ML20151N548
| ML20151N548 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 07/28/1988 |
| From: | Ingebretson C HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML20151N550 | List: |
| References | |
| CON-#388-6828 OL-2, NUDOCS 8808090033 | |
| Download: ML20151N548 (17) | |
Text
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's LILCO, July 28,1988 00t q iL D
')
UNITED STATES OF AMERICA U:%C NUCLEAR REGULATORY COMMISSION
'88 Jul. 29 Pl2:12 Before the Commission orr ;r...
- ,c e
OOCKEi vi A mn E9 /Km in the Matter of
)
)
LONG ISLAND LIGIITING COMPANY
) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station.
)
Unit 1)
)
LILCO'S RENEWED OPPOSITION TO INTERVENORS' PROPOSED CONTENTION ON EMERGENCY MEDICAL SERVICES FOR CONTAMIN ATED INJURED INDIVIDUALS AND SUGGESTION OF MOOTNESS
- 1. INTRODUCTION On February 25, 1987, Suffolk County, the State of New York and the Town of Southampton (Intervenors) filed a motion asking the Commission to admit a multi part contention alleging that LILCO did not comply with FEMA Guidance Memorandum MS-1, Medical Services ("MS-1"), conecrning the provision of medical services for "cor.-
taminated in'.ureddl members of the general public.M LILCO and the NRC Staf. time-ly responded to Intervenors' motion, urging rejection of their proposed contention.3/
Intervenors' motion has never been acted on by the Commission.
1/
FEMA Guidance Memorandum MS-1, published on November 13,1986, defines the term "contaminated injured" to include individuals who are "(1) contaminated and oth-erwise physically injured; (2) contaminated and exposed to dangerous levels of radia-tion; or (3) expo:ed to dangerous levels of radiation." MS-1 at 1. A copy of MS-1 is at-2 l
tached as Attachment A.
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2/
Moiion of Suffolk County, the State of New York and the Town of Southampton j
to Admit New Contention (Feb. 25, 1987).
3/
See LILCO's Opposition to Intervenors' Motion to Adm'.t a New Contention (March 9,1987); NRC Staff Response in Opposition to Motion to Admit a New Conten-tion (March 17, 1987).
I 8808090033 880728 gDR ADOCK O 2
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In the seventeen months since Intervenors filed their proposed contention, sis-1 has become effective and LILCO has complied with it. Accordingly LILCO moves to dismiss Intervenors' motion as moot or, in the alternative, as falling to meet the re-quirements for reopening a closed record. SE 10 C.F.R. S 2.734.
As described below and in the attached Affidavit of Diane P. Dreikorn, the LILCO Offsite Radiological Response Plan ("LILCO Plan") fully complies with the guld-ance of SlS-1. FESIA has judged every major aspect of LILCO's compliance to be ade-quate. Final Regional Assistance Committee (RAC) Re"lew of Revision 9 of LILCO Plan (Aprl! 28,1988) (hereinaf ter "RAC Review").3/ In addition, various aspects of LILCO's Plan on which LILCO currently relles to comply with hts-1 have been reviewed and approved by the Licensing Board, gee Long Island Lighting Co. (Shoreham Nuc! car Power Station, Unit 1), LBP-85-12,21 NRC 644 (1985)(hereinaf ter "PID"). Intervenors' proposed contention has been overtaken by events and is clearly moot.
Independently, Intervenors' motion must be dismissed because it does not meet the "heavy burden" faced by the proponent of a motion to reopen a closed evidentiary i
record. Intervenors submitted their proposed contention two and a half years af ter the record had closed on the issue of medical services for contaminated injured individu-als,EI but they made no effort to satisfy the requirements for reopening it. They should 4/
Copies of pages of the RAC Review cited herein are attached as Attachment B.
5/
On July 26, 1983 Intervenors submitted numerous contentions on the LILCO Plan, including one claiming that LILCO had fa!!ed to comply with 10 C.F.R.
S 50.47(b)(12). Intervenors' Revised Emergency Planning Contentions at 114 (Conten-tion No. 54)(July 26,1983). The Licensing Board denied admission of the proffered con-tention, Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), Docket No.
50-322-OL-3, slip op. at 20 (Aug.19,1983), and closed the evidentiary record on August 29, 1984, Long Island Lig,hting Co. (Shoreham Nuclear Power Station, Unit 1),
LBP-85-12,21 NRC 644,651 (1985).
