ML20149D802
| ML20149D802 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 02/05/1988 |
| From: | Letsche K, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SUFFOLK COUNTY, NY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#188-5555 OL-3, NUDOCS 8802100023 | |
| Download: ML20149D802 (45) | |
Text
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SSS5 00LKETED USNPC
'88 FEB -8 P 3 :58 Februarv 5, 1988 orncEci h iu w <
UNITED STMNESif0F. AMERICA NUCLEAR REGULAT6 W COMMISSION ,
Before the Atomic Safety and Licensino Board
)
In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station, )
Unit 1) )
)
GOVERNMENTS' RESPONSE TO STAFF AND LILCO OBJECTIONS TO THE EMERGENCY PLANNING CONTENTION RELATING TO LILCO'S NEW EMERGENCY BROADCAST PROPOSAL In filings dated January 27, 1988, both the NRC Staff and LILCO objected to the admission of the entirety of the Govern-ments' Contention concerning LILCO's new proposed emergency broadcast system.1/ This is the Governments' response to those objections.
1/ lt.t LILCO's Objections to Intervenors' "Emergency Planning Contention Relating to LILCO's New Emergency Broadcast System Proposal" (Jan. 27, 1988) (hereafter, "LILCO Objections" or "LILCO Obj."); NRC Staff Response to Proffered Intervenors' 1 Contention on the Adequacy of the Emergency Plan's Provisions for Radio Transmission of EBS Messages (Jan. 27, 1988) (hereafter, "Staff Objections" or "Staff Obj."').
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- o I. INTRODUCTION As a preliminary matter, the Governments note that the ,
position taken by LILCO and the Staff with respect to LILCO's new EBS proposal. is fundamentally absurd. The bottom line of their objections to the Governments' EBS Contention is the assertion that the Governments may not cha11ence any asoect of that new plan. They object to every sincie allecation made by the Govern-ments concerning the new proposal. It takes no thought or com-plicated analysis to recognize that the position taken by the Staff and LILCO is, on its face, ridiculous.
In their objections, the Staff and LILCO repeatedly intone the magic words of "basis" and "no regulatory requirement," and make repeated references to 1984 contentions on another EBS plan, with the apparent hope that the mere use of those words would result in their desired result -- the preclusion of any challenge to LILCO's new proposal. Their "objections," however, ignore the actual contents of the Contention, are devoid of any meaningful or logical analysis to support their "lack of basis" incantations or their other "objections," and are transparent in their attempts to achieve a result favorable to LILCO, even in the face of patently unfounded arguments in support of that result.
We demonstrate in this Response that the Governments' Con-tention constitutes an entirely proper and admissible challenge to LILCO's new proposal for public notification in the event of a '
l Shoreham emergency. It complies in every respect with the NRC's l
l 2- ,
o pleading requirements for admissible contentions. It is wholly consistent with the Commission's and this Board's prior rulings denying previous Staff and LILCO efforts to prohibit any chal-lenge or litigation of the adequacy of LILCO's new proposal. And, consistent with its responsibilities under 10 CFR S 2.718 and the Atomic Energy Act, this Board cannot ignore the serious safety issues, presented by LILCO's new proposal, which are identified in the Governments' Contention.
II. REVIEW OF THE CONTENTS OF THE EBS CONTENTION Before addressing the specific objections posed to bits and pieces of the Governments' EBS contention, it is essential to .
focus on the text and contents of the Contention itself.2/ Based on the assertions and allegations in their objections, both LILCO and the Staff have either misread and misunderr,tood the structure and contents of the Contention, or they have Jeliberately dis-torted and mischaracterized the Contention 1.1 attempting to ob-tain a ruling denying its admission.
The EBS Contention makes one fundamental allegation:
LILCO's new provisions for radio transmission of EBS messages and other amergency informa-tion, and for activation of tone alert radios and receivers installed at the secondary EBS stations, are inadequate, and the Plan fails to comply with 10 CFR SS 50.47(a)(10), (b)(5) and 2/ The Contention was submitted on January 12, 1988, under cover of a letter to the Board of the same date from Michael S.
Miller. The Contention was entitled "Emergency Planning Contention Relating to LILCO's New Emergency Broadcast System Proposal."
4 (b)(6), 10 CFR Part 50, Appendix E SS IV.D.2 and 3, NUREG 0654 SS II.E.5 and E.6, and Appen-dix 3 thereto, and FEMA REP-10 . . . .
This fully complies with the Board's Memorandum and Order which denied LILCO's summary disposition motion relating to its new EBS proposal, in which the Board ruled, consistent with CLI-87-05, that the Governments could submit new contentions "concerning LILCO's changes in its emergency broadcast system."3/
The EBS Contention then alleges four reasons -- or bases --
for its fundamental allegation. They are:
- 1. WPLR could not and would not function as an effective or adequate primary EDS station for radio transmission of EBS messages and activation of tone alert radios and receivers installed at the secondary EBS stations . . . .
- 2. [LILCO's nine) secondary stations could not and would not compensate for the inadequa-cies and ineffectiveness of WPLR au the primary EBS station, and they could not and would not function adequately or effectively to transmit EBS messages or emergency information to the public in the EPZ and surrounding areas during a Shoreham emergency . . . .
t 3/ Memorandum and Order (Ruling on Applicant's Motion of November 6, 1987 for Summary Disposition of the WALK Radio Issue)
(Dec. 21, 1987) (hereafter, "Dec. 21 Order"). The Order stated:
The issues concerning public notification
! procedures that were previously litigated in I this proceeding concerned the adecuacy of the i
emercency olan's orovision for radio transmis-
! sion of EBS,messaces and activation of tone l alert radios. Any new contentions must iqqqa I on these issues as they are imoacted by LILCO's new arrancements for conductina emercency noti-fications.
l Dec. 21 Order at 4-5.
s
- 3. LILCO's new EBS proposal has virtually no nighttime EBS coverage west of the EPZ.
. . . This gap in LILCO's EBS coverage results in a large segment of the population just outside the EPZ having no access to emergency information regarding a Shoreham accident. As a result, there would be substantial confusion, rumor generation, and the dissemination of inaccurate and inconsistent information. This would lead to substantial voluntary evacuation by residents from outside the plume EPZ . . .
(and] a significant evacuation shadow from within the EPZ. . . .
- 4. LILCO's asserted reliance upon so-called "informal alerting systems," . . . to supple-ment its new EBS network, could not and would not compensate for inadequacies and ineffec-tiveness of that network. . . .
The Contention and its four bases could have been submitted with nothing more; as we demonstrate in section IV below, standing alone, they would have been admissible under the NRC's well-established admissibility standards.
But, the Governments went beyond their basic pleading obli-gations in drafting the EBS Contention. Although not required to do so, they nonetheless provided additional specificity and detail for each of their four bases for the EBS Contention's allegation. Thus, the Contention includes six specific reasons to support the basis set forth in paragraph 1 of the Contention (subparagraphs A-F); three specific reasons to support the basis set forth in paragraph 2 (subparagraphs A-C); and, detailed explanations with supporting citations to support the bases set forth in paragraphs 3 and 4.
