ML20148G149
| ML20148G149 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 03/22/1988 |
| From: | Bachmann R, Lisa Clark NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20148G123 | List: |
| References | |
| OL-3, NUDOCS 8803290049 | |
| Download: ML20148G149 (9) | |
Text
03/22/88 l
DOCKETED v5NHC UNITED STATES OF AMERICA k
NUCLEAR REGULATORY COMMISSION 88 mR 25 P6:15 i
BEFORE THE ATOMIC SAFETY AND LICENSINGF BOARDCf t.t/
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In the Matter of
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LONG ISLAND LIGHTING COMPANY
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Docket No. 50-322-OL-3
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(Emergency Planning)
(Shoreham Nuclear Power Station,
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Unit 1)
)
NRC STAFF RESPONSE TO INTERVENORS' MOTION FOR RECONSIDERATION OF THE BOARD'S RULING ON LILCO'S MOTION FOR
SUMMARY
DISPOSITION OF THE HOSPITAL EVACUATION ISSUE I.
INTRODUCTION By Motion filed on March 7,
1988, O intervenors asked the U
Licensing Board to recc,nsider a Order of February 24, 1988.
Intervenors allege that three aspects of the Board's Order are erroneous and ask that they be vacated.
Because the Motion does not raise any new issues, cite new information or establish that the Board erred, it should be denied, 11.
BACKGROUND in a Partial Initial Decision of April 17,1985 ("PID"), the Licensing Board determined that LILCO's plan for hospital evacuation did not bar a 1/
"Suffolk County, State of New York and Town of Southampton Motlen For Reconsideration of The Board's Ruling on LILCO's Motion for
~
Summary Disposition of the Hospital Evacuation issue" (March 7, 1988) at 4-5 ("Motion").
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Memorandum and Order Ruling on LILCO's Motion for Summary Disposition of the Hospital Evacuation issue ("Order").
8803290049 800322 ADOM O
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reasonable assurance finding under 10 C.F.R. 6 50.47(a)(1).
Although LILCO had not submitted specific evacuation time estimates for hospitals, the Board found that the estimates were not necessary because LILCO's sheltering plans were adequate and would suffice in the vast majority of cases.
Id. at 837-38.
The Board also considered the fact that LILCO had not obtained letters of agreement between EFZ hospitals and potential receiving hospitals.
The Board determined, however, that requiring Lit.CO to obtain such letters would not benefit public safety, since LILCO had already done all that could reasonably be expected to find relocation centers.
Id. at 840.
A different conclusion was reached with regard to nursing and adult homes.
For those facilities, the Board determined that LILCO would have to identify reception centers and support that identification by obtaining letters of agreement.
Id.
By a decision of March 26, 1986, the Appeal Board remanded the hospital evacuation issue to the Licensing Board, stating that LILCO's emergency response plan must provide for hospital evacuation, however remote that possibility might be.
ALAB-832, 23 NRC 135, 155-56.
Specifically, the Appeal Board stated that LILCO must provide evacuation time estimates and that the Licensing Board must impose the same planning obligations for hospital evacuation as for nursing and adult homes.
Id. at 157.
In a Memorandum and Order issued on November 5, 1987, the Commission agreed with the reasoning of the Appeal Board on the issue of hospital evacuation.
CLl-87-12, 26 NRC
, s!!p op, at 22.
On December 18, 1987, LILCO filed a motion for summary disposition of the hospital evacuation issue, which was once again before the
i
- y Licensing Board.
LILCO listed eleven facts which it alleged were material and undisputed.
Among other things, LILCO stated that it would file a revision to its emergency plan (Revision 9) which would include additional details about hospital evacuation.
Specifically, the revised plan would include evacuation time estimates for each hospital based on four new assumptions, one of which was that reception hospitals would have 14% of their capacity available.
According to LILCO, Revision 9 would also contain a list of reception hospitals at least five miles beyond the edge of the EPZ that could handle contaminated individuals.
LILCO conceded that it did not have signed agreements with the reception hospitals but stated it would continue efforts to obtain them.
After LILCO's revised plan was actually received, all parties were invited by the Licensing Board to respond to LILCO's motion in light of its contents. 3_/
Thereafter, on February 24, 1988 the Board issued the Order which is the subject of Intervenors' Motion, in the Order, this Board found that the only material issue of fact in dispute was the accuracy of LILCO's evacuation time estimates.
Order at 12.
The Board also determined that one of LILCO's underlying assumptions, that 14% of the beds in receiving hospitals would be available, provided a reasonable planning basis.
Id. at 11.
