ML20150D081
| ML20150D081 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 03/17/1988 |
| From: | Matchett S HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20150D033 | List: |
| References | |
| CLI-87-05, CLI-87-12, CLI-87-5, OL-3, NUDOCS 8803230083 | |
| Download: ML20150D081 (13) | |
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z LILCO, March 17,1988 00CKETED UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board i
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In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station, ) (EBS)
Unit 1) )
LILCO'S RESPONSE TO INTERVENORS' MOTION FOR RECONSIDERATION OF BOARD'S FEBRUARY 24,1988 C.sDER RULING ON EBS CONTENTIONS On March 7,1988, the Intervenors filed their "Suffelk County, State of New York and Town of Southampton Motion for Reconsideration of this Board's Memorandum and Order Ruling on Contention Relating to LILCO's Emergency Broadcast System" ("Mo-tion"). LILCO opposes that Motion.
I. Introduction In its February 24, 1988 Memorandum and Order, the Board excluded bases 1.D, 1.E, 2.B. 2.C, 3 and 4 from the admitted EBS content,lons. Memorandum and Order (Board Ruling on Contentions Relating to LILCO's Emergency Broadcast System),
February 24, 1988. The Board also excluded all references to comparisons between WPLR and other radio stations no longer in the EBS and to coverage of the EBS outside the 10-mile EPZ. E at 3-4. The Board cited the following reasons for excluding this material: (1) there is no regulatory foundation for a requirement that an EBS cover areas beyond 10 miles, (2) the standards against which WPLR must be measured are the NRC regulations, not the capabilities of previous system members, (3) the excluded bases are not relevant to the EBS network's ability to accomplish its emergency task, i g, to provide messages to the public in the 10-mile EPZ during an emergency, and (4) the excluded bases are outside the ambit of the previously litig;ted EBS issues that were reopened by the Commission in CLI-87-05 % at 3-8.
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u Intervenors move the Board to reconsider its rulings,Masserting that the Board's decision "is inconsistent with the Commission's remand Order, this Board's own rulings, the Atomic Energy Act's hearing requirements, and fundamental due process." Motion at 2. In particular, Intervenors assert in regard to the Board's exclusion of references to coverage outside 10 miles that the Board's ruling is inconsistent with the regulations, with LlLCO's own Plan, and with its prior decision in the PID. % at 4-7. Moreover, In-tervenors assert that the Board's ruling on basis 3 (shadow phenomenon) lacks analysis and is contrary to the PID. % at 7-9. Finally, Intervenors assert that the Board's ex-clusion of bases concerning listenership and credibility of the radio stations is "both f actually and legally erroneous." Id 2 at 9.
The Board should deny Intervenors' Motion. It repeats the same arguments Inter-Venors made in their 42 page Response to LILCO's and the Staff's objections to the con-tentions. The Board properly rejected those arguments and need not consider them again here. See Mississippi Power & Light Co. (Grand Gulf Nuclear Station, Unit 1),
LBP-84-23,19 NRC 1412,1414 (1984) (Reconsiceration not warranted in the absence of new arguments, new issues, or new information); see also Nuclear Engineering Co.
(Sheffield, Illinois Low-Level Radioactive Waste Disposal Site), CLI-80-1,11 NRC 1, 5 (1980); Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2),
ALAB-844, 24 NRC 216,217 (1986). The February 24 Memorandum and Order accurate-ly interprets the regulatory requirements, properly limits the scope of litigable issues under the Commission's reopening order and previous Licensing Board orders, and ade-quately explains the reasons for the Board's decision. There is no reason for the Board to reconsider its February 24 ruling, y Intervenors do not seek reconsideration of the Board's exclusion of basis 4, con-cerning informal notification. Motion at 3. Nor, apparently, do the Intervenors seek reconsideration of the Board's exclusion of all references to WALK and other stations previously in the EBS, since the Motion does not mention that ruling.
