ML20151N481

Lilco Response to Intervenor Response in Opposition to Lilco Second Motion for Summary Disposition of Emergency Broadcast Issue Sys.* Intervenor Requests Should Be Denied.W/Certificate of Svc

ML20151N481
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	07/27/1988
From:	Matchett S HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	Atomic Safety and Licensing Board Panel
References
CON-#388-6835 OL-3, NUDOCS 8808090012
Download: ML20151N481 (11)

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L'LCO, July 27,1988 UNITED STATES OF A51 ERICA 00tKETED NUCLEAR REGULATORY CO51511SSION U%kC

'88 JUL 29 A10:05 B_efore the_ Atomic Safety and Licensine Board

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In the 5f atter of

)

)

LONG ISLAND LIGHTING COSIPANY

) Docket No. 50-322-OL-3

) (Emergency Planning)

(Shoreham Nuclear Power Station.

) (EBS)

Unit 1)

)

LILCO'S RESPONSE TO INTERVENORS'"' RESPONSE'IN OPPOSITION TO LILCO'S SECOND MOTION FOR SUMM ARY DISPOSITION OF THE EBS ISSUE" On July 12,1988 the Intervenors filed a paper styled as their response to LILCO's June 20 Slotion for summary disposition of the EBS issue. "Response of Suffolk County, State of New York, and Town of Southampton in Opposition to LILCO's Second Str.4on for Summary Disposition of the EBS Issue " July 12,1988 (hereinaf ter "Response").

However, Intervenors' paper is not limited to a response: in addition to opposing LILCO's summary disposition motion, Intervenors request affirmative relief, asking the Board to either "graat summary dispcsition for the Governments on the existing EBS contentions or declare the contention moot and, as a matter of law, rule for the Gov-ernments." Response at 21. To the extent that Intervenors' "Response" goes beyond a proper response to LILCO's motion, LILCO responds pursuant to 10 C.F.R. S 2.730.

Intervenors Cannot_be Granled Summary Dispasitio_g A.

t Intervenors' ReJponse states that "the appropriate course for the Board would be for summary disposition to be granted for the Governments." Response at 21. The Board should reject this suggestion outright. Intervenors have not "won" the WPLR issue; it simply has become moot. The issue vras whether the WPLR-based EBS ade-quately covers the 10-mile EP2. The fact that LILCO no longer relles on WPLR cannot possibly justify a ruling that the station's coverage is inadequate. The WPLR coverage 8008090012 800727 PDR ADOCK 05000322 Dh C

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issue cannot be decided on the merits in Intervenors' f avor, when there has been no res-olution of that Lisue at trial or in papers filed by the Intervenors. Storeover Interve-nors' Response cannot serve as the vehicle for summary disposition because it does not conform with the pleading requirements of 10 C.F.R. S 2.749(a). Indeed, instead of at-taching a statement of f acts as to which there is no issue to be heard, Intervonors have attached a series of questions (not "f acts") which purport to show that genuine fact is-sues exist.I' Nor should Intervenors be given special leave to convert their response into an "appropriate" summary disposition motion.U They asked for permission to file a sum-mary disposition motion in their June 20 "Brie /ing Paper" on the EBS issue, and pro-posed a 10-day period as the "appropriate" time within which to file. See Governments' Briefing Paper Concerning Lit.CO's Emergency Broadcast System (June 20,1988) at 2-3, 15.

The Board granted Intervenors' request in its June 21, 1988 Stemorandum and Order. However, Intervenors did not file a summary disposition motion on July 1 as they requested; instead, they waited until the last day of the response period for 1/

As has become their practice, Intervenors have once again attached to a summa-ry disposition response a list of questions that they characterize as "material facts as to which there exists a genuine issue to be heard " This list, like those previously attached to their responses to LILCO summary disposition motions on the EBS, realism, and hos-pital ETE issues, contains quest!ons, not facts. Intervenors thereby avoid the require-ment in S 2.749 to state facts that affirmatively show that a genuine materialissue ex-ists, and instead offer questions that suggest that genuine issues may exist. The Board already has questioned the propriety of such lists, noting that they contain nothing but "questions whose resolutions are of the nature of ultimate findings," suited not to sum-mary disposition responses but to resolution by the Board in its ultimato decisions. Lee 51emorandum and Order (Ruling on LILCO's 51otion for Summary Disposition of the Hos-pital Evacuation Issue), at 9,10 (1*b. 24,1988).

