ML20151A590
| ML20151A590 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 07/12/1988 |
| From: | Bachmann R NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#388-6737 OL-3, NUDOCS 8807200053 | |
| Download: ML20151A590 (14) | |
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s' . DOCKETED USHRC UNITED. STATES OF AMERICA . .
NUCLEAR REGULATORY COMMISSION '88 JUL 18 P3':28
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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD, - P ' f y' In the Hatter of )
L0f!G ISLAND LIGHTING COMPANYs Docket No. 50-322-Ot.-3
) (Emergency Planning)
(Shoreham Nuclear Power Statico, )
Unit 1) )
NPC STAFF RESF0fiSE TO LILCO'S'SECOND MOTION FOR SUMPARY DISPOSITION ON EBS ISSUES
, I. INTRODUCTION I By Peard Memorandum and Order dated June 21, 1988, the Licensing Board granted the June 20, 1988, motions of LILC0 and Intervenors for leave tc file summary disposition motions on LILC0's Emergency Broadcast System (EBS) issues.1/ The Staff hereby responds to and supports LILC0's Second Motion for Summary Dispositien.o.f the EBS Issue ("LILC0's Motion"),
filed on June 20,1988.S/
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In its filir.g of June 20, 1.988, the Staff indicated that new contentions might be appropriate on the EBS system. The Staff l(.
" recedes from that position and now does not believe that an opportunity to file new contentions is needed or appropriate.
Further, as we later detail, Revision 10 of the LILC0 emergency plan
- detailing LILC0's current EBS was submitted ir. May and the filing of any contenticas on that EBS ccheme would be untimely.
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Inter,anors' motion requested ten days to file its summery disposition rcotion. It is the Staff's understanding that the latter motion was due July'1, 1988. Powever, that motion was not fileo.
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2 II. DISCUSSION 4
A. Standards for the Emergency ~ Broadcast System The regulatory standards for the EBS are set forth in 10 C.F.R.
! 50.47(b)(5):
Procedures have been established for notification, by tha licensee, of State and local response organizations and for notification of emergency personnel by all organizations; the content'of initial and follta-up messages to response o ganizations and the public has been established; and
-means to provide early notification and clear instruction to the populace within the plume expo.ure pathway Emergency Planning Zone have been established.
Additionally,10 C.F.R. Part 50, Appendix E, 5 IV.D.3 requires that "euch nucicar power reactor licensee shall demonstrate that administrative and physical means have been established for alerting and providing prompt instructions to the public within the plume exposure oathway EPZ."
Guidance for the EBS is found in NbREG-0654/ FEMA-REP-1, Rev.1, Supp. 1, "Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants". This supplement to NUREG-0654 provides guidance "for those situations in which State and/or local governments decline to participate in emergency planning." NUREG-0654, Supp. 1 at 1. The evaluation criteria for the EBS are set forth in $6 II.E.5 and II.E.6:
- 5. The offsite response organization shall establish a system for disseminating to the public appropriate information contained in initial and follow-up messages received from the licensee including the appropriate notification to appropriate broadcast mcJia, e.g., the Emergency Broadcast System (EBS).
- 6. The offsite response organization shall establish administrative and physical means, and the time required for notifying and providing prompt instructions to the public within the plume exposure pathway [EPZ]. It shall be the licensee's responsibility to demonstrate that such means exist, regardless of who implements this requirement.
The offsite response organization shall have the administracive and physical means to activate the system.
4 Federal Communications Comission regulations provide in part for a ,
national emergency broadcast system (EBS). 47 C.F.R., Part 73, Subpert G, f 73.901 et seq. Section 73.935 states:
Date-To-Day emergencies posing' a threat to the safety of life and property: State Level and Operational (Local) Area Level Emergency Action Notification.