Intervenors argue that the Order is erroneous because (a) the Board improperly delegated factual inquiries to the Staff, (b) the Board precluded factual inquiry of LILCO's estimate of available hospital beds, and (c) the Board
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Memorandum and Order (Ruling on Applicant's Motion of December 8, 1987 for Summary Disposition of the Hospital Evacuation issue),
February 1, 1988.
i.
did not address the need for letters of agreement with receiving hospitals. Motion at 2-7.
Ill.
DISCUSSION A.
The Board Acted Properly in Leaving Ministerial Matters to the Staff Intervenors argue that the Board improperly delegated certain I
factual inquiries to the Staff.
Motion at 2.
Although they characterize the Board's action as a delegation of authority to determine the adequacy i
of certain aspects of LILCO's emergency plan, the activities left to the Staff, such as confirmation of the existence of the hospitals listed in i
Revision 9, are obviously simple ministerial matters, decause of the predictive nature of emergency planning findings, such matters are properly left to the Staff for post-hearing confirmation.
See Loulslana Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-732, f
17 NRC 1076,1103-04 (1983).
Contrary to the Intervenors' assertion, the Board did not ignore any factual issue by leaving confirmatory matters to the Staff.
Their attacks upon the credibility and integrity of the Staff are completely unfounded, b and therefore do not raise any genuine issue of fact which must be resolved by the Board. -
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The Staff provided a detailed reply to the Intervenors' attacks in "NRC Staff Answer in Support of LILCO's Motion to Strike Inter-Summary Disposition of Hospital Evacuation" venors' Reply (February 24, 1988).
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See Texas Utilities Generating Company (Comanche Peak Steam ETectric Station, Units 1 and 2), LB P-8 2-17, 15 NRC 593, 595, in (FOOTNOTE CONTINUED ON NEXT PAGE)
e t, I
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B.
The Board Properly Accepted LILCO's Assumption That 14% of the Space in Receiving Hospitals Would Be Available in the Event of an Emergency in accepting the assumption that 14% of the beds in receiving hospitals would be available, the Board noted that the Intervenors had q
questioned the manner in which the number had been calculated.
However, the Board also recognized that no more than a "crude guess" could be made when attempting to calculate the "number of beds which would be free at some indeterminate time in the speculative future during the occurrence of an unlikely event." Order at 11.
)
Although Intervenors have complained about the use of the 14%
figure, they have not set forth any facts to support their claim that the figure can be "refined." See Motion at 4-5.
Instead, they merely allege that LILCO may have obtained a better estimate by relying on local rather than national data.
That assertion, without any supporting facts, is not sufficient to withstand a motion for summary disposition. Virginia Electric
& Power Co.
(North Anna Nuclear Power Station, Units 1 and 2),
A LA B-584, 11 NRC 451, 453 (1980).
As the Licensing Board observed in Louisiana Power & Light Company (Waterford Steam Electric Station, Unit 3), LBP-81-48,14 NRC 877, 883 (1981), "(a] party cannot avoid summary disposition on the mere hope that at trial he will be able to discredit (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) which the Board observed that "[tlo defeat a motion for summary judgment, an opposing party must present facts in an appropriate i
form.
Conclusions of law and mere arguments are not sufficient.
The asserted facts must be material and of a substantial nature, not fanciful or merely suspous."
(footnotes omitted)
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movant's evidence."
In essence, Intervenors are asking the Board to allow litigation of an inherently uncertain estimate to see if it can be improved.
This request would waste time and resources and should be rejected.
C.
There Was No Need for the Board to Address the Question of Whether Letters of Agreement Are Required As the Intervenors have pointed out, the need for letters of agreement with receiving hospitals was not specifically addressed by the Boa rd.
Motion at 6.
This was perfectly appropriate since there is no factual nr legal dispute between the parties which must be resolved.
It has already been settled by the Appeal Board that the same emergency planning obilgations must be imposed for the evacuation of hospitals as for the evacuation of nursing and adult homes.
A LA B-832, 23 NRC at 157.
Because this Board has determined that LILCO must obtain letters of agreement with reception centers for res dents of nursing and adult homes (LBP-85-12, 21 NRC at 840), it follows that LILCO must also obtain letters of agreement with receiving hospitals.
The fact that LILCO does not have the letters, but is continuing efforts to obtain them, is not in dispute.
Confirmation that the letters are obtained before operation of the plant commences !s a ministerial function properly left to the Staff. b
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By leaving the confirmatory actions for post-hearing resolution, the Board imposes the same planning requirements for evacuation of hospitals as for nursing and adult homes.