The Licensing Board issued its decision on the LILCO Plan in two Partial Initial Decisions. M. and LBP-85-31, 22 NRC 410 (1985). Intervenors appealed numerous por-(footnote continued)
not now be permitted to ignore the Commission's rules to gain admission of their moot contention. Neither should they be allowed to reform their argument to have yet an-other bite at the apple. As the Commission noted in a recent decision in this docket.
"(mlotions to reopen cannot be permitted to be a means for parties to pass off old, unsuccessful contentions as new and rehtigate them in hopes of a better result the next time around.... At some point the adjudicatory pri., cess must come to an end." Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-88-03, slip op, at 4 (July 15,1988).
I. BACKGROUND The Commission's offsite emergency planning regulations require that 'arrang-ments (sic) are made for medical services for contaminated injured individuals." 10 C.F.R. S 50.47(b)(12). The Commission had found that S 50.47(b)(12) could be satisfled by a list of medical f acilities available in the area of the plant. See Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), CL1-83-10,17 NRC 528, 534-36 (1983). Ilowever, on February 12, 1985, the U.S. Court of Appeals for tl.e District of Columbia Circuit held that the measures mandated by 5 50.47(b)(12) must (footnote continued) tions of these decisions, including the Licensing Board's order denying admLssion of a proposed contention on 5 50.47(b)(12). S_ce Suffolk County, State of New York, and Town of Southampton Brief on Appeal of Licensing August 26,1985 Concludng Partial Initial Decision on Emergency Planning at 65-68 (Nov. 6,1985). The Appeal Board re-jected Intervenors' appeal and af firmed the Licensing Board's denial of the "medical services" contention. See Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-832,23 NRC 135,143 (198o).
Intervenors sought review of the Appeal Board's decision, arguing that unless the Commission granted review, the Appeal Board's decision would become final agency ac-tion. Sce Suffolk County, State of New York, and Town of Southampton Petition for Review of ALAB-832 at 4 and Att.1, p. 5 (Apr.15,1986). However, the Commission granted review on only three discrete issues in ALAB-832, none of them related to S 50.47(b)(12). Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
Docket No. 50-322-OL-3, slip op. (Sept. 19, 1986).
I
t include pre-accident arrangements for medical services in addition to a list of existing treatment f acilities. GU ARD v. U.S. Nuclear Regulatory Commission, 753 F.2d 1144, l
1145-46 (D.C. Cir.1985). The Appeals Court romanded the case to the Commission for further consideration. Ld. at 1150, in response, on September 17, 1986, the Commission issued a Statement of Policy i
on Emergency Planning Standard 10 C.F.R. S 50.47(b)(12). There it indicated that satis-factory arrangements for the provision of medical services for contaminated injured l
members of the public should include, in addition to a list of local or regional medical treatment factittles, the following:
i (1) a good f aith reasonable effort by licensees or local or state govern-i ments to faci!! tate or obtain written agreements with the listed medical facilities arx1 transportation providers; i
(2) provision for making available necessary training for emergency
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l respome personnel to identify, transport, and provide emergency i
l first aid to severely exposed individuals; and (3) a good faith reasonable etfort by licensees or state or local govern-ments to see that appropriate drills and exercises are conducted which include simulated severely-exposed Individuals.
51 Fed. Reg. 32,904, 32,905 (Sept.17,1986). The Commission further indicated that it l
had directed the NRC Staff to develop, in connection with FEM A, specific guidance on l
f the application of planning standard S 50.47(b)(12) to NRC commercial operating licens-
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ecs and license applicants. Ld.
The required guidance was provided in FEM A Guidance Memorandum MS-1, Med-
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leal Services, issued by FEMA and forwarded to NRC lleensees by IE Notice 86 98 (December 2,1986). MS-1 iterated the guidelines for the provision of medical services for contaminated injured individuals described in the Commission's Statement of Policy and estabushed specific evaluation criteria for FEMA to review. Plants without full i
power lleenses were to comply within nine months of its effective date, la, by August 13,1987. MS-1 at 5.
i
On February 25,1987, more than six months before LILCO was obligated to com-ply with FEMA Guidance Memorandum MS-1,intervenors tr.oved to admit the presently pendirig contention, alleging that LILCO's Plan failed to comply with the specific guld-ance of MS-1.5 LILCO opposed the motion on the grounds that it was premature, that it failed to meet the standards for reopening a closed evidentiary record, aad that it fa!!ed to meet the standards for late-filed contentions. LILCO's Opposition to Interve-nors' Motion to Admit a New Contention (March 9,1987). The NRC Staff also opposed Intervonors' motion on the ground that the contention failed to meet the standards for late-filed contentions. NRC Staff Response in Opposition to Motion to Admit a New Contention (March 17, 1987). The Commission has not acted on Intervenors' motion.
