ML20154S398
| ML20154S398 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 10/03/1988 |
| From: | Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#488-7202 LBP-88-24, OL-3, NUDOCS 8810050062 | |
| Download: ML20154S398 (33) | |
Text
! ff, LILCO, October 3,1988 i
%IE0 UNITED STATES OF AMERICA C
' NUCLEAR REGULATORY COMMISSION M OCT ~3 PB :26 Before the Commission
,p oceru; in the Matter of
)
)
LONG ISLAN.> LIGHTING COMPANY
) Docket No. 50-322-OL - 3
)
(Shoreham Nuclear Power Station.
)
i Unit 1)
)
j LILCO'S COMMENTS ON THE IM!.!EDIATE EFFECTIVENESS OF LBP-88-24 In LBP-88-24 the Licensing Board resolved in LILCO's f avor all matters re-maining in controversy before it and dismissed the Intervenors (Suffolk County, the State of New York and the Town of Southampton) from the Shoreham proceeding. Lgng Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-88 24,28 NRC (Sept. 23,1988) ("Concluding Initial Decision"). Accordingly, the Licensing Board au-thorized the Director of the Office of Nuclear Reactor Regulation, upon making rv requisite findings on matters not embraced in the Concluding Initial Decision, to issue a full power operating licensa for the Shoreham facility.
Pursuant to 10 C.F.R. 5 2.764(f)(2)(11), LILCO presents its views on the Commission's determination whether LBP-88-24 should become immediately effective.II In LILCO's view, no health and safety concerns remain that warrant a stay of the licensing authorization in LBP-88-24. Therefore, LILCO respectfully urges the Com-
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mission promptly to authorize the issuance of a tall power operating license for
- Shoreham, 1/
'h comments are styled "Docket No. 50-322-OL." They address matters in both the vs-322-OL-3 and 50-322-OL-5 subdockets.
8810050062 001003 ADOC K OSC g2 0
gDR
. o e I. Introduction it is startling, but instructive, to note that LILCO applied for a permit to con-struct Shoreham two decades ago. There followed the most extensive construction per-mit hearings in the history of AEC licensing, culminating in f avorable Licensing Board (1972) and Appeal Board (1973) decisions. 2/
Thirteen years later, LILCO submitted its application for an operating license for Shoreham. The NRC docketed the application early in 1976. Litigation over it began that April. The operating license hearings were again record-setters -- the most exhaust"te and protracted in NRC history. Again the r.sults have affirmed Shoreham's safety. But simply to state this conclusion does not adequately convey a sense of the high degree of confidence it warrants. The following operating license statistics de-scribe a proceeding of unprecedented thoroughness and scope:
Profiled written testimony 27,321 pa.ges Number of witnesses 706 witnesses 3/
Number of exhibits 1,095 exhlblts Days of prehearing conferences 356 days hearings Number of hearing transcript 63,170 pages pages (not including deposition pages)
Pages of findings of f act and 10,252 pages conclusions of law proposed by the parties Pages of written rulings and 5,980 pages decisions by NRC judges Number of people deposed durir.g 327 persons
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discovery 2/
There were 70 days of AEC hearings, which began in September 1970 and contin-ued episodically for 2-1/2 years, ending in January 1973.
3/
This number includes each witness who testified on each contention. Thus, per-sons who testified on more than one contention are counted int each contention.
m
< During Shoreham's 12-1/2 years of operating license litigation, over 20 NRC Li-l censing Board judges have dealt with one or another of its f acets. These judges have formed six Licensing Boards, focusing on (1) the extensive prehearing and environ-mental matters at issue from 1976-81, (2) hundreds of health and safety issues, including diesel generator matters and onsite emergency planning, (3) plant security (4) Icw power (5) offsite emergency planning and (6) the February 1986 emergency response exercise. Few proceedings of any kind in any context involve, as has Shoreham, more than 63,000 pages of hearing transcript. Nothing else in NRC jurisprudence approaches the scope or depth of the Shoreham litigation. Repeatedly Shoreham has been found safe by NRC judges af ter exhaustive evidentiary inquiry.