In its Concluding Partt initial Decision, the Board noted that LILCO had not obtained letters of agreement with reception centers for residents of special health care facilities.
The Board concluded that the absence of those letters constituted a defect in LILCO's plan which should be corrected before operation of the plant commenced.
L B P-8 5-31, 22 NRC 410, 429-30 (1985).
F IV.
CONCLUSION As stated above, the Roard's summary disposition rulings on the hospital evacuation issue were proper.
Thus, the Board should deny Intervenors' Motion for Reconsideration.
Respectfully submitted,
/
/
Richard G. Bachmann
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Counsel for NRC Staff
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Lisa B. Clark Counsel for NRC Staff Dated at Rockville, Maryland this 22nd day of March,1988
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 88 MAR 25 P6:15 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD M+ t,~-
$gnct :0CM ii% i " "V'CI-In the Matter of
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LONG ISLAND LIGHTING COMPANY
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Docket No.
5 0-3 2 2-O L-3
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(Emergency Planning)
(Shoreham Nuclear Power Station,
)
Unit 1)
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CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO INTERVENORS' MOTION FOR RECONSIDERATION OF THE FEBRUARY 24, 1987 ORDER CONCERNING EMERGENCY BROADCAST SYSTEM CONTENTION" AND "NRC STAFF
RESPONSE
TO INTERVENORS' MOTION FOR RECONSIDERATION OF THE B OA R D'S RULING ON LILCO'S MOTION FOR
SUMMARY
DISPOSITION OF THE HOSPITAL EVACUATION ISSUE" in the above-captioned proceeding have been served on the following by deposit in the United States mall, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mall system, this 22nd day of March 1988.
James P. Gleason, Chairman
- Joel Bl6u, Esq.
Administrative Judge Director, Utility Intervention Atomic Safety and Licensing Board Suite 1020 U.S. Nuclear Regulatory Commission 99 Washington Avenue Washington, DC 20555 Albany, NY 12210 Jerry R. Kline*
Fabian 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, DC 20555 Albany, NY 12224 Frederick J. Shon*
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, DC 20555 Albany, NY 12223 Philip McIntire W. Taylor Reveley lli, Esq.
Federal Emergency Management Donald P. Irwin, Esq.
Agency Hunton & Williams 26 Federal Plaza 707 East Main Street Room 1349 P.O. Box 1535 New York, NY 10278 Richmond, VA 23212
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! '. Douglas J. Hynes, Councilman Dr. W. Reed Johnson Town Board of Oyster Bay 115 Falcon Drive, Colthurst Town Hall Charlottesville VA 22901 Oyster Bay, New York 11771
'I Stephen B. Latham, Esq.
Herbert H. Brown, Esq.
Twomey, Latham & Shea Lawrence Coe Lanpher, Esq.
Attorneys at Law Karla J. Letsche, Esq.
33 West Second Street Kirkpatrick & Lockhart Riverhead, NY 11901 South Lobby - 9th Floor 1800 M Street, NW Atomic Safety and Licensing Washington, DC 20036-5891 Board Panel
- U.S. Nuclear Regulatory Commission Jay Dunkleberger Washington, DC 20555 New York State Energy Office Atomic Safety and Licensing Agency Building 2 Appeal Board Panel
- Empire State Plaza U.S. Nuclear Regulatory Commission Albany, N.Y 12223 Washington, DC 20555 Spence W. Perry, Esq.
Martin Bradley Ashare, Esq.
General Counsel Suffolk County Attorney Federal Emergency Management H. Lee Dennison Building Agency Veteran's Memorial Highway 500 C Street, SW Hauppauge, NY 11788 Washington, DC 20472 Anthony F. Earley, Jr.
Dr. Monroe Schneider General Counsel North Shore Committee Long Island Lighting Company P.O. Box 231 175 East Old County Road Wading River, NY 11792 Hicksville. NY 11801 Ms. Nora Bredes Dr. Robert Hoffman Shoreham Opponents Coalition Long Island Coalition for Safe 195 East Main Street Living Smithtown, NY 11787 P.O. Box 1355
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Massapequa, NY 11758 William R. Cumming, Esq.
Office of General Counsel Alfred L. Nardelli, Esq.
Federal Emergency Management New York State Department of Law Agency 120 Broadway 500 C Street, SW Room 3-118 Washington, DC 20472 Docketing and Service Section*
Barbara Newman Office of the Secretary Director, Environmental Health U.S. Nuclear Regulatory Commission Coalition for Safe Living Washington, DC 20555 Box 944 Huntington, New York 11743 Richard G. Bacomann Counsel for NRC Staff
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