II. INTERVENORS' MOTION IS MOOT BECAUSE LILCO HAS COMPLIED WITil ALL GUIDANCE OF MS-1 Intervenors' motion to admit a new contention should be dismissed as moot.
Whether Intervenors' claims were ever accurate, they are no longer true in light of LILCO's actions to cor. ply with MS-1.
Intervenors' motion has been overtaken by events and is now moot.
6/
This was Intervenors'second attempt to litigate these issues. On February 25, 1985, shortly af ter the Court of Appeals decision in GUARD v. NRC, supra, but lefore the issuance of any regulatory guidance, they had sought admission of a new Gr. ention concerning the adequacy of LILCO's arrar.gements for medical services. Sce Motion of
_ 25, 1985).
Suffolk County and New York State to Admit New Contention (February LILCO cpposed the motion as premature. See LILCO's Answer to "Motion of Suffolk County and New York State to Admit New Contention"(including a Request that the issue be Certified to the Commission and that the New Issues be Severed from the Rest)
(March 11,1985). The NRC Staff responded by requesting the Licensing Board to defer any rulln2 on Intervenors' motion until such time as the Commission had issued guidance or taken other action in light of the GU ARD decision. See NRC Staf f Response to "Mo-tion of Suffolk County and New York State to Admit New Contention"(March 12, 1985).
On August 21, 1985, the Licensing Board denied the Intervenors' motion, holding that !!tigation on the question of what constitutes adequate arrangements for medical services for contaminated injured individuals, if necessary at all, should be deferred until the Commission had issued a rule or other generic guidance on the matter. Memo-randum and Order Denying Suffolk County's and State of New York's Motion to Admit New Contention at 7 (August 21,1985).
(___
FEMA Guidance Memorandum MS-1 imposes essentially four obligations on orga-nizations responsible for offsite emergency planning.2I First, organizations responsible for emergency planning should obtain written agreements with a primary and a backup medical facility and with transportation providers assuring that they have adequate technical information and capabilities to handle and treat contaminated injured individ-uals. MS-1 at 2. Second, the organizations responsible for emergency response should develop a list of public, private and military hospitals and other emergency medical service facilities within the area of the plant which are capable of providing medical support for contaminated injured individuals. MS-1 at 3. Third, the responsible organi-zations should provide training for medical services and transportation personnel for tne handling and treatment of contaminated injured members of the public. MS-1 at 4.
Finally, the responsible organizatiens should arrange annual medical emergency drills involving both the primary and backup medical f acilities. MS-1 at 5.
Intervenors' proposed contention is a mere recitation of the guidance contained in MS-1. Following a general preamble in which the Intervenors' allege that LILCO has failed to comply with the guidance of MS-! and therefore cannot be found to comply with 10 C.F.R. S 50.47(bX12) oc NUREG CM4,5 II.L. the contention makes the follow-ing specif to allegations:
A.
LILCO does not have written agreements with the re-quired medical facilities and transportation providers containing assurances that those medical f acilities and transportation providers have adequate technical information and treatment capabilities for handling contaminated injured individuals in the event of a ra-diological emergency at Snorcham....
I/
In the instance of state and local government refusal to participate in emer;:en-cy planning, the licensee or license applicant in the orgatilzation responsible for offsite emergency planning.
See Criteria foe P: paration and Evaluation of Radiological Emergency Response Plans and Preparur.as in Support of Nudear Power Plants, NUT JG-0654/ FEMA-REP-1, Rev.1 Supp.1 at I.D.
7 B.
While the LILCO Plan contains a bare listing of pub-lic, private and military hospitals which LILCO con-tends are capable of treating contaminated injured persons. OPIP 4.2.2, att.1, the list does not include any description of the special radiological capabilities of each f acility....
C, The LILCO Plan does not provide adequate arrange-ments for the transportation of members of the pub-lic who are victims of radiological accidents to medi-cal support f acilities, with provisions for the use of contamination control in transporting contaminated personnel to medical f acilities....
D.