The Governments have engaged in this exercise of reviewing the contents and structure of the EBS Contention because it is essential that the Board view the LILCO and Staff objections in light of the actual contention which has been submitted. The Board must not be lulled into clear legal error by accepting, or basing an admissibility ruling upon, the glib mischaracterizations of that Contention which form the basis of the LILCO and Staff objections. The Contention as submitted by the Govern.nents is clearly admissible; the isolated portions, and out-of-context fragments of the contention as invented, re-written, or distorted by LILCO and the Staff, are of no relevance and must be ignored.
III. LILCO AND THE STAFF MISCHARACTERIZE THE EBS CONTENTION We discuss in section VII below the detailed objections made by the Staff and LILCO to the bits and pieces of the Governments' Contention. Even a cursory review of the LILCO and Staff Objec-tions, however, reveals that they are fundamentally premised upon a gross mischaracterization of the EBS Contention, must be re-jected for that reason alone.
First, they ignore the obvious fact that the Governments have submitted one contention, with several bases, each one set forth with detailed specificity.d/ The Governments have H21 1/ This fact was highlighted by the cover letter which accom-panied the Contention. Egg letter, dated January 12, 1988, from Michael S. Miller to the Licensing Board, which stated:
(footnote continued) l 1
i I
+ w - -
submitted four contentions, thirteen contentions, or any of the other permutations created by the Staff and LILCO. Thus, for example, LILCO's assertion that the Governments' Contention "actually consists of a preamble followed by four contentions
.with nine subparts," (LILCO Obj. at 1) must be rejected outright because it is simply false.
Second, both LILCO and the Staff essentially ignore the fundamental allegation of the Contention which is set forth in the beginning, as well as the fact that that allegation includes regulatory bases and tracks the precise issue identified in the December 21 Order. For this reason, the arguments that separate fragments of contentions which LILCO and the Staff have artifi-cially created are inadmissible because, for example, they lack citations to a regulatory basis, or they fail to address the issue identified in the Board's Order, must be rejected. LILCO and the Staff simply and conveniently ignore the reality of the Contention as submitted: the numbered paragraphs of the Contention set forth the factual allegations which constitute the bases for the Contention's fundamental allegation. Those bases are not themselves "contentions" which require separate regulatory or other bases, and they cannot be read in isolation l
4 (footnote continued from previous page)
(Allthough the contention has been organized into four individual subparts, those subparts cannot be viewed in isolation or without refer-ence to the contention of which they are a part. Rather, the contention must be read in its entirety, with the subparts viewed as providing the spacific bases for the con-
! tention's focu.s.
i or without reference to the fundamental allegation of inadequacy and regulatory non-compliance which they are intended to support.1/
Third, LILCO and the Staff also ignore that the additional specification provided in the four contention bases are agt "contentions," do not require separate regulatory or other bases, and cannot be read in isolation or without reference to the particular bases to which they relate or the fundamental allegation those bases support.
Thus, as is made clear by the Contention itself, the four numbered bases for the Contention state four reasons for the Governments' contention: that LILCO's "new provisions for radio transmission of EBS messages . . . a e inadequate, and the Plan fails to comply with" the cited regulatory requirements. The other information set forth with eac:1 stated basis provides additional detail for the factual allegations which comprise each basis. In their testimony and at trial the Governments will provide evidence on the merits of their allegations. That evi-dence will prove that the factual allegations contained in the statements of bases are true, and trat those facts result in an inadequate public notification system which fails to comply with I
r l 1/ In addition to being erroneous, the Staff's mischaracteri-zation of the Governments' Contention carinot be reconciled with t its discussion of the letter which accompanied the Contention and l explained its structure. Een Staff Obj. at 4, cuotina the let-ter, dated January 12, 1988, from Fichael S. Miller to the l Licensing Board ("the contention must be read in its entirety, i with the subparts viewed as provid ng the specific bases for the contention's focus").
the regulations. As made clear in section IV below, it is inap-propriate, and contrary to the NRC's rules of practice and case precedent, to suggest that evidence on the merits of allegations set forth in contentions need be included in contentions in order for them to be admissible.
IV. LILCO AND THE STAFF DISTORT AND IMPROPERLY ATTEMPT TO APPLY THE PLEADING REOUIREMENTS FOR ADMISSIBLE CONTENTIONS As noted, LILCO's and the Staff's attempted dissection of the Governments' single EBS Contention into multiple fragments of contentions is wrong. That error, alone, requires the rejection of their objections. In addition, however, NRC case law is clear that intervenors are asi required to plead in a contention the evidence which forms the factual underpinning of the bases of a contention. Similarly, in virtually every "lack of basis" objec-tion both LILCO and the Staff merely state their disagreement with the factual allegation or legal conclusion alleged in the portion of the Contention they are addressing. These so-called "objections" are, in reality, a transparent attempt to arget. and obtain rulings on, the merits of the allegations contained in the Contention. Such attempts are clearly contrary to the law. They must be rejected.
Notwithstanding the repetitious assertions by LILCO and the Staff, the case law interpreting the basis and specificity re-quirements of 10 CFR S 2.714 makes clear that contention sponsors are n21 required at the pleading stage to set forth their evi-
- 1
4 dance or the factual underpinnings of their allegations, or even to establish that the allegations are well-founded in fact. '
Houston Lichtino & Power Co. (Allens Creek Nuclear Generating ,
Station, Unit 1), ALAB-590, 11 NRC 542 (1980); Duke Power Co.
(Transportation of Spent Fuel from Oconee to McGuire), ALAB-528, 9 NRC 146 (1979); Philadelohia Electric Co. (Peach Bottom Atomic Power Station, Units 2 & 3), ALAB-216, 8 AEC 13 (1974);
Mississiooi Power & Licht Co. (Grand Gulf Nuclear Station, Units 1& 2), ALAB-130, 6 AEC 423 (1973). Egg also Viroinia Electric &
Power Co. (North Anna Nuclear Power Station, Units 1 & 2), ALAB-522, 9 NRC 54 (1979).
The NRC's admissibility rule in Section 2.714 is designed to track the notice pleading requirements in the Federal Rules of Civil Procedure. Accordingly, a contention's sponsor must in-clude a statement of reasons (1212, t,ne basis) for a contention so the parties are put on notice at to what will be litigated.
Egg, gxgt, Peach Bottom, ALAB-216 8 AEC at 20 ("PurpGse of the basis-for-contention requirement in Section 2.714 . . . is to help assure that other parties are sufficiently put on notice so that they will know at least generally what they will have to defend against or oppose"). Accord, Allens Creek, ALAB-590, 11 NRC at 549, n.10.
The NRC case law also makes clear that in ruling on the admissibility of contentions, a licensing board is orchibited from making rulings on the merits of the contentions. Egg, e.o.,
Duke Power Co., ALAB-528, 9 NRC at 151 ("whether a particular
.4 concern (set forth in a contention) is justified must be left for consideration when the merits of the controversy are reached")'
Grand Gulf, ALAB-130, 6 AEC at 426 (in ruling on the admissibili-ty of a contention "it is not the function of a licensing board to reach the merits of any contention"). Accord, Allens Cre,th, ALAB-590, 11 NRC at 549, n.10; Peach Bottom, ALAB-216, 8 AEC at
- 20. ,
Indeed, in this very case, this Board applied this well-established prir.ciple to reject previous ef forts by LILCO to go beyond the Section 2.714 requirements to argue the merits of contentions at the admissibility stage:
We have found that-the contentions admitted in this Order meet the recuirements of soecificity and basis. 10 CFR S 2.714fb). In several in-stances LILCO objected to the admission of a contention on the basis of documents which were attached to its brief. It would be inacoroori-ate to resolve the merits of any such conten-
. tion at this stace of the oroceedino.