The Shoreham OL proceeding comes at last to immediate effcctiveness review.
If ever such a review deserved the Commission's focused, decisive attention.. Shoreham deserves it. While the Intervenors will surely place some remaining appellate issues be-fore the Appeal Board (the overwhelming bulk of the potential appellate issues in this proceeding have already been raised and lost by the Intervenors), none of the remaining issues justif tes delay by the Commission in permitting Shoreham's licensing at full power.
A.
The immediate Effectiveness Review Under the Commission's regulations, a licensing board decision authorizing the issuance of a full power operating lleense cannot become elfective until the Commis-sion performs its "immediate oficctiveness" review.10 C.F.R. S 2.764(f)(1). The Com-mission conducts its sua sponte review of the licensing board decision to decide whether the effectiveness of the decision should be stayed "in the public interest." 10 C.F.R.
S 2.764(f)(2)(1), in effect, such licensing board decisions are automatically stayed for up to 30 days, pending Commission review. Ld.: Carolina Power & Licht Co. (Shearon Harris Nuclear Power Plant), LBP-86-11,23 NRC 294,409 (1986).
1
I.
o
. The Commisrion makes its stay decision based on four f actors:
1.
the gravity of the substantive issue (s) decided below; 2.
the likelihood that that issue has been resolved incor-rectly below; 3.
the degree to which correct resolution of the issue would be prejudiced by operation pending agency re-view; and 4.
"other relevant public interest f actors".
10 C.F.R. S 2.764(f)(2)(1). The purpose of the Commission's review is "to determine whether significant safety issues exist" that warrant a stay of the licensing authoriza-tion. 47 Fed. Beg. 40,535 (Sept.15,1982). The Commission's review is not intended to be a detailed, formal scrutiny of the record developed by the licensing board: instead, the review is informal, expedited, and focused on "significant issues of public health and safety." 1.d.
Unless the Commission otherwise explicitly so directs, any statement made in the course of its immediate effectiveness review is without prejudice to subsequent Ap-peal Board consideration of a 10 C.F.R. S 2.788 stay motion or of any merits appeals duly raised by the parties. 10 C.F.R. 5 2.764 (g); 47 F.ed. Beg. 40,536 (Sept.15,1982).
J llowever, in announcing ite. immediate effectiveness decision the Commission may give instructions about any future handling of the proceeding, for example, by directing the Appeal Board to expedite its review of particular issues, furnishing guidance on how to resolve particular issues, or bypassing the Appeal Board and accepting for itself the ini-tial appellate review of particular issues.10 C.F.R. 5 2.764(f)(2)(iv).
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B.
Issues Subiect to Review The issues remaining in litigation, or potentially subject to litigation, before the Commission can be summarized as follows:
1.
Issues resolved in LBP-33-24 (EBS, school bus driver role conflict, hospital evacuation time estimates, ntnd realism issues) 2.
Issues concerning LILCO's June 1988 exercise (the see-ond exercise) of the Shoreham emergency plan 3.
Issues pending befve the Appeal Board (L!LCO's ap-peals from the 195 exercise and Intervenors' appeal of the Licensing Board's 1988 reception centers decision) 4.
Issues pending before the Commission itself (preemp-tion and GUARD matters)
As noted in greater detail below, LILCO believes that the merits rulings and dismissal sanctions in LBP-88 M are unassaltabic # and thus present no outstanding health and 5
l l
I safety issues for immediate effectiveness purposes. 51oreover, LILCO believes that its 1988 exercise presents no such issues, !!ght of a deficiency-free FESI A evaluation and a FESIA finding of reasonable assurance based on both the LILCO Plan and the exer-cise.E Nor do any of the other remaining issues warrant staying the effectiveness of LBP-88-24.
3/
.!LCO will address the authority of the OL-3 Licensing Board to impose the dis-missal sanction in a brief to be illed with the Appeal Board tomorrow, October 4,1988.