LILCO has not trained or established a training pro-gram for the medical services and transportation per-sonnel who will assist in an emergency, including (1) the one physician and one nurse who must be ora call within 2 hours2.314815e-5 days <br />5.555556e-4 hours <br />3.306878e-6 weeks <br />7.61e-7 months <br /> and who can supervise the evaluation and treatment of radiological contaminated memLers of the public; (2) the transportation providers who must be trained in contamination control; and (3) the other personnel reference in subparts C and D above....
E.
The LILCO Plan fails to provide for adequate exer-cises and drills involving the hospitals on which i
LILCO intends to rely, as referenced in subpart A, l
above.
See Intervenors' Proposed Contention appended to Intervenors' 51ction of Feb. 25,1987.
As demo 1strat=d below, LILCO has fully complied with the guidan% of 51S-1.
Intervenors' proposed contention therefore is moot and should be dL< missed.
A. Written Agrec_ments FEStA Guidance 51emorandum $1S-1 provides thr. the organization responsible for offsite emargency planning should make pre-ac'aident arrangements for both a pri-mary and a backup hospital which are capable of evaluating radiation exposure and uptake and that 14 ave personnel adequately prepared to treat contaminated individuals.
51S-1 at 2. 51S-1 further provides that the responsible organization should obtain writ-ten agreements with these qualifying medical facilities. Id. These written agreements should contain:
i
, 6 simply assurances that the providers have adequate techni-cal information (e.g. treatment protocols) and treatment ca-pabilities for handling "contaminated injured" individuals.
Id. Assurance is demonstrated by evidence that a hospital is accredited by the Joint Commission on Accreditation of liospitals (JCAM). Id.
LILCO has complied with this guidance. LILCO has obtained letters of agree-mont with two local hospitals which are napable of receiving and treating contami-nated injured members of the general public. By agreement signed on October 29,1987 Brunswick General llospital will serve as LILCO's primary $1S-1 hospital. Brunswick General liospital is a JC All-accredited hospital located in Amityville, New York. See Affidavit of Diane P. Dreikorn,13. A copy of the letter of agreement with Brunswick liospital is Attamment C This agreement has been judged by FESTA to be adequate.
RAC Review at 77 (Attachment B).
LILCO also has a written agreement with Slid-Island }{ospital located in Bethpage, New York, under which Slid-Island !!ospital agrees to serve as a backup f acil-ity for the treatment of contaminated injured individuals. The agreement with 511d-Island liospital, also a JCAll-accredited hospital, was signed on Starch 8,1988. See Af-fidavit of Diane P. Dreikorn,14. Although this agreement was executed too late to have been included in FE51 A's RAC Review of Revision 9 of fle LILCO plan,it is essen-tially identical to the agreement with Brunswick General liospital wich the RAC found to be adequate. A copy of the agreement with Slid-Island llospital ts Attachment D.
In addition, LILCO's Offsite Plan Implementing Procedures (OPIPs) provide that if additional medical f acilities are needed, contaminated injured individuals can be sent to the federal Veterans Administration }{ospital in Northport, New York, and the Nassau County hiedical Center in East Steadow, New York. See OPIP 4.2.2, 5 5.3.1, at-tached as Attachment 11. These facilities would be available under the Commission's I
O
, i I
i "realism" rule,10 C.F.R. S 50.47(c)(1). 52 Fed. Reg. 42,078, 42,086 col.1 (Nov. 3,1987).
l FEMA has reviewed this aspect of LILCO's Plan and judged it to be adequate. RAC Re-view at 77 (Attachment B).
j LILCO also maintains written agreements with eleven commercial ambulance l
companies which are capable of transporting contaminated injured members of the l
general public. A copy of one of these essentially identical agreements is Attachment lI E (proprietary information has been redacted). Each agreement requires that:
)
The Contractor's drivers shall be duly licensed and shall have received Emergency Preparedness Training prior to vehicle i
j operation.
l Sg Attachment E at 2. As described infra pp.11-13, LILCO provides ambulance per-sonnel with training on all aspects of radiological emergency response, including the J
handling of contaminated injured individuals. Thus, these written agreements provide t
l the required "simple assurance" that transportation contracto:s have the necessary in-r formation and capabilities to handle and treat contaminated injured individuals.Il See f
MS-1 at 2.
l The LILCO Plan also relles on the resources of local government to respond to f
the needs of contaminated injured members of the general public in the event of an ac-i lj tual emergency. In the absence of written agreements with local governments which j
refuse to participate in emergency planning for the Shoreham plant, the LILCO Plan f
j contains the following statement:
i i
i 1/
A list of the commercial ambulance companies under contract to LILCO is main-i J
tained in OPIP 3.6.5 Attachment 6, attached as Attachment F.