Lono Island Lichtino Co. (Shoreham Nuclear Power Station, Unit 1), Special Prehearing Conference Order (August 19, 1983 (unpub-lished), at 3 (emphasis added). Egg aleo Lono Island Lichtino C22 (Shoreham Nuclear Power Station, Unit 1), Order Ruling on Suffolk County Motion for Leave to File New Contentions Con-cerning the LILCO Offsite Emergency Preparedness Training Program (March 19, 1984) (unpublished), at 15, 16 (rejecting LILCO's h
"lack of basis" admissibility objections because they were "fac-tual-disagreement (s) with the merits of the proposed conten-I tion (s)").
Since contentions are not required to include evidence or the factual underpinnings of the allegations contained in them, at the present stage of this proceeding on LILCO's new public notification proposal, this Board has no basis for making a ruling on (a) the factual accuracy or substantive merits of the Governments' Contention, or (b) whether that Contention actually demonstrates (as opposed to cleadino with specificity and basis) that LILCO's new system is inadequate, ineffective, or fails to comply with regulatory requirements. Egg, gig 2, Allens Creek, ALAB-590, 11 NRC at 552-53 (concurring opinion of Judge Farrar).
I' Indeed, a substantive ruling by this Board on the merits of any i portion of the Governments' Contention, or one including a deter-mination of whether a particular alleged fact does or does not
! render LILCO's new plan adequate or effective, or whether an i
alleged fact or condition does or does not support a finding of
- regulatory non-compliance, would deprive the Governments of their i
1 right to a hearing guaranteed by Section 189(a) of the Atomic Energy Act and the right to conduct discovery and present evi-dence as set forth in 10 CFR $$ 2.740 and 2.743. Such a ruling i would ba nothing but pure speculation.
Thus, as the .'.pneal Board stated in Allens Creek:
! whether (the intervenor) will be able to prove the assertions underlying the contention is j quite beside the point at (the contention i
E
, 7-U admission) preliminary stage of the proceeding.
. . . (U)nder the Rules of Practice . . . as they have been uniformly interpreted, he'is entitled to . . . the opportunity to attempt to do so . . . .
11 NRC at 549.
, Contrary to LILCO's suggestion, the Governments' EBS Contention is not "vague or unparticularized," it does not leave parties guessing as to what issue is raised, and it does not contain "bare allegations" without "reasonable explanation." gag LILCO Obj. at 5. The Board must find that the Governments' Contention meets the NRC's pleading requirements for an admissible contention.1/
V. LILCO AND THE STAFF DISTORT AND MISCONSTRUE THE BOARD'S DECEMBER 21 ORDER i
Both LILCO and the Staff purport to rely on the Board's December 21 Order, as well as the Commission'a pronouncements in CLI-87-05, in arguing that the Governments should not be per-i mitted to challenge LILCO's new EBS proposal in any respect. In
! this connection, they also make bizarre arguments about the
- references to WALK radio in the Governments' Contention, sug-l f/ The Staff's apparent attempt to argue that the Governments must meet the standards for late-filed contentions in this pro-ceeding, as well as its citation of a case which involved the re-writing of inadmissible cottentions by a licensing board (ang i Staff Obj. at 4), are unexpla..ned and without basis in any event.
They merit no response.
L3 -
t -
f gesting, by means of contorted reasoning, that such references somehow render the Contention inadmissible. These arguments must be rejected.
First, as already noted, the Governments' Contention is completely consistent with the Board's December 21 Order, and with logic and common sense as well. The Contention virtually tracks the Board's own language in defining the issue to be addressed in this proceeding. Thus, after referring to what it called "the Commission's directive of confining new contentions to those focusing the litigation of earlier admitted issues," the Board stated:
The issues concerning public notification procedures that were previously litigated in this proceeding concerned the adec'uacy of the emercency olan's orovision for rad io transmis-sion or EBS messaces and activation of tone alert radios. Any new contentions must focus on these issues as they are imoacted by LILCO's new arrancements for conductino emercency noti-fications.
December 21 Order at 4-5 (emphasis added). In light of the plain words of its December 21 Order, there is simply no basis to suggest that the Governments' Contention is not precisely what A
the Board contemplated.
Second, the inclusion of references in the Governments' Contention to LILCO's previous emergency notification system, including its former reliance upon WALK Radio and only Lcng Island stations, was also done in direct response to the Board's Order. Direct points of comparison between LILCO's new s ystem 14 -
and its previously litigated proposal were included to address, L with specificity, "the impact" of LILCO's new system upon the ,
adequacy and effectiveness of its previous one, as ordered by the Board. The Board also emphasized in its Order that new conten-tions were to address "changes" in LILCO's proposed system.
December 21 Order at 5. For this reason, LILCO's argument that portions of the Governments' Contention containing comparisons with WALK are inadmissible because they are "not relevant" (RA2A, LILCO Obj. at 7), are off base.
Moreover, the inclusion of such points of comparison, and the highlighting of the substantial differences between LILCO's previous proposal and its new one, also provide the simple and obvious response to the LILCO and Staff suggestions that the Governments are attempting, improperly, to litigate issues they could have litigated earlier with respect to the WALK radio /all Long Island station proposal. The Contention makes clear -- and for the most part neither the Staff nor LILCO seriously dispute
-- that the earlier proposal did not include the deficiencies, .
flaws and features which characterize its new proposal and which are the subject of the Governments' contention.
I The alleged bases for the Governments' contention that LILCO's new proposal is inadequate and fails to comply with the l regulations all arise from the facts that LILCO now relies upon (a) a Connecticut-based primary station, with substantially different capabilities and characteristics than its previous lead station, and (b) a group of secondary stations, some in Connecticut, with different capabilities than its previous secon-dary stations, and (c) an all-new "informal alerting system."
Clearly, the Governments' Content *.on addresses "changes" in LILCO's proposal, as required by the Board's Order. LILCO's suggestion to the contrary (LILCO Obj. at 3-4) is wrong.
VI. LILCO AND STAFF MISSTATE THE LEGAL STANDARDS GOVERNING EMERGENCY BROADCAST SYSTEMS Both LILCO and the Staff attempt to argue that the Govern-ments' EBS Contention, and individual portions, phrases, and ;
words of it, are inadmissible, or constitute a "challenge to the regulations" because they allegedly have no basis in the NRC's regulations. 111, gigt, LILCO Obj. at 6-7; Staff Obj. at 12.
LILCO, and to a lesser extent the Staff, urge that the regula-tions require galv a capability to broadcast emergency informa-tion within the 10 mile clume exoosure EPZ accordingly, the argument goes, any reference to the communication of emergency information to persons outside the 10 mile EPZ -- including protective action recommendations and information included in LILCO's own sample EBS messages designed solelv for persons outside the EPZ -- is improper and renders the piece of the Contention containing such reference inadmissible. These argu-l ments must be rejected.
b l
! I
First, they are wrong insofar as they result from the mis-characterization of contention fragments as separate contentions, and thus ignore the regulatory basis references which are con-tained in the Contention's fundamental allegation, as explained in section II above.