That brief will respond to the Intervenors' brief on whether the Licensing Board in the emergency planning (OL-3) docket had the authority to dismiss the Intervenors from the entire emergency planning proceeding, including that phase initiated to consider thd results of the 1986 exercise (designated by the Chairman of the Atomic Safety and Licensing Board Panel as the OL-5 docket). The dismissal issue is also inextricably in-tertwined with the issue of which licensing board, if any, should hear any issues arising from the 1988 exercise. The Appeal Board has decided that the licensing board in the OL-5 docket should hear such issues, even though that board had disbanded following its conclusion, over six months ago, that it had fulfilled its limited mandate of reviewing the 1986 exercise. Lonc Island Lichtin1CA (Shoreham Nuclear Power Station, Unit 1),
A L AB-901, 28 N RC _.__, (Sept. 20,1988); LBP-38-7,27 NRC 289 01ar. 9,1988). LILCO strongly disagrees, and will file by October 5 its petition for Commission review of A LA B-901. LILCO is also filing today with the Chairman of the Atomic Safety and Li-censing Board Panel a motion for reconstitution of the Licensing Board to hear exercise issues, if litigation of those issues becomes necessary.
5/
Letter, Grant C. Peterson (FESI A) to Victor Stello, Jr. (NRC), September 9,1988, forwarding RAC review of Revision 10 of Shoreham Offsite Emergency Plan (September 8,1988) and Post-Exercise Assessment of June 7-9,1988 Shoreham Of tsite Emergency Preparedness Exercise (September 2,1988).
J
This view is supported by the Licensing Board's f ailure to identify serious issues requiring special consider' tion. The regulations give the licensing boards speelfic in-structions in writing their decisions:
The Commission expects the Licensing Boards to pay particu-lar attention in their decisions to analyzing the evidence on those safety and environmental issues arising under applicable Commission regulations and policies which the Boards believe present serious, close questiene and which the Boards believe may be crucial to whether a license should become effective before full appellate review is completed. Furthermore, the Boards should identify any aspects of the case which in theit-judgment, present issues on which prompt Commission policy guidance is called for.
10 C.F.R. S 2.764(f)(1)(ii). Despite the vigor with which the intervenors pursued the 15-sues, the Licensing Board identitled no such policy issue and noted no safety or environ-mental issue that requires special consideration by the Commission in its immediate ef-fectiveness review E# Nor did the Board hedge its merits rulings so as to give the Commission caution in permitting LBP-88-24 to become effective. This aspect of the Licensing Board's decision deserves deference.
LILCO's view is further supported by the many years of inquiry in this case, which provide ample basis for confidence in the merits determinations underlying the Licensing Board's action. No nuclcar plant or operating utility in this country has ever been subject to as broad, intensive, and repetitious litigation scrutiny as have Shoreham and LILCO. Intervenors in this proceeding have sought to iltigate, and in f act have liti-gated, virtually every conceivable health and safety and emergency planning issue, 5/
See the decisions resolving the '* health and safety" issues, namely Long Island Lighting Co. (Shoreham Nuclear Power Station, IJnit 1), L8P-83-57,18 NRC 445 (1933)
(Partial Initial Decision); aff'd as to most carts, ALAB-788, 20 NRC 1102 (1984); LBP-84-53, 20 NRC 1531 (1984)(ruling on remand issuesit LBP-84-45, 20 NRC 1343 (1984)(grant of exemption to requirecaents of ground design criteria to authorize !! cense for low-power operation), stav denh <j, C_uomo_ v. NRC, 772 F.2d 972 (D.C. Cir.1985) t petition for review dismissed. No. 85-1042 (D.C. Cir. Mar. 12, 1987).
along with a host of other issues. In p0rticular, the issues resolved in LBP-88-24 -- EBS.
school bus driver role conflict, hospita'. evacuation and realism -- have been in near-constant litigation since 1983. Occasionally this process has produced improvements in emergency planning (though they could have been effected f ar more easily with the co-operation of the intervening governments). But mostly it has produced delay and its offspring, la, opportunity for interference with and obstruction of effective emergen-cy planning.
The Licensing Board has long since found in absence of unremovable otestacles to emergency planning for Shoreham. The Board has found (nothing) unique about the demography, topography, access routes, or jurisdictional boundaries in the area in which Shoreham is located. To the contrary, the record fa!!s to re-veal any basis to conclude that it would be impossible to f ashion and implement an effective offsite emergency plan for the Shoreham plant.