In its decision on l
LILCO's Plan the Licensing Board found that LILCO has adequate ambulances and
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ambulettes under contract to conduct an evacuation of special f acilities and the handi-l capped at home within the EPZ See LBP-85-12, 21 NRC 644. 830 (1985). The Board I
also noted that LILCO's estimates of the average capacity of ambulances and ambulettes are both "reasonable and conservative." M. The Licensing Board further concluded that separate agreements with ambulance personnel are not required under
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the NRC's regulations. Id. at 831-32. Thus, to the extent that these issues are raised by j
Intervenors' pending contention, they are _res_ judicata.
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l m
1 All local law enforcement agencies, fire departments and snow removal agencies within the 10-mile EPZ will continue to carry out their r.ormal response functions during an emer-gency.
LILCO Plan at 2.2-7, attached as Attachment G. This relianco is based on the Commis-sion's realism rule. FEMA has reviewed this arrangement and judged it to be adequate.
RAC Review at 12 (Attachment B).
j Specifically, OPIP 4.2.2 5 5.4 (Attachment H) provides that Local Emergency Re-l sponse Organization (LERO) personnel may contact the local police or a fire and rescue company to arrange for the transportation of a contaminated injured individual to a qualified medical facility. A list of police and fire and rescue companies is contained in OPIP 3.1.1 Attachment 11. A copy of OPIP 3.1.1 Attachment 11 is Attachment !.
FEMA has reviewed the list in OPIP 3.1.1 Attachment 11 and judged it to be adequate.
RAC Review at 78 (Attachment B).
For all of these reasons, LILCO has complied with the guidance of MS-1 concern-ing written agreements with medical services and transportation providers for contam-inated injured individuals.
B.
Qualifying Public. Private and Military Hospitals FEMA Guidance Memorandum MS-1 also specifies that each state should develop lists indicating the location of public, private and military hospitals and other emergen-cy medical f acilities within the state or within contiguous states which are considered to be capable of providing medical support for any contaminated injured individual.
MS-1 at 3. This listing should include the name, location, type of f acility and capacity and any special radiological capabilities. These emergency medical services should be able to radiologically monitor contaminated personnel, and have facilities and trained personnel able to care for contaminated injured individuals. Id.
r I.
LILCO has complied with this guidance. LILCO maintains such a list of hospitals and medical f acilities in Suffolk County, Nassau County, Queens County, and Kiiigs (Brooklyn) County in New York which are capable of receiving contaminated injured in-dividuals. Each of the listed f acilities is JCAH-accredited; thus, each !acility is capable of receiving and treating contaminated injured individuals. See 51S-1 at 2. The list also contains the name, location, telephone number and capacity of each hospital or medical f acility. The list is maintained in LILCO's Plan as OPIP 4.2.2, Attachment 1, and is up-l dated periodically. See Affidavit of Diane P. Dreikorn,15. Revision 9 of the list wat reviewed by FEStA and judged to be adcquate. RAC Review at 78 (Attachment B). R e-l l
vision 10 of Attachment 1 contains only minor changes from the previous version. Re-l vision 10 of OPIP 4.2.2, includirig Attachment 1, is Attachment H.
l In sum, LILCO has complied with the guidance of 51S-1 concerning the develop-ment of a list of other regional hospitals capable of treating contamined injured moln-l bers of the general public.
l C.
Training FEMA Guidance Stemorandum 51S-1 specifies that the organization responsible for emergency response shall establish a training program for instructing and qualifying medical support personnel who will implement radiological emergency response plans.
51S-1 at 4.
Specifically, the responsible organization must assure that each qualifying hospital has at least one physician and one nurse on call within two hours who can su-pervise the evaluation and treatment of radiologically contaminated injured members of the general public. Ld. Trardportation providers should also have a basic training in contamination control. Ld.
LILCO has complied with this guidance. LILCO has contracted with Radiation 51anagement Consultants ("RSIC") of Philadelphia, Pennsylvania, to train hospital medi-cat and maintenance personnel. A copy of the agreement with F SIC is attached as
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i j
Attachment J (confidential information has been redacted). Under the terms of this agreement, training of hospital personnel has occurred and w'.1 occur periodically to assure that Brunswick General Hospital and Mid-!sland Hosptal have the necessary trained staff available to treat radiologically contaminated injured individuals. See Af-fidavit of Diane P. Dreikorn,116-13.