Second, they are wrong because they misstate -- or choose to ignore -- the actual regulatory requirements cited in the Govern-ments' Contention. It is certainly true that 10 CFR S 50.47(b)(5) and NUREG 0654 S II.E.6 limit the "early notifica-tion" requirement to the plume exposure EPZ. The Governments do not suggest, or contend, otherwise. It is equally true, hoi -r, that 10 CFR S 50.47(b)(6) and NUREG 0654 S II.E.5, which are also cited in the Governments' Contention, do not so limit the re-quirement that there be a capability of "prompt communications" to the public, and "a system for disseminating to the public appropriate information contained in initial and followuo mess-ages." Thus, while the "prompt notification and instruction" requirement may be limited to the 10 mile zone, the ability to communicate important and appropriate emergency information throuchout the accident is not so limited.1/
1/ In this regard it is noteworthy that LILCO persistently refers in its Objections to S 50.47(b)(5) and Appendix E, rather than to S 50.47(b)(6), which is cited just as prominently in the Governments' Contention. Moreover, in its only mention of S 50.47(b)(6), LILCO blatantly ignores the plain words of that regulation. It incorrectly asserts:
10 C.P.R. S 50.47(b)(6) goes to communications among emergency response organizations and per-sonnel and therefore is not directly relevant (footnoto continued) s Third, the fact that the regulations do not set a 10 mile limit on the required ability to communicate emergency informa-tion Juring an accident is the only sensible approach in light of the other regulatory requirements and facts cited by the Govern- !
ments in support of their Contention that the new LILCO proposal is inadequate and fails to comply with the regulations. Thus, for example, 10 CFR S 50.47(b)(10) and NUREG 0654 $ II.J.ll, referenced in basis paragraph 2, subparagraph C, require the development of protective actions for the ingestion exposure pathway EPZ. Clearly, recommendations about such protective actions are among the "appropriate emergency information" which the regulations require there exist a capability to disseminate.
To conclude that it is not necessary to communicate such recom-mendations to the very oeoole at risk -- itt&, those outside the 10 mile EPZ in the larger ingestion pathway EPZ -- would make a mockery of the regulations.
4 Furthermore, and also as noted in the Governments' Conten-tion, LILCO itself, in its Plan and in prior testimony in this and the Exercise proceeding, has recognized the need to communi-cate emergency information, including "followup messages" to (footnoteconthJedfrompreviouspage) to "radio transmission of EBS messages and ac-tivatioa of tone alert radios." '
4 It then notes, however, that the regulation in fact "requires ,
, that ' provisions exist for prompt communications among principal i response organizatiens to emergency personnel and to the oublic.'" LILCO Ooj. at 8 (emphasis added). ;
I l
persons outside the 10 mile EPZ. For example, OPIP 3.8.2, l
5 5.2.2.f on EBS "Message Assembly" instructs the LERO Coordina- [
tor of Public Information as follows:
At the direction of the Director of. Local i Response, obtain from the Radiation Health i Coordinator information concerning where inges- [
tion pathway protective action levels may have !
been' exceeded. Develoo a nunclementary Ess !
messaae to inform Decole in these areas of [
anorooriate actions and where they can call for j further information.
i (Emphasis added).8/ l And, the LILCO Plan does not even limit information to be f f communicated to persons outside the 10 mile EPZ to that related to ingestion pathway-related protective actions; the information I
LILCO acknowledaes must be communicated to persons outside the 10 [
mile EPZ includes information such as the boundaries of the plume
, [
j exposure EPZ, and whether persons outside the EPZ should take t
^
l protective actions recommended for those inside the EPZ or other i
l- actions, in addition to ingestion pathway protective actions. [
t i- Thus, LILCO's sample EBS messages contain descriptions of the EPZ [
l i boundaries and the following statements:
f l
' If you are outside the 10-mile emeroency olannina zone there is no reason to take any 3 action. If conditions change in the future, these recommendations may chance and we will
! inform you immediatelv.
f
' t i
8/ The LILCO Plan also states "Within New York State, the i i primary means of food interdiction will be radio messages l l identifying areas of concern . . . . " Plan at $ 3.6-8. (r i
l i
19 - l i f
, . . + - < - , - - . . . - , , , -----,---,---.---,-,---------,.-,---------n-. .---.---- - -- - - - - - - -
OPIP 3.8.2, Att. 4 (emphasis added). Thus, to suggest that the ability to communicate such information to persons outside the 10 mile EPZ is not required, is inconsistent with LILCO's own Plan i and with its position throughout this litigation. ;
It must be emphasized that contrary to the implication in the LILCO and Staff objections, LILCO's proposed new EBS system is not intended to perform gnly the function of providing the initial "early notification" or initial "prompt instruction" to the public. According to the Plan: ,
(T]he Emergency Broadcast System is the vehicle through which officials from LERO can advise '
the public directly of the status of any emer- l gency situation connected to the Shoreham Nuclear Power Station and of any protective actions that the public should be taking to ensure minimum risk of danger or exposure as a result of an emergency situation.
Plan S 3.8-6. The sample EBS messages make clear that they are intended to be used throughout the emergency. Egg OPIP 3.8.2. L The LILCO and Staff objections are, if nothing else, disingenuous in attempting to obtain a ruling denying admission to the Govern-ments' Contention based on an argument which, by implication, mischaracterizes the very Plan and proposal that they seek to :
have approved.
LILCO's assertion that the Governments have "cited the
, regulations (but) have ignored their substance" (LILCO Obj. at 6)
I in fact describes the arguments of LILCO and the Staff. This i Board cannot accept LILCO's suggestion that it only needs to j i
t l
1 f
- ,u
~
<, l a
t I
"ha(ve) a means to provide 24 hour2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> notification and instruction j to the public in the 10-mile EPZ" (LILCO Obj. at 7 (emphasis in original)). LILCO's position extracts all meaningful content f
from the regulations by suggesting that it does not matter if the chosen."means" are canable of actually accomolishina the required !
notification, instruction, and communication of emergency :
information to the public. The Governments' Content!on addresses precisely that issue; the responses of the Staff and LILCO seek to read the "capability" requirement right out of the i
regulations.
Similarly, LILCO's assertion that S 50.47(a)(1), Phile "generally applicable," "is not heloful in determining the adequ-
! acy of LILCO's EBS arrangements," (LILCO Obj. at 9 (emphasis added)) is a challenge to the regulations which this Board cannot countenance. This Board is obligated to apply Section 50.47(a)(1) in assessing the adequacy of LILCO's Plan, whether LILCO thinks its doing so would be "helpful" to LILCO or not.
- Suggesting that this Board could properly evaluate LILCO's pro-i
- posal for communicating emergency information and protective q action recommendations to the public, using any standard other than that provided in Section 50.47(a)(1) and the rest of the regulations, is preposterous, and must be rejected out of hand.
l l
1 i
l t
VII. RESPONSE TO OBJECTIONS TO PARTICULAR FRAGMENTS OF THE GOVERNMENTS' CONTENTION In this section, we address the specific objections made by the Staff and LILCO to portions of the Governments' Contention,
.to the extent they have not been fully discussed in sections II-VI above.