II. Argument A. The Board Properly Excluded Contentions Alleging Lack of Broadcast Coverage Beyond the 10-mile EPZ The Board properly rejected any notion in the contentions that the EBS must provide coverage to areas outside the 10-mile EPZ. As the Board found, and as Interve-nors do not now deny, the regulations do not expressly require that the EBS network cover areas outside 10 miles. Memorandum and Order at 3. Nor, in LILCO's view, do they implicitly require such coverage.
Title 10 C.F.R. S 50.47(b)(5) requires that the content of initial and followup messages to responses or-ganizations and the public has been established; and means to provide early notification and clear instruction to the popu-lace within the plume exposure pathway Emergency Planning Zone have been established.
10 C.F.R. S 50.47(b)(5) (emphasis added). Similarly, NUREG-0654 provides that "the offsite response organization shall establish administrative and physical means, and the time required for notifying and prcviding prompt instructions to the public within the plume exposure pathway Emergency Planning Zone . . . ." NUREG-0654, Supp.1, S II.E.6 (November 1987) at 11. Nowhere in 10 C.F.R. S 50.47(b)(5) or NUREG-0654 is it stated, or even suggested, that a licensee must show administrative and physical means to alert and provide instructions to people outside the 10-mile EPZ.
Intervenors assert that the EPZ limitation in 10 C.F.R. S 50.47(b)(5) and NUREG-0654 S II.E.6 applies only to early notification, and that the absence of such a limitation l In references to "initial and followup messages" in S 50.47(b)(5) and NUREG-0654 l
l 2/ Section 50.47(b)(6) also mentions communications "to the public": "Provisiens exist for prompt communications among principal response organizations to emergeacy personnel and to the public." 10 C.F.R. S 50.47(b)(6). As LILCO noted in its Objec' ions to the EBS contentions, however, this section appears to be directed at communications among emergency response personnel and organizations. This view is supporte( by a j review of the parallel Evaluation Criteria in NUREG-0654, which do not mentior com-I munications to the public. NUREG-0654, Supp.1, S II.F (November 1987) at 13.
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S II.E.5 means that those provisions must be construed broadly to cover "the public" outside the 10-mile EPZ. Motion at 3-4. This argument should be rejected. Where the NRC and FEMA intended to set specific requirements for coverage capability, they did so, by requiring "physical and administrative means" of providing emergency instruc-tions to the populace in the 10-mile zone. S_ee 10 C.F.R. S 50.47(b)(5) and NUREG-0654, Supp.1, S II.E.6. Nowhere do the regulations or guidance require such "physical and ad-ministrative means" to provide emergency messages to people beyond 10 miles, and certainly not to the entire 50-mile ingestion pathway.EI The Board correctly summarized the planning basis reflected in the regulations as follows:
NRC's regulatory scheme for emergency planning is premised on detailed planning within the EPZ to the degree that an ex-pansion of response effort can be implemented beyond it if proven necessary. S__ee NUREG-06541.D.d.
Memorandum and Order (Feb. 24,1988) at 4. Intervenors' disagreement with this state-ment, and their assertion that both the 10-mile and 50-mile EPZ's require detailed plan-ning, Motion at 4, must be dismissed as a challenge to the regulations and contrary to the Commission decision in CLI-87-12. The regulations clearly call for a generic 3/ The Suffolk County Legislature recently passed a resolution requesting that the Long Island members of the EBS withdraw from the system. While LILCO does not con-done this attempt to interfere with legitimate contractual relationships, the resolution is relevant for its statement of the Legislature's view of the regulatory requirements.
l That view is stated in one of the resolution's introductory paragraphs:
l l WHEREAS, Federal Regulations require any emergency l evacuation plan for such a nuclear power station to include a network of radio stations to be heard within a ten mile ra-dius of the Shoreham plant so as to alert residents as to the l
l necessity to evacuate or shelter themselves in the event of an accident at the plant; l
See Sense 7-88, Memorializing Resolution Requesting Long Island Radio Stations to De-l cline P&rticipation in LILCO/Shoreham Evacuation Plan, March 1,1988 (attached to l this Response). Clearly, the County government's position on EBS requirements con-l flicts with that being presented here by its lawyers, i
t.