A separate training program for the eleven commercial amthance aompaniet under contract to LILCO provides training in various aspects of emergency response, f
s including the handling and treatment of contaminated injured members of the general 1
i
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public. See Affidavit of Diane P. Dreikorn,1114,16-18. A copy of the lesson plan for LILCO's contractor ambulance personnel training is Attachment K.
FEM A has re-j viewed thece arrangements for the training of emergency medical support personnel and transportation providers under contract to LILCO and has judged them to be ade-4 l
quate. RAC Review at 87 (Attachment B).
As specified by recent joint NRC/ FEMA guidance, LILCO makes its training for commercial ambulance personnel available to non participating State and local govern-ment officials. M Criteria for Preparation and Evaluation of Radiological Emergency Rwponso Plans and Preparedness in Support of Nucletr Power Plants NUREG-0654/ FEM A-REP 1, Rev.1. Supp.1 at 0,6.EI The LILCO Plan provides as follows:
LERO will offer the same exact LERO training to their State and County counterparts and shall attempt to involve Suffolk County and New Ynrk State of ficials in the exercises and drills, but their participation is not required.
LILCO Plan at 5.1-3 (Revision 10), attached as Attachment L. On Jrauary 25 and 26, 1988, LILCO wrote to representatives of both Sutfolk County and Nassau County, re-spectively, to invite the participation of County law enforcement and rescue personnel 2/
NUREG-0654 Supp.1, suora n.7, at Planning Element 0.6 provides that "[t]he offsite response organization shall offer training to non-participating State and local governments and other organizations."
)
.mergency response training, drills and exercises. See letters from fra I.. Freilicher, iLCO Vice President, to Robert Mcdonald, Deputy Nassau County Executive (Jar.uary 25, 1988), and to Robert Kurtter, Deputy Suffolk County Executive (January 26, 1988), attached as Attachment 51.N See Affidavit of Diano P. Dreikorn, 11 19-22. LILCO need not do more.
For the abova reasons, LILCO has complied with the guidance in MS-1 concern-ing the training of medical services and transportation personnel for the handling and treatment of contaminated injured individuals.
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D.
Drills and Exercism Finally, FEMA Guidance Memorandum MS-1 specifies that annual medical emer-gency drills should be conducted at which a simulated contaminated injured individual is transported by ambulance to a qualified medical treatment facility. MS-1 at 5.
These drills should uso test the ability of relocation centers to direct contaminated injured members of the general public to an appropriate treatment facility. Id. These annual drills may be conducted as part of the required bienrdal exercise of emergency response E
capabilities. Id.
n 10/
Although local police and public rescue personnel have not participated in LILCO's training for handling radiologically contaminated individuals, evidence exists that Suffolk County public rescue personnel receive appropriate training.
In the Suffolk County Emergency Operations Plan produced to LILCO on July 8,1988, the "mission" of the County Rescue Service is described in the following terms:
The mission of the Rescue Service in an emergency is to di-rect and coordinate action to locate and save lost persons and persons trapped or injured in damaged buildings, shel-ters, vehicles and other enclosures an[d} in radiologicalLv contaminated areas, and to aid and assist in the recovery of critical supplies, materials and equipment from affected areas.
Sutfolk County Emergency Operations Plan, Annex L. Appendix 2 at 1 (emphasis added),
attached as Attachment N. Fulfillment of this mission would logically require training for the handling and transportation of contaminated injured memoers of the general
- public,
in emergency response training, drills and exercises. See letters from fra L. Freilicher, LILCO Vice President, to Robert Mcdonald, Deputy Nassau County Executive (January 25, 1988), and to Robert Kurtter, Deputy Suffolk County Executive (January 26, 1988), attached as Attachment M.N See Affidavit of Diano P. Dreikorn, 11 19-22. LILCO need not do more.
For the above reasons, LILCO has complied with the guidance in MS-1 concern-ing the training of medical services and transportation personnel for the handling and treatment of contaminated injured individuals.
D.
Drills and Exercistg Finally, FEMA Guidance Memorandum MS-1 specifies that annual medical emer-gency drills should be conducted at which a simulated contaminated injured individual is transported by ambulance to a qualified medical treatment f acility. MS-1 at 5. These drills should also test the ability of relocation centers to direct contaminated injured members of the general public to an appropriate treatment facility. Ld. These annual drills may be conducted as part of the required biennial execise o' emergency response capabilities. Id.