The fundamental allecation in the first paracraoh LILCO's only comment concerning the basic allegation of the Governments' Contention is a series of assertions that the regu-latory requirementa cited there are, in its opinion, "inapposite" (Part 50, App. E.IV.D.2), "not relevant" (S 50.47(b)(6)), and "not helpful" (S 50.47(a)(1)). These observations are not admis-sibility objections. Moreover, we discuss their substantive inac-curacy in section VI above.
The Staff asserts that the allegation, standing alone, "does not have the requisite specificity." Staff Obj. at 6. The Staff i
r comment merely reflects its misreading of the Contention, as discussed in sections II and III above.
The Basis in Paracraoh 1 l Neither LILCO nor the Staff ever addresses the allegations set forth in paragraph 1, as further specified in subparagraphs l
A-F, as a basis for the Governments' Contention stated in the first paragraph. Instead, they dissect, and then address as if l they were separate contentions, the allegations set forth in the lettered paragraphs which provide the specificity for the state-ment of basis in paragraph 1. For the reasons discussed in sections II-IV above, their entire approach to Basis 1, including its specification in subparagraphs A-E must be rejected. We nonetheless address their comments below.
Suboaracraoh A Both LILCO and the Staff assert that subparagraph A lacks basis. LILCO Obj. at 9; Staff Obj. at 6. The NRC case law is clear that contentions need not include bases for their bases, nor need they include the evidence which ultimately will be offered in support ot factual allegations. Egg section IV. The lack of basis objection is without merit.
LILCO and the Staff also both attempt to argue the merits of the allegation contained in subparagraph A, in the guise of a "lack of basis" objection. Thus, LILCO argues that the Covernments "did not attempt to dispute" certain documents and studies which LILCO believes counter the allegation, and makes bald unsupported assertions of its disagreement with the i Governments' allegation (e.g., "In fact, there is no connection" between WPLR's power rating and the weakness of its signal-(LILCO Obj. at 9)); the Staff merely makes the bald assertion that in l its opinion, the stated WPLR signal strength "does not provide any basis on which to conclude" that WPLR cannot be heard (Staff Obj. at 6). As discussed in section IV, this Board cannot make rulings on the merits of factual allegations contained in a 1
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. c contention at the threshold admissibility stage of the pro-ceeding. At the evidentiary stage of the proceeding, the Govern-n ments will submit evidence in support of their allegation, will dispute LILCO's assertions and studies, and will otherwise add-ress the merits of their Contention.
LILCO asserts that the comparisens to WALK radio are "irre-levant" and "meaningless" (LILCO Obj. at 9); the Staff asserts that the comparison "does nothing to support the proposed conten-tion . . . . (Staff Obj. at 6). We address these arguments in section V above: the contrast between the capabilities of LILCO's original proposed lead EBS station and its new proposal identifies with specificity the changes which the Governments were directed to address. It also provides specificity con-cerning the actual weakness of thc WPLR signal, which is merely i
l one out of six reasons for the allegation in basis paragraph 1 that WPLR-FM could not and would not function as an effective or adequate primary EBS station. The actual significance of LILCO's l
proposed 70 percent reduction in signal strength will be demon-I strated in the Governments' evidence, and can be addressed by this Board only in the context of ruling on the merits of such evidence. The "WALK comparison" objection is without merit.
l The Staff's assertion that "the test is not a comparison to i the coverage of another station, but whether LILCO's present ten l
l station EBS is satisfactory" (Staff Obj. at 6) is another example
! of the Staff's improper construction of the Governments' Conten-l tion. The Contention does address the entire EBS proposal; it l
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T states four reasons that that system is inadequate. The basis in paragraph I focuses on the inadequacy of WPLR as the lead EBS station; the basis in paragraph 2 focuses on the inadequacies of the backup stations. The contention cannot be deemed inadmissi-ble because every stated basis does not also state every other basis.
LILCO's "outside EPZ" objection (LILCO Obj. at 9) must be rejected for the reasons discussed in section VI.
Suboaraaraoh B LILCO's "lack of basis" objection (LILCO Obj. at 10) is an attempt to argue the merits of the allegation contained in sub-paragraph B. It is an improper admissibility objection for the reasons set forth above regarding its identical attempt with l respond to subparagraph A. Seg section IV.
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- The Staff's objection that the allegations in subparagraph B l
"do[] not go to whether the new LILCO EBS is sufficient," and l
l "fail to allege, with basis and specificity, any non-compliance l
l with 10 C.F.R. S 50.47 . . ." (Staff Obj. at 7) is premised solely on its misreading or mischaracterization of the conten-l tion. Egg sections II and III. Subparagraph B states one reason 1
l why WPLR could not and would not function as an adequate or effective lead EBS station which, in turn, is one reason that LILCO's new EBS system is inadequate and fails to comply with th<.
regulations cited in the fundamental allegation of the Conten-tion.
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n LILCO's "Outside EPZ" objection (LILCO Obj. at 10) is with-out merit for the reasons stated in section VI.
Suboaraaraoh C LILCO's "lack of basis" objection (LILCO Obj. at 10) must be rejected. First, it is premised on LILCO's mischaracterization of the allegation contained in subparagraph C as a separate contention. As discussed in sections II and III, subparagraph C merely provides one reason for the allegation in basis paragraph 1 that WPLR-FM could not and would not function as an effective or adequate EBS station. The Governments do not contend that WPLR's lack of AM broadcasting capability standino alone neces-sarily constitutes a lack of compliance with the regulatory requirements.
In addition, LILCO's "lack of basis" argument, as well as l
the Staff's argument to the same effect (Staff Obj. at 7-8) ignores the fact that orioinal Contention EP 20 did allege that WALK lacked AM broadcasting capability at night, and that conten-i tion was admitted for litigation standing alone.
LILCO's second "lack of basis" argument -- that subparagraph C fails to mention the seven additional radio stations in the new EBS proposal (LILCO Obj. at 11) -- must be rejected as well.
Again, it is based upon LILCO's misconstruction of the Govern-ments' Contention. Egg sections II and III above. The Govern-ments allege that WPLR is incapable of serving as the primary EBS l station and that for that reason, among others, LILCO's new
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proposal is inadequate and fails to comply with the regulations.
The Governments also allege that LILCO's seven secondary stations do not compensate for WPLR's inadequacies. That allegation is set forth in basis paragraph 2 of the Contention, and provides an additional reason for the Contention's allegation that LILCO's new proposal is inadequate.
Furthermore, LILCO's discussion of its belief about the effectiveness of its secondary stations is an argument on the merits and must, therefore, also be rejected for that reason.
LILCO may argue during the evidentiary hearing that the Govern-ments' allegations are wrong on the merits; it is improper, however, to make merits arguments at the admissibility stage of the proceeding. As set forth in section IV above, the Govern-ments do not have to prove the truth of their factual allegations at the contention pleading stage.
Finally, LILCO's "WALK comparison" irrelevancy objection (LILCO Obj. at 11) must fail for the reasons set forth in section V above.