(a) State level or Operation (Local) Area Level. The EBS may be activated at this. level by AM, FM, and TV broadcast stations, at manager:ent's discretion, in connection with day-to-day emergency situations posing a threat to the safety of life and property. Examples of emergency situations which may warrant either an immediate or delayed response by the licensee are:
Tornadoes, hurricanes, floods, tidal waves, earthquakes, icing conditions, heavy snows, widespread fires, discharge of toxic gases, widespread power fe.ilures, industrial explosions, and civil disorders.
(b) Stations originating en,ergency comunications under this section shall be deemed to have conferred rebroadcast authority, asrequiredbysection325(a)oftheCommunicationsActof1934, as amended; and t 73.1207 of the rules and regulations, on other participating stations.
B. LILC0's EBS Plan Provisions Revision 10 of the LILCO nian provides procedures for the public notification required by the NRC regulatias. The LILC0 plan provides:
The EBS for the Nassau and Suffc'k Counties Operational Area is comprised of over 30 Long Island radio stations. The New York State EBS Plan designates WCBS'in New York City as tk. nrimary originating station (referred to as "PRI CPCS-1") foi a Nassau and Suffolk Counties operational area. WCBS is a fifty kW
, clear-channel, 24-hour AM station whose signal provides coverage over the entire Shoreham 10-mile EPZ. With its cascading relays it ensures redundant coverage of the Shoreham EPZ. Included in the State network is WALK in Patchogue, fomerly the CPCS in the Shoreham local EBS.
In the event of a Shoreham emergency declaration, the Director of local Response will seek permission from the Suffolk County Executive, or his designee, to activate the Nassau-Suffolk Operational Area EBS prior to issuing an EBS message. OPIP 3.1.1, Attachment 10, Step D. In the event that the LERO Director is unable to contact the Suffolk County Executive or some other responsible County official in a timely manner, the LERO Director will seek pemission from New York State to
activate the EBS through the New York State Emergency management
- office (SEM0). SEM0 is designated by the New York State EBS Operational Plan at 4 as being responsible for activating the State level EBS.
The Director of Local Response will request the official WCBS-EBS authentication code for WCBS or, as necessary, other authentication assistance from pertinent County or State officials. If that official is unable to provide the official authentication code.information for WCBS in a timely manner, the LET,0 Director will, using his best judgment in light of emergency circumstances, request official permission to contact (CBS directly and will ask WCBS to verify by return phone call, in accordance with the Nassau-Suffolk Operational Area EBS
'mplen.entation procedures. The LERO Director, or the LERO Coordinator of Public Inform tion, will then activate the EB! l system as detailed in 0 PIP 3.3.4 and 3.8.2, Section 5.1.4 LER0's procedures fur activating the Nassau - Suffolk Operational Arca EBS and broadcasting emergency infortnation conform directly with the existing implementation procedures in
' the Nassau - Suffolk Operationa Area EBS Plan. OPIP 3.8.2, i Sectinn 5.1.4(b) (1)-(5). If there is any problem or delay in l obtaining authentication with WCBS, the LERO Director, using his
! best judgment, in his discretion will seek permissicn to activate the Shoreham Local EBS network which is a backup to the New York State system based on WCBS. OPIP 3.1.1, Attachment 10, Step D.
LILC0 Plan, pp. 3.8-6, 3.8-7 (Rev. 10).
OPIP3.8.2 (Rev. 10) of the LILCO Operating Procedures provides at paragraph 5.1.a:
The designated New York State EBS station for Nassau and Suffolk is WCBS in New York City. If the State EBS is to be used do the following:
a) Provide protective action r? commendations to governm:nt officials fcr in;1usion in their EBS message, or
, b) If directed by the LERO Director contact WCBS directly. Authentic 1 tion may be accomplished by use j of code word providei' by State or County officials or i
- returned phone call. Transmit EBS n'essage directly to WCBS as follows
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- 1) Contact WCBS via phone. The current 24-heur newsroom phone number is (212) 975-2'27.
i l 2) Use the following format when contacting WLBS.
