ML20147D595

Confirmatory Memorandum & Order (Ruling on Lilco Motions for Summary Disposition of Contentions 1-8 & 10 & Board Guidance on Issues for Litigation).* Board Judgments Will Be Amplified in Written Opinion.Served on 880301

ML20147D595
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	02/29/1988
From:	Gleason J, Kline J, Shon F Atomic Safety and Licensing Board Panel
To:	LONG ISLAND LIGHTING CO.
References
CON-#188-5722 50-322-OL3-R2, OL-3, NUDOCS 8803040059
Download: ML20147D595 (5)

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00LKETED U5HRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

'88 MAR -1 All :02 ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: f0CKEOdc,bbE$i; BRANCH James P. Gleason, Chainnan Dr. Jerry R. Kline Mr. Frederick J. Shon SERVED MAR - 11988 In the Matter of Docket No. 50-322-OL-3 (Emergency Planning)

LONG ISLAND LIGHTING COMPANY l

) (ASLBP No. 50-322-OL3-R2)

(Shoreham Nuclear Power Station, Unit 1) February 29, 1988 CONFIRMATORY MEMORANDUM AND ORDER (Ruling on LILC0's Motions for Sumary Disposition of Contor.tions 1, 2, 4, 5, 6, 7, 8 and 10, and Board Guidance on Issues for Litigation)

The Board confirms herein decisions and guidance provided in a telephone conference with the parties in this proceeding.

1. The motions for sumary judgment on Contentions 1, 2, 4, 5, 6, 7, 8 and 10 filed by LILCO are denied. Written opinion will be forthcoming as soon as possible.

2. The Comission in CLI-86-13, in 10 C.F.R. 50.47(c)(1) and in comentary accompanying publication of that new regulation, has provided considerable guidance in cases where state and local governments decline to participate in emergency planning.

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3. Under the new regulation, the Board must predicate its judgment on whether LILCO's emergency plan can meet NRC regulatory and l803040059800229 R '

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criteria requirements on the fact that government officials--state and county--will produce a best efforts response to protect the public's health and safety.

4. There is a presumption that the State and County response will follow the LILC0 Plan, a presumption rebuttable only by timely evidence that the Governments will follow a different but adequate and feasible plan that can be relied on or by other evidence of like kind. This indicates that there are two courses that can be followed.

5. In attempting to properly manage this case, the Board will not pemit any further motions for sumary disposition to be filed on any of the remaining issues. l

6. The new regulation has the effect of casting the eight contentions remaining in a revised fom--prescinding from the legal authority question--to one resolving whether the LILC0 Plan with a best efforts or other response meets regulatory requirements.

7. The contentions should then be formulated to reflect the new emphasis so that the issue to be litigated ant resolved would read as follows in Contention 5.

Whether LILC0's emergency plan ind the best efforts response of the State and County governments, will satisfy regulatory requirements concerning the activation of sirens and the directing of emergency broadcast system messages.

Centention 6 would be formulated to read:

Whether LILCO's emergency plan and the best efforts response of the State and County governments will satisfy regulatory requirements concerning the making of j

decisions and official recommendations to the public on apprcpriate actions necessary to protect public health

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3 and safety. Each of the remaining contentions should be modified to read accordingly.

8. Assuming that LILCO's case is based, as we believe it alleges, on matters adjudicated or uncontested in the record, material facts previously accepted by the Board, other prior Board rulings, and relevant parts of Revision 9 to its emergency plan, and assuming questions raised by the Comission in CLI-86-13 have been addressed, a prima facie case will have been made that LILC0's burden of proof has been satisfied, that is, that LILC0's emergency plan supplemented by a best efforts response will meet the standard that adequate protective measures with respect to the contentions can and will be taken in the event of an emergency. And that consequently, there is reasonable assurance that public health and safety is not endangered by operation of the Shoreham facility. LILC0 will be required to cite the parts of the record which form the foundation of its case.

9. As indicated above, the parties will be required to address the questions raised by the Comission in CLI-86-13 which are adopted by the Board herein. These mainly raise relevant issues of time in which certain emergency actions will take place.

10. With the development of a prima facie case as conceptualized herein, the burden of going forward will then shift to Intervenors.

11. The ultimate burden of Intervenors will be to demonstrate that LILCO's emergency plan supplemented by a best efforts response does not meet the adequacy standards with respect to the matters at issue and that accordingly no reasonable assurance finding can be made.

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12. However, a lack of legal authority cannot be raised under the regulation as a response against LILC0's Plan, nor can simple protestations that the State and County will not use LILCO's Plan.

Acceptable rebuttals to the Plan must include positive statements of the projected behavior of the Governments. A determination to respond ad hoc would be acceptable only if accompanied by specification of the resources available for such a response, and the actions such a response could entail including the time factors involved. A failure on the part of the Governments to present a positive case for our analysis and evaluation could result in a finding of default and hence in an adverse ruling on the contention to which it applies.

No fair reading of the new rule or the statement of considerations that accompanied it can result in a conclusion that the Comission expected or would pennit its rule to be interpreted in such a manner as to lead to stalemate and indefinite delay in resolution of issues in this case or any other.

The Comission's rule states in paragraph 50.47(c)(1)(iii):

In making its determination on the adequacy of a utility plan, the NRC will recognize the reality that in an actual emergency, state and local governments will exercise their best efforts to protect the health and safety of the public. .

l The NRC will determine the adequacy of that expected response, ;

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in combination with the utility's compensating measures

.... (Emphasis added.)

It is clear from the foregoing that we are bound by regulation to i

j affirmatively determine the adeouacy of the expected response and that the obligation on us equally binds the parties to supply the critical information needed to make that determination in any future hearing if

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they want their views to be heard. It must be recognized that we have found in our Concluding Partial Initial Decision that it is not impossible "to fashion and implement an effective offsite emergency plan for the Shoreham Plant." PID at 427.

Any difference in wording between this Confirmatory Order and that used in the telephone conference referred to above is to be resolved in favor of this Order.

The judgments of the Board reflected herein will be amplified in our written opinion.

ORDERED.

THE ATOMIC SAFETY AND LICENSING BOARD AJames P. Gleason, Chairman s

ADMINISTRATIVE JUDGE IM prryR.Kline ADMINISTRATIVE JUDGE

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Fre3erick Jr 31ToKN F,

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l i C N l Dated at Bethesda, Maryland this 29th day of February,1988.

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