Suboaracraoh D LILCO's "lack of basis" objection to the allegations
! contained in subparagraph D (LILCO Obj. at 11) is without merit l
for the reasons set forth in section VI above. In making this argument, LILCO ignores the regulatory requirements set forth in 1
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the Governments' Contention, particularly 10 CFR Section 50.47(b)(6) and NUREG 0654 S II.E.5, concerning the ability to communicate emergency information to the public.
Moreover, LILCO's attempt to characterize subparagraph D as making allegations about WPLR's "popularity" and the Staff's similar' argument that allegations concerning WPLR's very low -
listenership rate are not relevant (Staff Obj. at S), must be rejected.
Both LILCO and the Staff miss the point of the facts alleged in subparagraph D. They also ignore the relationship of those factual allegations to the ones in basis paragraph 1 and in the fundamental allegation of the Governments' contention. As noted, the regulations require that there exist the capability of accom-olishino initial notification and instruction, and communication of emergency information, to the public. The Governments have l
stated as one reason for their allegation that WPLR could not and would not function as an effective or adequate primary EBS sta-tion, the fact that in actuality the oublic on Lono Island does not listen to WPLR. During the evidentiary phase of this pro-ceeding, LILCO will have an opportunity to argue, as it attempts to in its objections, that it can compensate for WPLR's lack of
- listenership (agg LILCO Obj. at 11). That, however, is an argu-1 ment on the merits which is not a proper admissibility objection.
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! Similarly, the Staff's assertion that "listenership in the EPZ to the EBS stations may very likely be different after sirens go off i
. . . (Staff Obj. at 8), is also an argument on the merits which cannot be adopted by this Board in the guise of an admissibility ruling.
Clearly, LILCO's change from one of the major Long Island radio stations to a station, in a different State, that the public on Long Island does not listen to, is a fact which this Board cannot ignore in evaluating the capability of that station to fulfill the vital function of being the primary EBS station.
LILCO's "WALK comparison" objection (LILCO Obj. at 11) is meritless for the reasons stated in section V.
Suboaraaraoh E LILCO's "lack of basis" objection to subparagraph E (LILCO Obj. at 11) cites the "same reasons" it discussed with respect to subparagraph D. The objection must be rejected by the Board for the reasons stated above.
LILCO's "lack of basis" argument also misstates NRC law in l suggesting that the Governments are obliged to provide at the contention pleading stage bases or "support" for the factual allegations which themselves comprise the bases of their conten-tions. Furthermore, while acknowledging, as it must, that the l Governments do in fact provide specific reasons for the allega-tions set forth in subparagraph E, LILCO then asserts that the
- Governments "have not given any basis for the underlying premise I
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-- that any EBS station itself 'must be perceived by the public as one likely and able to broadcast authoritative, accurate, reliable and credible information'" (LILCO Obj. at 12).
This LILCO objection is disingenuous as well as meritless.
First, as LILCO well knows, the Licensing Board has held that to be effective emergency information and protective action recommendations should be perceived by the public as accurate, reliable and from a credible source. Egg, e.o., Lono Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-85-12, 21 NRC 644, 661, 689-91 (1985). In addition, LILCO itself has so argued consistently throughout this proceeding. Indeed, one instance of that argument is cited in the Governments' EBS Contention. During cross-examination of LILCO's witnesses on Contention EP 20, it was LILCO's position that persons seeking information regarding a radiological emergency at Shoreham would tune into their local radio stations, rather than New York City or Connecticut stations, because the local stations are viewed as being reliable sources for emergency information. Tr. 5262-65 (March 29, 1984). EBS Contention at 6-7, n.5.-
Most recently, LILCO's witness Dennis Mileti testified in the Exercise proceeding that:
As I have previously testified (see PID at 660-63, 668-90) the research record provides a checklist of emergency public information char-acteristics that help most people perceive risk more accurately in an emergency. Whenever pos-sible, emergency information should be . . .
(4) disseminated from a source that includes people with organizational affiliations that enhance officialness, credibility (scientists and engineers usually have the most), and familiarity (source attributes).
LILCO's Testimony on Contentions Ex 38 and 2x 39 (March 13, 1987), ff. Tr. 3206 (OL-5) at 11.9/
Thus, LILCO's assertion that "there is no basi 3" for the underlying premise that the station providing local emergency information must be perceived as familiar, and one likely and able to broadcast authoritative, accurate, reliable and credible information, must be rejected.
LILCO's relevance objection (LILCO Obj. at 12) misstates the NRC's regulations relied upon in the Governments' Contention. It must be rejected for the reasons set forth in section VI above.
It should be emphasized that contrary to the characteriza-tions by LILCO and the Staff, the Governments are not suggesting in their contention that the NRC regulations include specific "listenership" requirements or "market position" requirements.
Egg Staff C5j. at 9; LILCO Obj. at 12, and 7. The Governments allege, however, that the regulatory mandate that there exist the capability of effectively communicating vital emergency informa-tion to the public requires that whatever "means" is chosen to fulfill this requirement have the capability of accomplishing it.
The mere identification of a radio station that exists somewhere 9/ Egg also, e.q,, LILCO Testimony on Contention 15 (Credi-bility) (March 30, 1984), ff. Tr. 10,396, at 50; LILCO Testimony on Contention 23, 65.C.2 and 65.F (Nov. 18, 1983) ff. Tr. 1470 at 26-35.
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in the world does not satisfy the regulations; the existence of the station must result an ability actually to communicate to the public at risk.
It appears from their objections that LILCO and the NRC
-Staff may disagree with the Governments' allegation that the public on Long Island will not listen to or perceive a Connecticut-based radio station as a credible or authoritative source of local emergency-related information. The time for them to present their positions on that subject, however, is during the evidentiary stage of this proceeding. Their disagreement on the merits of the Governments' allegation is not an appropriate admissibility objection.
LILCO's "outside EPZ" objection (LILCO Obj. at 12) must be rejected for the reasons set forth in section VI. Its "WALK comparison" objection (id.) must be rejected for the reasons set forth in section V. Furthermore, LILCO's argument that subpara-graph E ' reopens old issues," (id.) must be rejected because it is plairly incorrect. Neither the Governments nor this Board have in the past been faced with a proposal that a Connecticut-based radio station would be the primary EBS station or the primary source of emergency information to the Long Island public during a Shoreham emergency. To suggest that any prior litiga-tion could have, or did, deal with this issue is absurd. More-over, there is no basis to suggest that the Governments' EBS Contention see'<s to litigate LILC7's credibility or the credi-bility of LILCO's EBS messages. Neither of those subjects is
mentioned anywhere in the EBS contention. The matter which the Governments seek to address is clearly stated in their Conten-tion. The "reopens old issues" objection is simply inapposite and must be rejected.
Finally, the Staff's objection that subparagraph E "is not germane" because it does not deal with the radio transmission of EBS messages and the activation of tone alert radios (Staff Obj.
at 9) is again nothing but the Staff's misstatement of the Governments' Contention. As noted in section III above, subpara-graph E merely provides specification for the factual allegation contained in-basis paragraph 1; that allegation states one reason that LILCO's new EBS proposal for radio transmission of EBS message and activation of tone alert radios is inadequate and fails to comply with the cited regulatory requirements.