10-mile plume exposure pathway EPZ, and require detailed emergency plans only within that zone. See 10 C.F.R. S 50.47(b); NUREG-0654 51.D. "The choice of the size of the Emergency Planning Zones represents a judgment on the extent of detailed planning which must be performed to assure an adequate response base"; the 10-mile EPZ was established in part because "detailed planning within 10 miles would provide a substan-tial base for expansion of response efforts in the event that this proved necessary."
l NUREG-0654, S 1.D, at 11-12. Intervenors' argument that LILCO must demonstrate EBS coverage to the ingestion pathway is a bald challenge to the regulations.
In essence, what the Intervenors have tried to do under the guise of these EBS contentions is to reargue a position that they lost before the Commission little more than four months ago. That is, they seek to expand the 10-mile EPZ to assure an ade-quate base for ad hoc response beyond ten miles and to accomodate the large shadow evacuation that Intervenors claim will materialize. These arguments were laid to rest by the Commission in CLI-87-12.
In CLI-87-12, the Commission upheld the Licensing Board's exclusion of conten-tions 22.B and 22.C, which alleged, respectively, that the EPZ should be expanded to provide an adequate base for ad hoc emergency response efforts beyond 10 miles in very severe accidents, and that the EPZ should be expanded to minimize the occur-rence and effects of the so-called shadow phenomenon. Long Island Lighting Co.
(Shoreham Nuclear Power Station, Unit 1), CLI-87-12,25 NRC , s_lig l ol at 1 (Nov.
- 6. 1987). The Commission held that the two excluded contentions constituted a chal-lenge to the regulations' generic premise that detailed planning is only required within the 10-mile EPZ, and that such planning would provide an adequate base for jLd hoc ex-pansion of response efforts beyond 10-miles. % at 13-17. Here,Intervenors argue that detailed planning, including EBS coverage, is required in both the 10- and 50- mile EPZs. Motion at 4. The regulations and CLI-87-12 preclude this interpretation.
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Intervenors also argue that "to suggest that the ability to communicate such in-formation to persons outside the 10-mile EPZ is not required, is inconsistent with LILCO's own Plan and with its position throughout this litigation." Motion at 5. This argument stems from the fact that the LILCO Plan, and some of the sample EBS mes-sages, contain information addressed to persons outside 1( miles. Such information is included in the Plan in recognition that some people beyoid 10 miles will in fact hear the messages, because the EBS broadcast signal will not stcp at the EPZ perimeter as if it were a solid wall. In any case, the fact that the Plan centains such provisions does not mean that the regulations require them; the Plan contains many protective mea-sures that the regulations do not require. S_ee, el, PID at 760 ("the inclusion of the tone alert radio system in the Plan is simply a commendably prudent addition to the re-quirements").SI The Board properly excluded consideration of EBS coverage outside the 10-mile EPZ. Its statement, that "the Board knows of no requirement in NRC regulations or case law construing them which imposes an obligation on an Applicant to communicate through EBS messages to members of the public outside the EPZ," is understandable, because no such requirement exists.
f/ Intervenors also assert that the Board's ruling is inconsistent with the following language from the PID: "The Board finds no barriers to LILCO's ability to warn the pub-lic through EBS messages . . ." Motion at 6. The full quote from the PID is as follows:
The Board finds no barriers to LILCO's ability to warn the public through EBS messages or indeed to telephone individ-ual farmers and food processors with appropriate messages concerning the withholding of food products from the mar-ket. LILCO has compiled lists of producers and processors for this purpose.
PID at 877. See also PID at 876 ("LILCO will communicate recommended protective actions to farmers, food processors, and other food chain establishments by telephone and by EBS bulletins")(emphasis added). Clearly, the PID, when quoted in full context, is consistent with the Board's challenged finding that the LILCO Plan's EBS provisions "reference (s) merely one method of preparing for the necessity of an expanded re-sponse,if conditions requiring it materialize." Memorandum and Order at 4.