10/
Although local police and public rescue personnel have not participated in LILCO's training for handling radiologically contaminated individuals, evidence exists that Suffolk County public rescue personnel receive appropriate training.
In the Suffolk County Emergency Operations Plan produced to LILCO on July 8,1988, the "mission" of the County Rescue Service is described in the iollowing terms:
The mission of the Rescue Service in an emergency is to di-rect and coordinate action to locate and save lost persons and persons trapped or injured in damaged buildings, shel-ters, vehicles and other enclosures an[d]_in radiologically contaminated areas, and to aid and assist in the recovery of critical supplies, materials and equipmc from affected areas.
Suffolk County Emergency Operations Plan, Annex L. Appendix 2 at 1 (emphasis added),
attached as Attachment N. Fulfillment of this mission would logically require training for the handling and transportation of contaminated injured members of the general public.
J
O,
LILCO has comp!!cd with this guidance. LILCO's emergency response procedures mandate annual medical emergency drills. SE OPIP 5.1.15 5.3.lc, attached as A ttach-ment O. These procedures have been judged by FEMA to be adequate. RAC Review at 83 (Attachment B).
RMC's agreement with LILCO requires it to organize and supervLw annual medi-cal emergency drills at Drunswick General llospital and Mid-!sland liospital. See At-tachment J and attached Affidavit of Diane P. Dreikorn,116-8. RMC has fulfilled this obligation.
On June 7,1988, the first day of the three-day FEMA graded exercise for Shoreham, RMC supervised a full-scale drill at Mid-Island liospitalin which a simulated contaminated injured individual was transported by ambulance f rom a relocation center to the hospital for diagnosis and treatment. Similarly, on June 8,1988, RMC supervised a full-scale drl!! at Brunswick General liospital in which the hospital staff demon-strated their abutty to recolve and treat a contaminated injured individual and a reloca-tion center demonstrated its ability to direct a contaminated injured victim to the ap-propriate medical f act!!!). Earlier, on May 14,1988, Mid Island llospital had conducted UI a partial drill of its ability to svaluate and treat a contaminated injured individual.
See Affidavit of Diane P. Dreikorn, 11 23-25.
In short. LILCO has fully complied with the guidance of MS-1. Intervenors' pro-pmed contention addresses the situation six months before LILCO was obligated to comply. Now, in light of LILCO's response to MS-1, intervenors' proposed contention is moot.
11/
This drill dif fered from a fun-scale drill only in that it did not involve the actual transportation of a simulated contaminated injured individual to the hospital.
- 15. INTERVENORS' MOTION FAl1J TO MEET THE CRITERIA FOR REOPENINO THE RECORD l
A second reason for denying intervenors' mo!'on to admit its proposed contention is that the motion does not comply with NRC requirements for reopealng a closed record.UI feg 10 C.F.R. 5 2.734. A party seeking to reopen an evidentiary record l
f aces a "heavy burden" to show that the criteria for granting such re!!ef are met. $eg Loulslana Power & Light Co. (Waterford Steam Electric Station, Unit 3), CLI-86-1, 23 NRC 1,5 (1986). This policy ensures that the Commission's resources w!!! not be di-l verted "unless there has been a strong showing that recpening is justified." Cleveland Electric illuminating Co. (Perry Nuclear Powet' Plant Units 1 and 2), CLI-86-22, i
24 NRC 685,691 n.3 (1986).
Intervenors' motion f ails to meet the "heavy burden" of S 2.734 in two principal respects: First, the motion f alls to show that a materially different result would occur; l
second, the motion is not accompanled by the required affidavits. Intervenors' motion therefore should be dismissed.NI M/
The evidentiary record for the proceeding involving the Shoreham Emergency Response Plan was closed on August 29,1984. geg supla n.5.