Suboaracraoh F The objections of both the Staff and LILCO to the allegation j contained in subparagraph F are plainly nothing but disagreements i
with that allegation. LILCO Obj. at 13; Staff. Obj. at 9-10, They must be rejected. Egg Section IV. The Governments urge that because LILCO's proposed lead EBS station is based in Connecticut, it is not a local broadcast station and therefore l fails to comply with the requirement in 10 CFR Part 50, Appendix 1
E $ IV.D.2. LILCO and the NRC Staff disagree with the Govern-ments' interpretation of the regulation and seek to air that disagreement in the form of an admissibility objection. .Tndeed,
LILCO attempts to argue about other EBS systems and other nuclear power plants in making this so-called "objection." Egg LILCO Obj. at 13, n.8. As discussed in section IV above, it is improper to argue or for the Board to decide the merits of the allegations set forth in a contention at the admissibility stage of a proceeding. Moreover, if, as LILCO suggests, the matter raised in subparagraph F is a legal rather than a factual issue, perhaps there will be no evidence presented on it and it can be addressed in the parties' proposed findings of fact. Egg Obj.
at 13, n.9. In any event, neither the Staff nor LILCO have stated an appropriate admissibility objection to the allegation set forth in subparagraph F.
The Basis in Paracraoh 2_
As with the basis in paragraph 1, neither LILCO nor the Staff ever addresses the allegations set forth in paragraph 2 as a basis for the Governments' contention stated in the first paragraph. Instead, they dissect, and then address as if they were separate contentions, the allegations set forth in the lettered paragraphs which provide the specificity for the state-ment of basis in paragraph 2. Their entire approach to basis 2, l therefore, must be rejected for the reasons discussed in sections i II-IV above.
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{ Paragraph 2 sets forth a second basis for the Governments' l
l contention that LILCO's new provisions for radio transmission of EBS messages and other emergency information are inadequate and
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the Plan fails to comply with cited regulatory requirements. The basis set forth in paragraph 2 is that LILCO's proposed secondary stations ~could not and would not compensate for the inadequacies
.and ineffectiveness of WPLR as the primary EBS station, and they could not and would not function adequately or effectively to transmit EBS messages or emergency information. The lettered subparagraphs which are part of basia 2 provide additional specificity for the factual allegations contained in basis 2.
Subparacraoh A LILCO's "lack of basis" objection (LILCO Obj. at 14) is the same as the one it made to subparagraph C of basis number 1, and must be rejected for the reasons stated. In addition, this version of its objection must also be rejected because it at-tempts to argue the merits of the contention by referring to documents LILCO attached to its summary disposition motion. This
' objection, as well as the similar one made by the Staff (Staff Obj. at 10), also ignores the fact that Contention EP 20 made similar allegations with respect to WALK and was admitted standing alone.
The Staff's additional objection that "no factual support is given for the statement that WELI cannot be heard in the southern part of the EPZ," (Staff Obj. at 11) is a clear violation of NRC case law. As noted in section IV above, the Governments are under no obligation to provide their evidence in their Conten-
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tion, nor are they required to grovide at the pleading stage the factual underpinnings for the ellegations which form the bases for their Contention. .
LILCO's "outside EPZ" objection (LILCO Obj. at 14) must be rejected for the reasons set forth in section VI above. Its "WALK comparison" and "reopens old issues" objections (id.) must also be rejected for the reasons already discussed.. Egg section V above.
Suboaracraoh B LILCO and the Staff object to this subparagraph by making essentially the same argument they make concerning subparagraph D of basis 1. Egg LILCO Obj. at 14; Staff Obj. at 11. The argu-ments must be rejected here for the same reasons stated witn respect to subparagraphs D and E of basis 1.
LILCO's "reopens old issues" objection (LILCO Obj. at 14) merely refers to its similar objection to subparagraph E of basis
- 1. It is without merit here just as it was with respect to subparagraph E. Similarly, LILCO's "WALK comparison" objection (LILCO Obj. at 15) is without merit for the reasons stated in section V above.
Suboaracraoh C The primary objection of both the Staff and LILCO to the allegations contained in subparagt.aph C relies upon their assertion that NRC r'egulations do not require an ability to communicate with the public outside the 10 mile EPZ. Egg LILCO Obj. at 15; Staff Obj. at 12-13. As demonstrated in section VI, however, this interpretation of the regulations by LILCO and the Staff is clearly incorrect and cannot be accepted by the Board.
These arguments clearly ignore the regulatory provisions cited by the Governments in the initial paragraph of their Contention, as well as the additional ones referenced in subparagraph C itself.
We do not repeat here the discussion of this subject which is contained in section VI, wheere we demonstrate that these objections are without merit.
LILCO's "reopens oli issues" objection to the last sentence of subparagraph C (LILCO Obj. at 15) must be rejected because it is wholly without merit. The sentence observes that the inade-quacy of LILCO's EBS system referenced in subparagraph C -- that is, its inability to notify or communicate emergency information to an entire segment of the population at risk -- is a violation of LILCO's own plan provisions. It is ridiculous to characterize that statement of fact as a "gratuitous attempt to relitigate" issues arising out of LILCO's performance during the 1986 Exer-cise. Clearly, LILCO's 1986 Exercise performance had nothing to do with its 1987 proposal to use a new EBS system with the defi-ciencies identified in the Governments' Contention. No radio stations at all participated in the 1986 Exercise, and the actual capabilities of LILCO's then-existing EBS (using WALK) were not demonstrated in the Exercise at all. Eeg Lono Island Lichtino i
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C21 (Shoreham Nuclear Power Station, Unit 1), LDP-87-31, 26 NRC (December 7, 1987) slip op. at 24. Thus, LILCO's objection is totally off the mark and must be rejected.
Finally, the Staff's objection that "there is no factual basis for the bold assertion that the proposed EPZ does not provide a receivable signal outside tre EBS," (sic) (Staff Obj.
it 12-13) is inconsistent with well-6stablished NRC case law concerning the admissibility requirements. There is no obliga-tion to provide the factual underpinning $ of the basis set forth in a contention at the pleading stage. And, the Staff's asser-tion that the matters alleged in subparagraph C are "not remotely related to original Contentions 20 and 57 or to the scope of permissible issues as framed by the Commission or the Licensing Board," (Staff Obj. at 13) is based upon the Staff's misstatement of the Governments' contention as well as its distortion of this Board's December 21 Order. Egg sections II, III and V above. It must be rejected.
The Basis in Paracraoh 3 Both LILCO and the Staff argue that basis 3 should be rejected in its entirety because issues related to evacuation shadow were discussed in earlier portions of this proceeding.
Egg LILCO Obj. at 16; Staff Obj. at 14. This objection is inap-posite and should be rejected. It is true that other aspects of i
this proceeding have included contentions relating to voluntary evacuation in varying contexts. It is also true, however, that I
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as alleged in paragraph 3 of the Governments' EBS Contention, one "impact" of LILCO's new EBS proposal is to create new and addi-tional reasons that substantial voluntary evacuation would occur if LILCO's latest Plan were used to respond to a Shoreham emer-gency. Basis paragraph 3 of the Governments' EBS Contention includes specific reasons to support the allegation made in that paragraph, includino the findinos of this Board, which both the Staff and LILCO conveniently ignore in their objections.