A B. The Board Properly Excluded Intervenors' Shadow Phenomenon Contention Basis 3 of Intervenors' contention alleged that substantial shadow evacuation would occur as a result of alleged gaps in nighttime EBS coverage west of the 10-mile EPZ, low credibility of an out-of-state radio station, unavailability of emergency infor-mation from "f amiliar" stations, and the substantial likelihood of distorted information.
Contentions at 8-9; Memorandum and Order at 7. The Board properly rejected this basis on the ground that it is outside the scope of litigable issues in this proceeding.
Memorandum and Order at 7.N The history of litigation on EBS issues is set forth in detail in LILCO's November 6,1987 Motion for Summary Disposition of the WALK Radio Issue and in LILCO's January 27,1988 Objections to the EBS contentions. It is sufficient to note here that the Commission reopened the EBS issue with instructions for the Board to admit new contentions "only to the extent they assist in focusing further the litigation on earlier-admitted issues." CLI-87-05, 25 NRC (June 11,1987), slip op. at 10. In denying LILCO's summary disposition motion, the Board explained that the "earlier-admitted is-sues" concerned the adequacy of the emergency plan's provision for radio transmission of EBS messages and activation of tone alert radios." Memorandum and Order (Ruling on Applicant's Motion of November 6,1987 for Summary Disposition of the WALK Radio 1
Issue), December 21,1987, at 5.
5/ The Board ruled as follows:
The alleged impact of the deficiencies recounted here raise the spector of evacuation shadow, a subject raised by a num-ber of other contentions in this proceeding, but not the ones at issue here. Even if there were validity to the Intervenors' claim - that a significant shadow would develop as a result of the conditions cited - that issue would have no place be-fore us in our restricted coverage of LILCO's new EBS sys-tem.
Memorandum and Order at 7.
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The shadow phenomenon was never among the "eaJiler-admitted" EBS issues. As LILCO pointed out in its Objections to the contentions, and as the Board recognized in its February 24 ruling, Intervenors have raised the shadow phe lomenon issue on at least four prior occasions in this case: in Phase I, in the 1983-1984 emargency plan hearings, in the 1987 Exercise hearings, and in the reception center hearings last summer.
LILCO's Objections to Intervenors' Emergency Planning Contention (Jan. 27,1988) at
- 16. Intervenors' attempt to raise it again in connection with the narrowly-tailored EBS issues in this reopened proceeding is a gratuitous effort to expand the proceeding be-yond its intended scope. The Board properly rejected that attempt.E C. The Board Properly Excluded Contentions Concerning Listenership and Credibility The Board properly excluded bases 1.D,1.E and 2.B (concerning listenarship and credibilty of LILCO's EBS stations) because the allegations contained therein are (1) not relevant, (2) not within the scope of earlier-admitted issues, and (3) not rooted in NRC regulations. Memorandum and Order at 5-7. Intervenors assert that the Board's ruling is erroneous because (1) the contention did contain citations in support of bases 1.D and 1.E,(2) the Board's decision does not contain any enalysis, and (3) the excluded bases are in fact relevant. Motion at 9-12. Intervenors' arguments are wrong and should be dis-missed.
With regard to bases 1.D and 1.E, the Board ruled that "no particular regulatory requirement is cited here or elsewhere in support of these particular allegations."
Memorandum and Order at 5. Intervenors' retort is that a litany of citations was indeed provided in the first paragraph of the contention. Motion at 9-10.2/ That much is true; s/ The Board could have rejected the shadow contention for the additional reason that it is premised on the assumption that the EBS must provide coverage to areas out-side the 10-mile EPZ. As discussed above, that premise is wrong; the regulations contain no such requirement.
1/ Intervenors apparently think the Board failed to recognize that the citations in paragraph one of the contention are intended to apply throughout the contentions. This (footnote continued)
the contention in fact cites many regulatory and guidance provisions. The f act is, how-ever, that none of them is on point; they do not say anything about the listenership or credibility of EBS stations. Intervenors'self-serving attempt to graf t onto the regula-tions a requirement of their own making, that the system must be shown capable of ac-tually accomplishing notification and instruction, is creative, but finds no suppor*. In NRC regulations or FEMA guidance.