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The Intervenors say they at t "prepared to submit promptly whatever papers this Board feels are necessary" in order to grant summary disposition in their favor, and that they will do so "if the Board so requests." Response at 21 n.10. Aside from the f act that the Board already has permitted intervenors to file a summary disposition mo-tion, and they declined to do so by their proposed deadline, Intervenors need no guld-ance on what papers are "necessary" for summary disposition beyond what is contained in 10 C.F.R. 5 2.749(a).

3 LILCO's mo, tion, July 12, to say they were still willing to do so "If the Board so re-quests." Intervenors have forfeited any right they once had to file an "appropriate" summary disposition motion.

B.

The Board Shou'd Not Rule for the Intervenors Intervenors assert that the only other option available to the Board is to declare the existing EDS contention moot and rule for tDe Intervenors "as a matter of law."

Response at 21. This suggestion is equally oevoid of nierit. Although it may be apprc-priate to dismiss the WPLR contention as moot, there is absolutely no basis to rule for the Intervenors on the EBS matter. To the contrary, LILCO has filed a summary dispo-sition motion on the EBS issue which sets forth f acts sufficient for tne Board to decide the matter in LILCO's f avor. As is discussed in more detail below, intervenors' Re-sponse, though full of rhetorical arm-waving, does nothing to controvert LILCO's mo-tion. Thus, the Board should rule for LILCO, not the Intervenors, as a matter of law.

51any of the arguments contair.ed 1.s Intervenors' lengthy Response fall because they rest on basic misconceptions and non-issues. First among them is the notion that LILCO's EBS plan is deficient because LILCO does not have written agreements with WCBS and various of the secondary stations in the State EBS. Se_e, el Response at 2, 3,15-16. But, as LILCO has poltited out several times, NRC regulations do not require agreements with EDS rt.dio stations. geg LtLCO's Stotion for Summary Disposition of the WALK Radio Issue (Nov. 6,1987) at 7-8. Federal guidance says only that the appli-cant should make available documentation showing the chosen radio station's ability to participate in the EBS. M., elting FESIA REP-10 Guide for the Evaluation of Alert and Notification Systems for Nuclear Power Plants (Nov.1985) at E-2.

No regulatory or guidance provision requires agreements. Thus, the lack of written agreements with WCBS and other stations does not bar the granting of LILCO's motion.

Intervenors argue, second and equally speciously, that, even assuming a best ef-forts response by Suf folk County and New Yorl: State (which the Intervenors apparently

4 continue to deny would be forthcoraing), LILCO's EBS plan is defielent because WCBS and all of the other radio stations are not obilgated to broadcast emergency informa-tion. Response at 41-42. This fact is not dispositive of LILCO's motion because the same 13 true of every other EBS radio station in the country. That is,in the absence of a national-level emergency, no participating EDS station is required by FCC regulations to broadcast emergency information during any state-or local-level emergency. S_eg 47 C.F.R. SS 73.933-937 (1987).

FCC regulations leave it to each station's discretion to decide whether it will broadcast emergency information during such emergencies. [g.

This fact is explicitly recognized in the EDS Procedures for the Nassau and Sulfolk Counties New York EDS Operational Area, which were attached as part of Att. 4 to LILCO's motion and, in an updated form, are part of the Suffolk County Resource Man-ual, which Suffolk County only recently produced to LILCO on July 9 in the realism proceeding. Speelfically, the EBS Procedures state as follows:

Acceptance of/or participation in this plan shall not be deemed as a relinquishment of program control, and shall not be deemed to prohibit a broadcast licensee from exercising independent discretion in any given situation. Stations ort-ginating EBS emergency communications shall be deemed to have conferred rebroadcast authority of the EBS message. The concept vf the management of each broadcast station to ex-ercise discretion regarding the broadcast of EBS emergency information and instructions to the general pub!!c is provided by FCC Rules and Regulations.

EBS Procedures for Nassau and Suffolk Counties New York EBS Operational Area at 2 (undated)(Tne EBS Procedures, as recently produced to LILCO, were made a part of the record in the recent "integrity of the proceeding" hearings as LILCO Disc. Exh. 31 Tr.

21,424).

It must be presumed that WCBS, like other stations, would broadcast emergency information if asked to do so in the event of an actual Shoreham emergency.

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Section 73.933, which directs EBS participants to take specified actions during National level emergencies, is couched in terms such as "will" and "sha!!". 47 C.F.R.

S 73.933. Sections 73.936 and 73.937 speelfy certain steps that participating EBS sta-tions "may" take, "at the discretion of management," during state or operational (local) level emergencies. 47 C.F.R. SS 73.936,73.937.