This Board cannot ignore that the allegations contained in basis paragraph 3 are fully consistent with its December 21 Order, in that they relate directly to the "impact" of LILCO's "chances" in its EBS proposal. Its prior proposed system did not include the gaps in EBS coverage which characterize its new system. Clearly, no previous litigation addressed the impact of such gaps upon the adequacy and effectiveness of an EBS system.
This proceeding is the first opportunity for such discussion, since it is intended to deal with LILCO's new proposal. And, in basis paragraph 3, the Governments have alleged, with specifi-city, why LILCO's new proposal would result in substantial voluntary evacuation and why that result renders its new proposal ineffective and inadequate (as stated in the Contention's first paragraph). The allegations in basis paragraph 3, viewed in the proper context of the Governments' EBS Contention, meet the admissibility requirements which must govern this Board's decision on the admissibility issue. The LILCO and Staff objections are thus without merit.
4 LILCO's "cutside EPZ" objection (LILCO Obj. at 17) must be rejected for the reasons discussed in section VI above. Similar-ly, its "lack of basis" objection -- that "only consideration of shadow originating from within the EPZ is proper" (14.) -- must be rejected for the same raason. The remainder of LILCO's lack of basis objection is a thinly disguised argument on the merits of the allegations contained in paragraph 3. Egg LILCO Obj. at 17-18. LILCO merely states its disagreement with the allegations contained in basis paragraph 3, and suggest that the Governments needed to plead their evidence, or additional factual under-pintd ngs for their alleged bases, in order to state an admissible contention. NRC case law is clear that such is not required, and therefore LILCO's objection must be rejected. Egg section IV above.
The Basis in Paraaraoh 4 LILCO's so-called "objection" to the allegations contained in paragraph 4 is somewhat unclear. On the one hand, it appears that LILCO is withdrawing its reliance Upon an "informal alerting process," in stating "there is no litigable issue because LILCO does not rely on the informal alerting process." LILCO Obj. at
- 18. If that is the case, then there is no need to litigate the effectiveness of such a system. On the other hand, if LILCO does intend to cite such a process in response to the Governments' allegations that its proposed system is ineffective and inade-quate, for examplo, by asserting its "belie [f] that informal alerting may help to spread notification of a Shoreham accident" (agg LILCO Obj. at 18), then the Governments are entitled to respond to that defense.
In other words, LILCO may not have it both ways; either it wants to be able to discuss the informal learning process, in which case the Governments are entitled to contest it; or, it does not intend to rely on such a process, in which case there is no need to contest it.lS/ The Go';ernments suggest that LILCO be required to state its intentiens clearly on this subject before any decision is made concerning the basis in paragraph 4 of the Governments' contention.
VIII. CONCLUSION For the foregoing reasons the Governments' EBS Contention should be admitted in its entirety.
Respectfully submitted, l
E. Thomas Boyle Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788 l
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IS/ This confusion concerning LILCO's position is a result of the requirement that the Governments submit a contention on LILCO's general EBS proposal prior to the existence of any formal clan revision or procedures on that system.
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Karl4 J.-Letsch f Michael S. Miller Christopher M. McMurray KIRKPATRICK & LOCKHART 1800 M Street, N.W.
fiouth Lobby - 9th Floor Washington, D.C. 20036-5891 Attotheys for Suffolk County z
Fabian G. Palomino
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hl Richard J. Zahnleuter
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Special Counsel to the Govetnor f of the State of New Yorh.
Executive Chamber, Room 229 .
Capitol Building Albany, New York 12224 Attorneys for Mario M. Cuono, Governor of the State of Ne'e York
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Stdphen Twomey,g.Latham Latham & Shea P.O. Box 398 33 West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton l
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a DOCKETED U$NHC Februarv 5, 1988 UNITED STATES OF AMERICA 18 FEB -8 P3 :58 NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensina h % IA[{'
BRANCH
)
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 GOVERNMENTS' RESPONSE TO STAFF AND LILCO OBJECTIONS TO THE EMERGENCY PLANNING CONTENTION RELATING TO LILCO'S NEW EMERGENCY BROADCAST PROPOSAL have been served on the following this 5th day of February, 1988 by U.S.
mail, first class.
James P. Gleason, Chairman
- Mr. Frederick J. Shon*
Atomic Safety and Licensing Board Atomic Safety and Licensing Board l U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 l
James P. Gleason, Chairman
- William R. Cumming, Esq.
513 Gilmoure Drive Spence W. Perry, Esq.
Silver Spring, Maryland 20901 Office of General Counsel Federal Emergency Management Agency Dr. Jerry R. Kline* 500 C Street, S.W., Room 840 Atomic Safety and Licensing Board Washington, D.C. 20472 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 W. Taylor Reveley, III, Esq.
Hunton & Williams Fabian G. Palomino, Esq. P.O. Box 1535 Richard J. Zahnleuter, Esq. 707 East Main Street Special Counsel to the Governor Richmond, Virginia 23212 Executive Chamber, Rm. 229 State Capitol Albany, New York 12224 J
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l Joel Blau, Esq. Anthony F. Earley, Jr., Esq.
Director, Utility Intervention General Counsel N.Y. Consumer Protection Board Long Island Lighting Company Suite 1020 175 East Old Country Road Albany, New York 12210 Hicksville, New York 11801 E. Thomas Boyle, Esq. Ms. Elisabeth Taibbi, Clerk Suffolk County Attorney Suffolk County Legislature Bldg. 158 North County Complex Suffolk County Legislature Veterans Memorial Highway Office Building Hauppauge, New York 11788 Veterans Memorial Highway Hauppauge, New York 11788 Mr. L. F. Britt Stephen B. Latham, Esq.
Long Island Lighting Company Twomey, Latham & Shea Shoreham Nuclear Power Station 33 West Second Street North Country Road Riverhead, New York 11901 Wading River, New York 11792 Ms. Nora Bredes Docketing and Service Section Executive Director Office of the Secretary Shoreham Opponents Coalition U.S. Nuclear Regulatory Comm.
195 East Main Street 1717 H Street, N.W.
Smithtown, New York 11787 Washington, D.C. 20555 Alfred L. Nardelli, Esq. Hon. Patrick G. Halpin Assistant Attorney General Suffolk County Executive New York State Department of Law H. Lee Dennison Building 120 Broadway, Room 3-118 Veterans Memorial Highway New York, New York 10271 Hauppauge, New York 11788 MHB Technical Associates Dr. Monroe Schneider 1723 Hamilton Avenue North Shore Committee Suite K P.O. Box 231 San Jose, California 95125 Wa$ing River, New York 11792 L Mr. Jay Dunkleburger George E. Johnson, Esq.
New York State Energy Office Edwin J. Reis, Esq.
Agency Building 2 U.S Nuclear Regulatory Comm.
Empire State Plaza Office of General Counsel
! Albany, New York 12223 Washington, D.C. 20555 l David A. Brownlee, Esq. Mr. Stuart Diamond I
! Kirkpatrick & Lockhart Business / Financial l 1500 Oliver Building NEW YORK TIMES Pittsburgh, Pennsylvania 15222 229 W. 43rd Street New York, New York 10036 l
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Douglas J.;Hynes, Councilman Town. Board of Oyster Bay Town Hall Oyster Bay, New York 11771
- By Hand
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AS Karl& J.
Letsf KIRKPATRICK & LOCKHART 1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C. 20036-5891 l
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