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This motion is directed to Intervenors' proposed contention as it now exists. Al-though Intervenors theoretically could seek to raise this issue yet again by a re-formulated contention specifically addressed to Revisions 9 and 10 of the LILCO Plan, the Commission would be justified in foreclosing such an attempt. Intervenors have had access to Revision 9 since January 1988 and Revision 10 since May 1988: a revised contention submitted in the future would be untimely. S_ce Ruke Power Co (Catawba a
Nuclear Station, Units 1 and 2), ALAB-867,16 NRC 160, 469 (1932), appiqved as to "good cause" test for late-!!!cd contentions. CL!-83-19,17 NRC 1041,1045-47 (1983)(a late-filed contention must be tendered promptly once a previously unava!!able docu-ment comes into existence and is accessible for public examination). Nor is it possible for Intervenors to meet the "exceptionally grave issue" exception to the timeline3s re-quirement of 10 C.F.R. S 2.734(a)(1): as described previously in this motion LILCO has fully compiled with the guidance of MS-1.
Additionally, a resubmitted contention would be Intervenors' third attempt to raise an issue on which there is no serious merits question. As the CommL*sion noted in a recent decision in this docket "(m]otions to reopen cannot be permitted to be a means for parties to pass off old, unsuccessful contentions as new and relitigate them in hopes of a better result the next time around." Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-88-03, slip op, at 4 (July 15,1988). As the Commis-sion also observed: "At some point the adjudleatory process must come to an end." Id.
A.
Intervonors Fall to Show That The Rmult Would Do Materially Different If Newly Prof fered Evidence llad lleen Cons _tdered_ Initially Subsection (a) of 5 2.734 requires that a motion to reopen a closed record must satisfy three criteria:
1.
The motion must be timely, except that an exceptionally grave issue may be considered in the discretion of the pre-siding officer even if untimely presented.
2.
The motion must address a significant safety or environ-mental issue.
3.
The motion must demonstrate that a materially different re-sult would be or would have been likely had the newly prof-fered evidence been considered initially.
Intervenors' motion f alls to meet the third criterion of $ 2.734(a),1&, that a ma-terially different result would have been likely if Intervenors' newly prof fered evidence had been considered initially. Indeed, they have offered no new evidence at all. The only "evidence" relied on in Intervenors' motion is FEM A Guidance Memorandum MS-1; l
the motion itself does not cite any evidence of LILCO's noncompliance. As demon-l strated in the preceding section, no such evidence exists because LILCO has fully com-l plied with the guidance of MS-1.
To the extent that Intervenors allege that LILCO's compliance is incomplete or f
insufficie7tly t'atalled, the contention still f ails to raise a litigable issue.
In its September 17, 1986 Statement of Polley following the GU ARD decision, the Commis-sion noted that "[t]br annimally necessary arrangements for the person that may be expmed need tat be elaborate" and that "the Commission continues to believe that the long-term treatment needs of expaied individuals can be adequately met on lan) ad hoc basis." 51 Fed. Reg. 32,905. In other words, Intervenors are not entitled to compel litigation cf aspects of LILCO's compliance with MS-1 merely because the arrange-ments do not satisfy their notions of appropriate arrangements for contaminated in-Jured individuals.
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B.
Intervonors' Motion is Not Accompanied By Supporft w Affidavits 1
By falling to offer any evidence in support of their motion, Intervenors also fall to meet the standard of 10 C.F.R. S 2.734(b), which requires that a motion to reopen an evidentiary record must be accompanied by an affidavit setting forth the factual and f
technical bases for the movant's claim. While Intervenors' motion promises to make in-
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formation available wh!ch will support the contention, Intervenors' Motion at it, no af-fidavits or other supporting documentation are attached or have been provided in the
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seventeen months since the motion was filed. Absent supporting Evidence,Intervenors' l
motion f a!!s to comply with S 2.734(b) and should be dismissed. _Seg Metropolitan Edison
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% (Three Mlle Island Nuclear Station, Unit 1), CLI-85-7, 21 NRC 1104,1106 (1985) l l
t ouoting Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3),
l ALAB-753,18 NRC 1321,1324 (1983)("It is not enough merely to express a willingness t
l to provide unspeelfled, additional information in support of the motion at some unknown date in the future").
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CONCLUSIOE l
In accordance with the foregoing, LILCO respectfully moves the Commission to dismiss Intervenors' proposed contention of February 25,1987, on the grounds that it is moot or,in the alternative, that it f ails to meet the criteria of 10 C.F.R. 5 2.734 for re-4
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opening the record of a proceeding.
R; tf ul y submitt
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_ Donald. Irwin James N. Christman Charles L. Ingebretson Counsel for Long Island Lighting Company 1
Hunton 4: Williams l
707 East Main Street l
P.O. Box 1535 q
Richmond, Virginia 23212 l
l DATED: July 28,1988
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