Long Island Lightine Co. (Shoreham Nuclear Power Station, Unit 1), LBP-35-31,22 NRC 410, 427 (1985). This finding has never been disturbed on appeal. ALAB-832, 23 NRC 135 (1986). Indeed, it has been noted by the Commission. CLl-85-12, 21 NRC 1587, 1589 (1985). Thus, it has been settled for over three years that effective emergency planning for Shoreham is not only possible but achievable absent active obstruction.
But Intervenors' efforts to derall Shoreham licensing through litigation did not cease upon that rulingt to the contrary, Intervenors to this day seek to litigate overy imagin-able f acet of the LILCO plan, all the while claiming that radiological emergency plan-ning is impossible on Long Island. Indeed, they have already indicated their intent to
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appeal LBP-88-24. Governments' Motion for Bifurcation of Appeal and for Expedited Treatment of Jurisdictional Issue, September 27,1988.
In LBP-66-24, the Licensing Board resolved in LILCO's f avor the last of the sig-nificant remaining emergency planning issues standing as an obstacle to full power op-eration. The Board identified no issues that would cause the Commission to stay the
I.
effectiveness of the Board's license authorization. In LILCO's view, no public interest considerations dictate that result. Thus, LILCO respectfully urges the Commission not to stay LDP-88-24 and, upon review of the Staff's findings under 10 CFR 5 50.57(a), to authorize forthwith a full power operating license for the Shoreham Nue: car Power Station.O C.
The_ Commission's Thkd and Eourth Factors The third and fourth factors that the Commission considers in its review are "the degree to which correct resolution of the issue would be prejudiced by op-eration pending review" and "other relevant public interest factors."
10 C.F.R.
S 2.764(f)(2)(1). Both f actors militate in LILCO's f avor on all remaining issues.
The third factor definitionally favors LILCO. None of the issues on appeal 1
will be prejudiced by Shoreham operation because they concern offsite emergency plan-ning. These are not plant issues where, for example, operation would irradlate or stress a reactor component and thereby affect an appeal of an issue concerning that compo-nent. The issues remaining before the Commission exist in the world outside the plant, and the legal arguments can (and undoubtedly will) go on unaffected by plant operation.
Likewise, the "other relevant pAlle interest f actors" consideration mill-tates in LILCO's f avor because it is in the "public interest" to operate a safe plant. The C' amission has found that the Shoreham plant is safely designed and constructed. In aultion, all emergency planning issues have now been resolved, at least in the first 1/
The Intervenors, notwithstanding their dismissal from this proceeding in LBO-
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88-24, will undoubtedly claim that the public interest requires closer examination and further litigation on the remaining issues and urge the Commission to stay Shoreham !!-
censing pending that process. But it would be unseemly for them to seek a stay of Shoreham licensing "in the public interest"i.n light of the Licensing Board's finding that Intervenors' misconduct and repeated refusal to be forthcoming on emergency planning matters over the years - already sanctioned by dismissal of their contentions in the "Phase 1"(onsite) portions of this proceeding have themselves been "prejudicial to the public interest." Concluding Initial Decision LBP-33-24, slip op, at 127.
. o instance, in LILCO's f avor. The "public interest ' dictates that a safe plant backed by an adequate emergency plan should be allowed to operate.
II. Discussion A.
Issues Resolved in LBP-88-24 In LILCO's view, there is no outstanding issue from the Concluding initial Dect-sion that is of sufficient gravity to warrant a stay, that is likely to have been resolved incorrectly below, or the resolution of which would be prejudiced by plant operation pending further review. Nor are there any interest factors that "public militate" for a stay. LILCO discusses each issue in turn below.
1.
