 NRC 528, 536 n.12 (1983)
("NUREG-0654 . . . requires relocation centers capable of regis-
.tering and monitoring all residents and transients in the plume exposure EPZ (Planning Standard J.12)").
-23/ The Staff expresses no view here as to LILCO's exceptions from the CPID which are not addressed in LILCO's brief on appeal, such as its Exceptions 4 and 5 concerning the Board's findings on the
, lack of coordination between LILCO and the State and County. See n.4, suara. It should be noted that the Appeal Board is not bound by LIEWs perception that the CPID's findings and conclusions on the coordination issue have been addressed sufficiently on LILCO's prior appeal, and the Appeal Board may reach further determinations with. regard to these issues in deciding LILCO's instant appeal.
Cf. Virginia Electric and Power Co. (North Anna Nuclear Power 3tation, Units 1 and 2), ALAB 491, 8 NRC 245, 247 (1978).
reasonably construed NUREG-0654, the Board erred in failing to afford the parties a reasonable opportunity to address the issue with evioence or legal argument. For these reasons, as more fully set forth above, the 1.icensing Board's decision in this regard should be reversed.
Respectfully submitted, IN 0 Sherwin E. Turk Deputy Assistant Chief Hearing Counsel hb d Bernard M. Bordenick Counsel for NRC Staff Dated at Bethesda, Maryland this 21st day of November, 1985 S
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )
)
. LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3
,' ) (Emergency Planning)
(Shoreham Nuclear Power Station, )
Unit 1) )
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S BRIEF IN SUPPORT OF 'LILCO'S BRIEF ON THE RELOCATION CENTER ISSUES'" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 21st day of November, 1985.
Alan S. Rosenthal, Esq., Chairman
- Gary J. Edles, Esq.*
-Atomic Safety and Licensing Appeal Atomic Safety and Licensing Appeal Board Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Howard A. Wilber* Gerald C. Crotty, Esq.
Atomic Safety and Licensing Apoeal Ben Wiles, Esq.
Board Counsel to the Governor U.S. Nuclear Regulatory Commission Executive Chamber Washington, D.C. 20555 State Capitol Albany, NY 12224 Morton B. Margulies, Chairman
- Fabi6r G. Palomino, Esq.
Administrative Judge .
Special Counsel to the Governor
. Atomic Safety and Licensing Board Executive Chamber U.S. Nuclear Regulatory Commission State Capitol
- Washington, D.C. 20555 Albany, NY 12224 Dr. Jerry R. Kline* Jonathan D. Feinberg, Esq.
Administrative Judge New York State Department of Atomic Safety and Licensing Board Public Service U.S. Nuclear Regulatory Commission Three Empire State Plaza Washington, D.C. 20555 Albany, NY 12223
- , - , - , ,-r,,,m- - , - , - - - - - - , - - -
W. Taylor Reveley III, Esq. _
Mr. Frederick J. Shon* Hunton & Williams
- Administrative Judge 707 East Main Street Atomic Safety and Licensing Board P.O. Box 1535 U.S. Nuclear Regulatory Comission Richmond, VA 23212
-Washington, D.C. 20555 Herbert H. Brown, Esq.
Stephen B. Latham, Esq. Lawrence Coe Lanpher, Esq John F. Shea, III, Esq. Karla J. Letsche, Esq.
. Twomey, Latham & Shea Kirkpatrick & Lockhart Attorneys at Law 1900 M Street, N.W.
P.O. Box 398 8th Floor 33 West Second Street Washington, D. C. 20036 Riverhead, NY 11901 Donna Duer, Esq.
Atomic Safety and Licensing Attorney Board Panel
- Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Panel Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Atomic Safety and Licensing
. Appeal Board Panel
- Dr. Monroe Schneider U.S. Nuclear Regulatory Comission North Shore Committee Washington, DC 20555 P.O. Box 231 Wading River, NY 11792 Docketing and Service Section* Stewart M. Glass, Esq.
Office of the Secretary Regional Counsel U.S. Nuclear Regulatory Commission Federal Emergency Management Washington, D.C. 20555 Agency 26 Federal Plaza Spence Perry, Esq. Room 1349 Associate General Counsel New York, NY 10278 Federal Emergency Management Agency Room 840 Robert Abrams, Esq.
500 C Street, S.W. Attorney General of the State Washington, D.C. 20472 of New York Attn: Peter Bienstock, Esq.
Edward M. Barrett, Esq. Department of Law
, General Counsel State of New York Long Island Lighting Company Two World Trade Center 250 Old County Road Room 46-14
. Mineola, NY 11501 New York, NY 10047
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MHB Technical Associates Ms. Nora Bredes 1723 Hamilton Avenue- Shoreham Opponents Coalition Sune K.. 195 East Main Street San Jose, CA 95125 Smithtown, NY 11787 v.
Hon. Feter Cohalan Suffolk County Executive County Executive / Legislative Bldg.
Veteran's Memorial Highway
. Hauppauge, NY 11788 Martin Bradley Ashare, Esq.
- Suffolk County Attorney Mr. Jay Dunkleberger H. Lee Dennison Building New York State Energy Office Veteran's-Memorial Highway Agency Building 2 Hauppauge, NY 11788 Empire State Plaza Albany, New York 12223 Chris Nolin Mr. Robert Hoffman New York State Assembly Ms. Susan Rosenfeld Energy Committee Ms. Sharlene Sherwin 626 Legislative Office Building P.O. Box 1355 Albany, NY 12248 Massapequa, NY 11758 L_
Sherwin E. Turk Deputy Assistant Chief Hearing Counsel e
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