Intervenors claim they do not understand the Board's rullrg because the Board failed to give its reasons. Motion at 10. They further complain that the Board did not address Intervenors' arguments and instead simply disagreed with Intervenors en the merits of the contention. Id. These assertions are not corre:t.
The Board rejected these bases on three separate grvunds: they are irrelevant, outside the scope of earlier-admitted issues, and not supported by the regulations.
Memorandum and Order at 5-7. The Board explained that "the listenership rate of a lead radio station like WPLR and the public perception of that station are not issues de-signed to supply requisite information concerning the adequacy of the EBS system to operate in an emergency." E at 5. Clearly, the Board did not make a "merits" deci-sion. It simply ruled that further inquiry into the contention's merits would serve no valid purpose.
Finally, Intervenors repeat previous arguments that listenership and credibility are relevant considerations in evaluating the EBS. Motion at 10-11. The Board proper-ly considered and rejected these arguments, and adequately explained its rationale, f Memorandum and Order at 5-7. There is no reason for the Board to repeat that process.
(footnote continued) obviously is not the case. In rejecting basis 2.B, which contains exactly the same alle-gations as bases 1.D and 1.E, the Board found that the issues raised are not addressed by NRC regulatory requirements. Memorandum and Order at 7.
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4-A III. Conclusio_n _
For the reasons stated above, the Board should deny Intervenors' Motion to re-consider the EBS rulings.
Respectfully submitted,
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Don'ald P. IrwlV K. Dennis Sisk Scott D. Matchett Counsel for Long Island Lighting Company Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: March 17,1988 k
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SEBSE 7-88 Assigned to Energy Introduced by Legislator Thiele MEMORIALIZING RESOLUTION REQUESTING LONG ISLAND RADIO STATIONS TO DECLINE PARTICIPATION IN LILC0/SHOREHAM EVACUATION PLAN WHEREAS, the Suffolk County Legislature consistently expressed its opposition to the imposition of an evacuation plan for the Shoreham Nuclear Pow-er Station through Resolution Numbers 456-1982 and 111-1983; through numerous court challenges upholding and sustaining the validity of such resolutions; and through a united legal challenge before the Nuclear Regulatory Commission (NRC), the Federal Emergency Management Administration (FEMA), and the State Public Service Comission (PSC);and WHEREAS, several radio stations throughout Long Island have ap-parently agreed to participate in a February FEMA drill with LILCO by broadcasting emergency messages in the event of an accident at the Shoreham Nuclear Power Plant as psrt of such test; and WHEREAS, Federal regulations require any emergency evacuation plan for such a nuclear power station to include a network of radio stations to be heard within a ten mile radiuh of the Shoreham plant so as to-alert residents as to the necessity to evacuate or shelter themselves in the event of an accident at the plant; and WHEREAS, the participation of such i'adio stations assists LILCO in its efforts to open the Shoreham Nuclear Power Station while simultaneously ninder-ing the County's efforts to prevent such an opening of the Shoreham Nuclear Power Plant; now, therefore, be it RESOLVED, that this Legislature hereby requests all radio stations on Long Island which have agreed with LILCD to broadcast emergency messages in the event of an accident at the Shoreham Nuclear Power Station to terminate such parti-cipatica forthwith; and, be it further RESOLVED, that the Clerk of this Legislature is hereby directed to forward copies of tnis resolution to the following Long Islcnd radio stations contemplating such participation:
WRIV-AM I
WRHD-AM WRCN-FM WLIM-AM WGLI-FM WLNG-AN/FM y ..
This is to Certify That I, ELISABETH Taibbi, 0 Clerk of the County Legislature of the County of Suffolk, Dated: y -
have cenpared the foregoing copy cf SENSE resolution with
-the resolution ncy on file in this effice, and which was duly
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ardopted by the County Legislature of said County on L }Tarch 1, 1988, and that the same is a true and correct
_ _ , . _ _ transcript of said SENSE resolution and of the whole
- _ ' . .% hereof.