1 Third, Intervenors argue that LILCO's EBS plan is fatally ambiguous because the role of WPLR and the local Shoreham EBS is unclear. Response at 3, 5,16-19. Th!S ar-gument f alls for two reasons. First, Intervenors' current protestations aside, LILCO's phns regarding the EBS are sufficiently clear for the Intervenors to have accurately summarized them in their Response. Seg Response at 2, Storeover, Intervenors have stated that the additionJ1 discovery granted by the Board on Stay 26 "was sufficient to determine the framework of LILCO's EBS Proposal" and that no more discovery was needed. S_co Governments' Briefing Paper Concerning LILCO's Emergency Broadcast System (June 20,1988) at 9.

Likewise, the Staf f seems to harbor no misunderstand!ng about LILCO's EBS plan. Seg NRC Staff Response to LILCOS Second Storion for Sum-mary Disposition on EBS Issues, July 12,1988.

Store important, however, Intervenors' concerns involve a backup EBS network.

Everyone, including the Intervenors, understands that LILCO relles on the State EBS as its primary EDS broadcaster. Any involvement by WPLR or the local Shorchim EDS would oc in a last-resort, backup role. No NRC regulation requires LILCO to provide such a backup or demonstrate total redundancy in available EBS systems.5 Fourth, Intt.rvenors argue repeatedly that LILCO is somehow trying to thwart review of its EBS plan by seeking summary disposition on a "new and significantly dif-ferent" EBS scheme that involves "an entirely dif ferent network of secondary broadcast stations," in order to "foreclose any meaningful scrutiny" of that system (presumably by the Intervenors). Intervenors claim that LILCO's EBS proposal"is materially different 3/

Intervenors also claim that Lil CO's EBS proposal is ambiguous because it does not specify how broadcast receivers at the secondary stations would be activated. Re-sponse at 18-19. This is simply not true. Admitted Facts nos.18-23 from LILCO's See-und Renewed Station for Summary Disposition of the "Legal Authority"Issues specify in detail how the broadcast receivers at other stations would be activated. Leg LILCO's Second Station for Summary Disposition of the EBS Issue at Att. 5.

In addition, the Nassau/Suffolk County Operational Area EBS Procedures specify how the secondary sta-tions would be alerted. Eeg EBS Procedures for the Nassau and Suffolk Counties New York E9S Operational Area, S V.B.2, at 5.

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In every way from the proposal that has previously been oefore the Board t.nd tae other i

parties to this proceeding." M. at 2. This is nonsense in its purest form. The WCBS-triggered system that LILCO relles upon is the very same system that the State and County themselves curlently rely upon to broadcast emergency information in the i

Nassau-Suffolk Counties Operational Area. Seg LILCO's Second Motion for Summary Disposition of the EBS !ssue (June 20.1988) at 6. Att. 4; LILCO Disc Exh. 31. Tr.

21,424. Moreover, it includes WALK and all of the other radio stations that were in the original Shoreham local EBS, which was litigated and found acceptable earlier in this proceeding. W. at 7. Thus, the State EBS is pm totally new and foreign to tho Interve-nors: to the contrary, it is a system whose capabilities should be well known to them.0/

Finally, Intervenors claim that tha coverage of the State EBS is still an open issue, disputing each of LILCO's five reasons for its position that the coverage issue is l

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resolved. Response at 22-30. None of Intervenors' arguments is persuasive.

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Intervenors argue first that the adequacy of WALK's coverage of the EPZ was not at issue and thus was not resolved in the original Plan hearings, even though the Board found the WALK-triggered EBS system adequate. Response at 24. This argument seemingly contradicts Intervenorf earlier efforts to include the coverage issue within j

the "earlier-admitted ist,ues" to which the Commission limited its EBS reopening

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1 order.E# n any case, it is legally irrelevant whether the coverage issue was in fact I

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Intervenors use the same sort of feigned ignorance about the WCBS-triCrered l

State T.BS to support their failure to controvert several of the basic facts listed in LILOJs Statement of Material Facts. Sgg Response at 34-35, 38-40. The State and Coraty do not need further discovery to confirm or deny basic information about the i

EEJ system that they rely on themselves.