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7 "This is (name/ title) of the Local Emergency Response Organization. I have been authorized by (name/ title) to request that the Emergency Broadcast System te activated for the Nassau and Suffolk ~ Counties New York 0perational Area because of an emergency declaration at the Shoreham Nuclear Power Station."
- 3) Give date, time and the EBE authentication code.
- 4) Upon authentic' tion, request that station personnel prepare to broadcast the message live "
and simultaneously record the message for subsequent broadcast. Request the message be replayed immediately and every 15 minutes thereafter.
- 5) When cued by WCBS personnel, read the approved EBS message.
C. Contention 5 The Contentions relevant to the EPS are 5, and 20 and 57. As set forth in the Partial Initial Decision, the Preamble to the "legal authority" contentions, Contentions 1-10, reads:
The LILC0 Transition Plan specifies that in an emergency, the actions described in Contentions 1 through 10 below may be ordered to be taken by LTLC0 personnel. Contentions 1 through 10 allece thac LILCO personnel do not have the authority to
, order er te perform those actions. Accordingly, as alleged in l these conientions LILC0 cannot, as a matter of law, exercise the I
responsib lities identified in Contentions 1-10, and therefore, contrary to 10 C.F.R. S 50.47(a)(1), its Plan could not and would not be implemented. LILC0's lack of legal authority to perform actions assigned to LILC0 under the Transition Plan also results in noncompliance with 10 C.F.R. 9 50.47(b)(3) and NUREG 0654 ! A.2.6, in addition to other regulatory requirements as set forth in contentions which follow.
l L8P-85-12, 21 NRC at 958 l
L Contention 5 originally read:
l l LILC0 is prohibited the broadcast by lawoffrom and contents activating emergency sirens system broadcast and directing)
("EBS" messages to the public. N.Y. Penal Law 96 190.25(3), 195.05 (McKinney); N.Y. Exec. Law % 20 et seq. (McKinney). Under the 1
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r LILC0 Plan, LILC0 employees are expected to order that sirens be '
activated. They are also expected to determine the contents of EBS messages, to determine that an EBS broadcast should be made, and to direct that such broadcast occurs. (SeeOPIPs3.3.4and 3.8.2) Because LILC0 employee; are prohibited by law from performing such actions, the LILC0 Plan cannot and will not be implemented, and the Plan fails to comply with 10 C.F.R. 9 50.47(b)(5) and NUREG-0654 SS II.E.5 and E.6. . Moreover, in assigning-such functions to LILC0 employees, the Plan fails to comply with 10 C.F.R. Part 50, Appendix E, ! IV.D.3.
LBP-85-12, 21 NRC at 960.
The Commission and this Roard have determined that state and local governments would use their best efforts to protect the public in the event of a radiological emergency. See 10 C.F.R. 9 50.47(c)(1); Long Island Lighting Co. (Shoreham Nuclear Station, Unit 1), CLI-86-13, 24 NRC 22(1986); Statement of Consideration of the Adequacy of Off-Site State Energency Planning For Nuclear Power Plants., 53 Fed. Reg. 42078, 42084-85 (1987);Shoreham,L8P-88-9,27NRC355,368-370(1988).
In light of these Commission directions, this Board reformulated Contention 5, in its "Confirmatory Order and Memorandum (Ruling on LILC0's Motion for Summary Disposition of Contentions 1, 2, 4, 5, 6, 7, 8 and 10, and Board Guidance for Litigation), dated February 29, 1988, at 2, to read:
l Whether LILC0's emergency plan and the best efforts response of the State and County governments, will satisfy regulatory l
) requirements concerning the activation of sirens and the l
directing of emergency broadcast systems messages.
Under a "best efforts" response, the governments will grant the permission to be sought under Revision 10 at pp. 3-8.6 and 3-8.7 of the LILC0 emergency plan to permit the use of the emergency broadcast system to allow notification to the public of a radiological emergency. As the l
Ccmmission stated in Shoreham, CLI-86-13, 24 NRC at 31:
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[1]f Shoreham were.to into operation and there were to be a serious accident requiring consideration of protective actions *
-for the public, the State and County officials would be.
obligated to assist, both as a matter of law and as a matter of dischargin'g their public. trust. See N.Y. Exec. Law art. 2-B, 9 25.1. See also H.R. Rep. No. 2T G 99th Cong., 1st Sess.