N. ' 4.C f In Witness *n* hereof, I have hereunto set ny hand
' 3- "- '{ - Mnd the official seal of the County Legislature of the County
.c f of Suffolk.
s.
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t i- LILCO, March 17,1988 00f.KETED uwc W MAR 21 P6 :08 CERTIFICATE OF SERVICE grag gp g. ,%7 00CKEimu A SE8vicE BRANLH In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
Docket No. 50-322-OL-3 I hereby certify that copies of LILCO'S REPLY TO INTERVENORS' MOTION FOR RECONSIDERATION OF THE BOARD'S RULING ON THE HOSPITAL EVACUATION ISSUE and LILCO'S RESPONSE TO INTERVENORS' MOTION FOR RECONSIDERATION OF BOARD'S FEBRUARY 24, 1988 ORDER RULING ON EBS CONTENTIONS were served this date upon the following by Federal Express as indicated by an asterisk, or by first-class mall, postage prepaid.
James P. Gleason, Chairman
- Atomic Safety and Licensing Atomic Safety and Licensing Board Appeal Board Panel 513 Gilmoure Drive U.S. Nuclear Regulatory Commission Silver Spring, Maryland 20901 Washington, D.C. 20555 Dr. Jerry R. Kline
- Atomic Safety and Licensing Atomic Safety and Licensing Board Panel Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 East-West Towers, Rm. 427 ~
4350 East-West Hwy. Richard G. Bachmann, Esq.*
Bethesda, MD 20814 U.S. Nuclear Regulatory Commission One White Flint North Mr. Frederick J. Shon
- 11555 Rockville Pike Atomic Safety and Licensing Rockville, MD 20852 Board U.S. Nuclear Regulatory Commission Herbert H. Brown, Esq.
- East-West Towers, Rm. 430 Lawrence Coe Lanpher, Esq.
4350 East-West Hwy. Karla J. Latsche, Esq.
Bethesda, MD 20814 Kirkpatrick & Lockhart South Lobby - 9th Floor Secretary of the Commission 1800 M Street, N.W.
Attention Docketing and Service Washington, D.C. 20036-5891 Section {
U.S. Nuclear Regulatory Commission Fabian G. Palomino, Esq. * '
1717 H Street, N.W. Richard J. Zahnleuter, Esq.
Washington, D.C. 20555 Special Counsel to the Governor Executive Chamber Room 229 State Capitol Albany, New York 12224
t, t Alfred L. Nardelli, Esq. Jonathan D. Feinberg, Esq.
Assistant Attorney General New York State Department of 120 Broadway Public Service, Staff Counsel Room 3-118 Three Rockefeller Plaza New York, New York 10271 Albany, New York 12223 Spence W. Pcrry, Esq.* Ms. Nora Bredes William R. Cumming, Esq. Executive Coordinator Federal Emergency Management Shoreham Opponents' Coalition Agency 195 East Main Street 500 C Street, S.W., Room 840 Smithtown, New York 11787 Washington, D.C. 20472 Evan A. Davis, Esq.
Mr. Jay Dunkleberger Counsel to the Governor New York State Energy Office Executive Chamber Agency Building 2 State Capitol Empire State Plaza Albany, New York 12224 Albany, New York 12223 E. Thomas Boyle, Esq.
Stephen B. Latham, Esq.
- Suffolk County Attorney Twomey, Latham & Shea Building 158 North County Complex 33 West Second Street Veterans Memorial Highway P.O. Box 298 Hauppauge, New York 11788 Riverhead, New York 11901 Dr. Monroe Schneider Mr. Philip McIntire North Shore Committee Federal Emergency Management P.O. Box 231 Agency Wading River, NY 11792 26 Federal Plaza New York, New York 10278 h5 A/-
Davidprlow Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: March 17,1988
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