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When the Commission reopened the EBS issue it instructed the Licensing Board to admit only those "new" contentions "to the extent they assist in focusing further the i

I intigation on earlie admitted issues.a Long Island _ Lighting Co. (Shoreham Nuclear i

Power Station, Unit 4), CL187-05, 25 NRC 884, 890 (1987). The only "earlier-admitted issues" were whether WALK (AM) could broadcast at night (Contention 20) and whether i

WALK (AM) could activate the tone alert radios at night (Contention 57). Long island I

(footnote continued)

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litigated in that hearing; the important thing is that it could have been litigated at that time if Intervenors so wished, so res judicata attaches and precludes them from j

!!tigating it now.E I

intervenors argue next that the Board's admission of Material Fact no.17 from i

LILCO's realism summary disposition motion has no etfeet here, because (1) it was in the context of realism. not EBS, and (2) Intervenors had good reason not to address or f

l controvert that f act at the time. Response at 25-27. These arguments re irrelevant.

It doesn't matter wtly the Intervenors chose not to address Fact no.17t all that matters is that they failed to controvert it and the Board, pursuant to 10 C.F.R. S 2.749(a),

I deemed it admitted. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit l

!), LBP-87-26,26 NRC 201 at 225 (1987). Thus, it is an established fact in this proceed-

!ng that, as Fact no.17 recites, "The CPCS-t (for the State EBS) has a fif ty kw AM station that covers the entire Shoreham 10-mile EPZ."II i

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(footnote contir.ued) j q

j Ligt11lpg QQ. (Shoreham Nuclear Power Station, Unit 1), t.BP-85-12, 21 NRC 644, 760 T63 64 (1985). In challenging LILCO's new WPLR-cased EBS, Intervenors' task was to quee.tlon the coverage of the new system while temaining within the bounds cf the

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"earlier-admitted lesues" limitation; they succeeded in doing so by arguing that the l

WPLR-based plan 'caised new issues that "could not possibly have been raised previ-l ously," such as "the scope of coven'e provided by a system comprised of different.

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I Connecticut-based radio stations." Hesponse of Suttolk County, State of New York, and 1

Town of Southampton in Opposition to LILCO's motion for Sumraary Disposition of the

[

WALK Radio issue (NN. 30,1957) at 19-20. Here, Intervenors argue that the WALK system's coverage was t.ot litigated previously and is still an open issue, despite their t

apparent concession that the coverage of the statior';in that system could have been L

j raised prev!aly.

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Interwtwrs assert that even if WALK's adequacy had been litigated pttvlously.

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I that would nv he disposiltive of current issues. Response at 24-25. They then go on to i

3 discuss issues that are irrelevant to coverage, which is the nly matter at issue here, i

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Intervenors'se:m'.4 tic argument that "covers"in fact no.17 does not mean "ade-

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quately covers" deservh but trief retort. The inescapable import of LILCO's statement j

that WCBS "covers" the EP213 that is provides sufficient coverage to that area. LILCO i

i would have had no reason to include it if it were construed any other way.

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4.

Integvenors' remaining arguments questioning the coverage of the State EBS are similarly unpersuasive. For example, their argument that the Cohen and D!ppell report and affidavit admit the inadequacy of WCBS' coverage is unfounded. See Response at 6,

28. Intervenors do not assert that a signal c' 2m//m is required throughout the EPZ, or that WCBS' minimum signal to that area (.58 mV) is inadequate to be heard across the entire 10-mile EPZ. They merely repeat Cohen and Dippell's statement that FCC regu-lations normally require a signal level of 2 mV/m for cor.tinuous service to communities of 2500 or more persons, and imply that LILCO must show this level of service to the entire 10-mile EPZ. This is insuffielent information to dispute the adequacy of WCBS' established coverage. The f atal flaw in Intervenors' argument, moreover, is that it ig-nores the fact that the Cohen and Dippell documents only address WCBS, and not the entire 30 plus station State EBS whose coverage has been previously estab!!shed.

Finally, the Board should rejeci Intervenors' argument which attempts to avoid the effect of their refusal to allow depositions of State and County personnel en EBS matters. Leg Response at 29-30. The Board's May 26 bench order directed that "the partles" cona.et further discovery on Rev.10: it did not limit such discovery to LILCO witnesses, it was only af ter three weeks of Intervenors' refusals to make their witness-es available that LILCO decided (on June 17) that it no longer would seek to depose them. Intervenors' position that th tv would not be produced did not change. This does not excuse intervenors for f alling to produce their witnesses, and does not lif t the pre-sumption that the depositions sought by LILCO would have produced testimony adverse to Intervenors' position on EBS matters.

C.