-(1985), quoted T5 3 art in note 7, supra. Thus, in evaluating the LILCO plan we 3elieve that we can reasonably assume some "best effort" State and County response in the event of an accident.
The Commissic. reiterated this in promulgating its amendments to 10 C.F.R. 5 50.47(c)(1), where it stated (52 Fed. Reg. 42084):
The approach reflected in this rule amplifies and clarifies the guidance provided in the Commission's decision in Long' Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
CLI-86-13, 24 NRC 22 (1986). The rule incorporates the "realism doctrine," set forth in that decision which holds that in an actuel emergency, state and local governmental authorities will l act to protect the public, and that it is appropriate therefore l for tha NRC, in evaluating the adequacy of a utility's emergency plan , take into account the probable response of state and Ic .uthorities, to be determined on a case-by-case basis.
Commission direction in this case, as well as in the recent amendment to 10 C.F.R. 6 50.47(c)(1), establishes that the governments would permit LILC0 to use the EBS to broadcast n.essages to warn the public of a radiological emergency. M Contention 5 dealing with the need for the l
governments' approval of LILC0's use of the errergency broadcast system is resolved and presents no issue (unless some other efficacious scheme is 1
l shown) as it cannot be maintained that the governments in using their i
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-3/ The content of the messages is not at issue. Contention 5 only deals with the ability to broadcast ERS messages and not their content.
Contentions 20 and 57 only dealt with coverage of the EBS system stations and again not with the content of messages. The content of EBS messages was previously litigated. See e.g., LBP-85-12, 21 NRC 644,670,698,756,1000(1985).
"best efforts" to protect the public health and safety will not permit the , -
use of the established emergency broadcast system. O Moreover, even if the governments did not grant permission for the use of the EBS, Revision 10 to the LILC0 plan provides that LILC0's emergency response organizatior, is to directly contact WCBS, the primary emergency broadcast system station in the area, to broadcast the public notificaticn required. LILC0 Plan, pp. 3.8.6, 3.8.7, 0.P.I.P. 3.8.2, pp 4 and 4a. Under 47 C.F.R. 6 73.935(a), the station is authorized to broadcast such messages in "emergency situations posing a threat to the safety of life and property." Examples of emergency situations include widespread fires, discharge of toxic gases, widespread power failures, industrial explosions, and civil disorders. Id. Therefore, it also-appears that the allegations in Contention 5 concerning the question of the governments' "best effort" in connection with the emergency broadcast system, is without foundation as under 47 C.F.R. ! 73.935(a) the EBS can be used without government permission. No "legal authority" issue exists in regard to the EBS.
D. C_ontentions 20 and 57 Contention 20 averred:
LILCC intends that EBS messages will be broadcast simultaneously by VALK AM and FM. (Plan at 3.3-6.) However, WALK AM does not operate at night. Therefore, those persons without FM radios (especially people in cars) will be unable to receive adequate information in the event a radiological accident occurs at night, contrtry to the renuirements of 10 C.F.R. $ 50.47(b)(5).
-4/ It is also noted that the Board has stated its intention to dismiss Contention 5, among others, for failure of the governments to comply with discovery orders. See Board Menorandum and Order (Ruling on Intervenors' Motions to Vacate and Stay Licensing Board's June 17 Order),datedJune 30, 1988.
- LBF-85-12, 21 NRC at 970. '
Contention 57 averred in material part:
Moreover, the tone alert radios depend upon the EBS signal broadcasting from WALK radio station. Should the EBS signal originate from other stations, the radios would not activate and there would not be automatic transmission of the EBS message.