The Board Should Not Permit intervenors to File New Contentions And/Or Pursue Additional Discoverv Intervenors argue throughout their Response that tney have not had a chance to conduct "meaningful scrutiny" of LILCO's EBS plan and that, at a minimum, they should be given the opportunity to file new contentions and pursue additional discovery. Ege,

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et, response at 5, 6, 14-16, 42. These pleas ignore the f act that Intervenors already were allowed - and in f act conducted -- more discovery concerning LILCO's reliance on the State EBS. Intervenors stated that "the Governments believe that this limited discovery was sufficient to determine the framework of LILCO's EDS proposal, and that nothing more is needed." Governments' Briefing Paper Concerning LILCO's Emergency Broadcast System (June 20,1983) at 9.

Intervenors' current requests for more process are nothing but thinly-disguised elforts to delay this proceeding even further.

In addition,Intervenors do not attempt to explain why they f ailed to file any new contentions promptly af ter LILCO issued itev.10 of the Plan in Stay. Over two months have clapsed since LILCO made clear its reliance on WCBS and the State EBS. The Board would be justified in rejecting as untimely any attempt ncw to submit new con-tentions or pursue additional discovery.

ConclustoD For the reasons set forth, the Board should deny Intervenors' request to grant summary disposition to the Intervenors or otherwise rule in their favor on the EBS issue. Storeover, the Board should deny Intervenors' request for a further opportunity to submit new contentions and pursue additional d'.scovery.

Respectf ully submitted.

.V 0SCh$ '

Donald P. Irwlf K. Dennis Sisk Scott D. Statchett Counsel for Long Island Lighting Company llunton & Williams 707 East Siain Street P.O. Box 1535 Richmond, Virginia 23212 DATED: July 27,1988

LILCO, July 27.1988

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'88 4. 29 A10:05 CERTIFICATE OF SERVICE CFs.v..

C004 4..,.

Butu In the Matter of I

LONG ISLAND LIGHTING COMPANY i

(Shoreham Nuclear Power Station, Unit 1) l Docket No. 50-322-OL-3 I hereby certify that copies of a letter from Scott D. Matchett, Esq. to James P.

Gleason, Chairman, et al., and LILCO's Response to Intervenors'"' Response' In Oppost-i tion to LILCO's Second Motion for Summary Disposition of the EBS !ssue" were served this date upon the following by Federal Express as indicated by one asterisk, or by first-class mail, postage prepaid.

James P. Gleason, Chairman

• Atomic Safety and Licensing Atomic Safety and Licensing Board Board Panel

)

513 Gilmoure Drive U.S. Nuclear Regulatory Commission Silver Spring, Maryland 20501 Washington, D.C. 20555 Dr. Jerry R. Kline

• George E. Johnson, Esq.

• j Atomic Safety and Licensing Richard G. Bachtuann, Esq.

.1 Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission One White Flint North East-West Towers, Rm. 427 11555 Rockville Pike l

3 4550 East-West Hwy.

Rockville, MD 20852 l

Bethesda, MD 20814 Herbert H. Brown, Esq.

• Mr. Frederick J. Shon

• Lawrence Coe Lanpher, Esq.

Atomic Safety and Licensing Karla J. Letsche, Esq.

L Board Kirkpatrick & Lockhart r

U.S. Nuclear Regulatory Commission South Lobby - 9th Floor East-West Towers. Rm. 430 1800 M Street, N.W.

4350 East-West Hwy.

Washington, D.C. 20036-5891 Bethesda, MD 20814 Fabian G. Palomino Esq.

• Secretary of the Commission Richard J. Zahnleuter Esq.

i Attention Docketing and Servlee Special Counsel to the Governor Section Executive Chamber

[

U.S. Nuclear Regulatory Commission Room 229 1717 H Street, N.W.

State Capitol Washington, D.C. 20555 Albany, New York 12224 f

Atomic Safety and Licensing Alfred L. Nardelli, Esq.

Appeal Board Pane!

Assistant Attorney General l

U.S. Nuclear Regulatory Commission 120 Broadway l

l Washington, D.C. 20555 Room 3-118 L

New York, New York 10271 t

2-George W. Watson, Esq.

• Ms. Nora Bredes William R. Cumming Esq.

Executive Coordinator Federal Emergency Management Shortham Opponents' Coalition Agency 195 East Main Street 500 C Street, S.W., Room 840 Smithtown, New York 11787 Washington, D.C. 20472 Gerald C. Crotty 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 l

Agency Wading River, NY 11792 26 Federal Plaza New York, New York 10278 Jonathan D. Feinbc.g, Esq.

New York State Department of Public Servlee. Staff Counsel Three Rockofeller Plaza Albany, New York 12223

&&'~

5 ott D. Matchett i

l Hunton & Williams 707 East Main Street i

P.O. Box 1535 l

Richmond, Virginia 23212 MTED: July 27,1988 i

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