Further, WALK radio does not broadcast on its AM frequency 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> per day. Thus, there is no assurance that tone alert radios will provide adequate notification of an emergency to special facilities and other organizations within the EPZ, in violation of 10 C.F.R.-fl 50.47(a)(1) and 50.47(b)(5), Part 50, Appendix E, 6 IV.D, and NUREG-0654 !S II.E.5, E.6, and Appendix 3.
LBP-85-12, 21 NRC at 1000, l
These contentions as here material only dealt with whether the EBS system can be heard in the emergency area. These contentions were resolved in favor of LILCO, LBP-85-12, 21 NRC at 763-64, 759-60. In CLI-87-5, 25 NRC 884, 890 (1987), after the withdrawal of WALK as the principal EBS station, the Commission reopened the record concerning the EBS station."to admit 'new' contentions only to the extent they assist in focusing further the litigation on earlier admitted isrues..." LILCO j submitted a new EBS with WPLR as the primary station. In a "Memorandum and Order (Board Ruling on Contentions Relatino to LILCO's Emergency Broadcast System)", dated February 24, 1988, at 1-2, the Boar / ruled that l under CLI-87-5, only contentions dealing with "the adequacy of LILCO's new l
arrangement for transmitting EBS rressages and activating tone alert radios to conduct emergency notification were relevant and admissible."
Thereafter LILCO abandoned its proposal for an EBS based on WPLR as the primary station, and submitted Revision 10 to its Plan with WCBS as the primary station.
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In the "Governments', Briefing Paper Concerning LILC0's Emergency ,
Broadcast System," June 20, 1988, ("Briefing Paper") Intervenors do not claim that an EBS system with WCBS as its primary station will not give the coverage required of the EBS. WCBS is a primary station in the State's own EBS. Intervenors' only claim, is that WCBS has not "agreed" to participate. Briefing Paper at 14. Intervenors do not claim that WCBS' lacks sufficient coverage to transmit EBS messages and to activate tone alert radios.1 However, the question of agreements with EBS stations was not within the scope of the earlier admitted issues involving the EBS and may not now be considered, CLI-87-5, 25 NRC at 890. El Moreover, as we have shown, agreements to participate are not necessary here. First, LILCO will contact the governments for pennission to use their access to the emergency broadcast system. Second, under FCC reculations no advance agreement is necessary to broadcast mes:, ages to protect the safety of life and property. 47 C.F.R. 9 73.935(a).
Fo basis appears for a further contention similar to Contention 2( or Contention 57 focusing on the coverage of WCBS, the State's own p 'frrary EBS station.
LILC0 has the E85 procedures required by 10 C.F.R. ! 50.47(b)(5) for p;blic notification and instructions to the public. Similarly, the guidance provided in paragraphs II.E.5 and 6 of NUREG-0654 is met, in that
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~5/ Any attempt to now file new contentions on LILC0's current EBS scheme l would have to be rejected as untimely. The current EBS procedures l were set out in Revision 10 to the LILCO emergency plan which was i
servec in May. Intervenors' were obligated to file any late or amended contentions at that time. See Duke Power Co. (Catawaba Nuclear Station, Units 1 and 2), CLT 33-19, 17 NRC 1041, 1045, 1049-50 (1983).
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LILC0 has shown means and methods by which the EBS will be activated. No .
genuine issue of fact exists es to whether the EBS system with WCBS as the primary station provides the procedures ant' capability to give notice to the public in case of an accident.
Ill. CONCLUSION For the foregoing reasons LILC0's motion for summary judgment on EBS issues should be granted.
-Respectfully submitted,
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g/
rd i. Bachman - - - -
Counsel for NRC Staff Dated at Rockville, Maryland this 12th day of July, 1988.
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,I 00LKElEO V5Nf!C UNITED ST ATES OF AMERIC A NUCLEAR REGUL ATORY COMMISSION .gg g jg pjgg B EFORE T HE A TOMIC S A FETY AN D LICENSING B 0#R0c ce mrt:,A,.y UUGhfiHiii 4 9if VICf.
BRANCH In' the Matter of )
LONG ISL AND LIGHTING COMPANY Docket No. 50-322- 0 L-3 (Shoreham Nuclear Power Station, )
Unit 1) )
V CERTIFIC ATE OF SERVICE 4 '
- i. I hereby certify that copies of "NRC STAFF RESPONSE TO LIL C O'S SECOND M O TIO N FOR
SUMMARY
DISPOSITION ON E8S IS S U E S" in the a bove-captioned proceeding have been served on the followin g by deposit in the U nited States m ail, first class or, as indicated by an a steris k , through deposit in the N uclear Reg ulatory Commission's internal mail system, this 12th day of July 1988.
James P. Gleascn, Chairman
- Jerry R. Kline*
Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Come ion Washington, D C 20555 Washington, D C 20555 Frederick J. Shon** Jonathan D. Feinberg, Esq.
Administrative Judge New York State Department of Atomic Safety and Licensing Public Service Board Three Empire State Plaza U.S. Nuclear Pegulatory Commission Albany, NY 12223 Washington, DC 20555 Joel Blau , Esq. Fabian G. Palomino Esq.*
Director, Utility Intervention Special Counsel to the Governor Suite 1020 Executive Chamber
, 99 Washington Avenue State Capitol l- Albany, N Y 12210 Albany, N Y 12224 I
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2 Philip McIntire F. Taylor Reveley III, Esq.
Federal Emergency Management Donald P. Irwin, Esq.*
Agency Hunton & Williams 26 Federal Plaza 707 East Main Street
- Room 1349 P.O. Box 1535 New York, N Y 10278 Richmond, V A 23212 Stephen .B . Latham , Esq. Herbert H. Brown, Esq.
Twomey, Latham & Shea Lawrence Coe Lanpher, Esq.*
Attorneys at Law Karla J. Letsche, Esq.
33 West Second Street Kirkpatrick & Lockhart Riverhead, N Y 11901 South Lobby - 9th Floor 1800 M Street, NW Atomic Safety and Licensing Washington, D C 20036-5891 Board Panel
- U.S. Nuclear Regulatory Commission Jay Dunkleberger Washington, DC 205E5 New York State Energy Office Agency Building 2
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Atomic Safety and Licensing Empire State Plaza A ppeal Board Panel
- Albany, N Y 12223 l U.S. Nuclear Regulatory Commission l Washington, D C 20555 Spence W. Perry, Esq.
I Hartin Bradley Ashare, Esq. General Counsel Suffolk County Attorney Federal Emergency Management H. Lee Dennison Building Agency Veteran's Memorial Highway 500 C Street, SW Hauppauge, NY 11788 Washington, D C 20472 A nthony F. Earley, Jr. Alfred L. Nardelli, Esq.
New York State Department of Law General Counsel 120 Broadway Long Island Light Company Room 3-118 175 East Old Country Road New York, NY 10271 Hicksville, N Y 11801 L
L Dr. Monroe Schneider Ms. Nora Bredes North Shore Committee Shoreham Opponents Coalition l P.O. Box 231 195 East Main Street I Wading River, N Y 11792 Smithtown, N Y 11787 W1111a m R . C u m min g , Es q . Barbara Newman Office of General Counsel Director, Environmental Health i Federal Emergency Management Agency Coalition for Safe Living 500 C Street, SW Bcx 944 Washington, DC 20472 Huntington, New York 11743
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,. Dr. Robert Hoffman Docketing and Service Section* :
Long Island Coalition for Safe Office of the Secretary Living _ U.S. Nuclear Regulatory Commission P. O. Box 1355 - ' ,
Washington, DC 20555 Massapequa, NY. 11758 Dr. W. Reed Johnson .
115 Falcon Drive, Colthurst Charlottesville, V A 22901 7 _.
Richard G. Bachmann Counsel for N R C Staff .
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