Emergenev Broadcast System (EBS)
LILCO filed a motion for summary disposition with the Licensing Board on the Emergency Broadcast System (EBS) issue on. June 20,1988. LILCO's motion on the offi-cial New York State EBS system for the Nassau-Suffolk Counties Operational Area both to broadcast EBS messages and to activate the tone alert radios in schools, special fa-cilities and other institutions. Sec LILCO's Second Motion for Summary Disposition of the EBS Issue (June 20, 1988). LILCO emphasized that the State EBS is composet of a network of about 30 radio stations on Long Island, including WALK Radio and other sta-tions that previously were part of the Shoreham-specific EBS network tl.at was liti-gated and approved by the Licensing Board in 1985. Ld at 5,7. LILCO's motion relied primarily on the Commission'.s "best efforts" principle for activation of the system, Ld.
at 3, and provided f acts sufficient to establish the ability of the State EBS to activate tone alert radios and broadcast EDS messages across the full Shoreham 10-mile EPZ.
The Liecasing Board granted LILCO's summary disposition motion, finding that LILCO had established "the adequacy of its (EBS) plan to comply with NRC regulations and guidance concerning a public emergency warning system." Concluding Initial Deci-sion at 32-33. The Board noted that, despite having had a full opportunity to confront
o i LILCO's material f acts, Intervenors had ' ailed in their response to controvert any of them. Ld. at 32. The Board therefore found, based on LILCO's uncontroverted facts and previously established facts, that LILCO had demonstrated the ability of the State EBS to inform the public in the EPZ through direct radio broadcast and activat!on cf tone alert radios.0 Considerat'on of the factors in 10 C.F.R. 5 2.764(f)(2)(1) precludes a stay of the etfectiveness of LBP-38-24 based on the EBS issue. The LILCO Plan relles on precisely the same EBS that the State of New York and Nassau and Suffolk Counties rely on to broadcast information in emergencies. LILCO attached to its summary disposition mo-tion a copy of the State EDS plan and the specific annex to it that contains EDS provi-sions for Nassau and Suf folk Counties. Intervenors c!d not disavow these pla is or the EBS system itself t nor did they challenge its broadcast capabilities, despite ful.pportu-nity to do so.El The Board found that intervenors' statement of "f acts" was nothing but an "inad-equate and improper" list of issues that "did not tend to disprove or controvert any in-formation submitted by LILCO." Concluding Initial Decision at 18. LILCO's motion demonstrated, with relevant attachments and appropriate affidavits, that (1) an official Sta,te EDS exists, (2) the State, Suffolk County and LILCO have detailed procedures for activating it, and (3) the EDS has sufficient broadcast capabilities to broadcast emor-gency information to the 10-mile EPZ and activate the (rtdundant) tone alert radios.
The Board expressly found that none of LILCO's material facts had been controverted.
1/
The Board reaffirmed, however, that tone alert radios are not required by NRC regulations and that LILCO's use of them is merely another redundancy in its alerting and notification capabilities. Concluding Initial Decision at 27t s_ee Long Island Lichting
_Co (Shoreham Nuclear Power Station, l' nit 1), LBP-85-12,21 NRC 644,760 (1985).
9/
Intervenors have had an exceptionally long time to raise issues about the adequa-cy of the State EBS LILCO first relied on that system,in detail,10 its Second Renewed Stotion for Summary Disposition of the Legal Auti.ority Issues, filed Starch 20,1937, t
[d, In short, Shoreham's ability to rely on the existing official EBS system for the State of New York and the Nassau-Suffolk Counties Operational Area is cicar.
Nor will resolution of the EDS issue be prejudiced by plant operation pending re-view. Any EBS matters that the Intervenors wish to raise on appeal will survive plant operation unimpaired. The plain fact is that a state EJS system exists, and the Inter-vening governments would, as part of their "best efforts" response to any Shoreham emergency, activate that system to help protect the public, if LBP-38-24 were re-versed and further litigation on EBS matters allowed, Intervenors could dispute details about the broadcasting characteristics of various stations without prejudice from Shoreham operation.
2.
Scho)! Bus Driver Role Conflict At issue is whether "role conflict" would cause school bus drivers to abandon their jobs in an emotgency.N "Rolo confilet," as the massive record in this case shows, has not proved to be a serious problem in any real emergency response in history, Storeover, it is a generic issue of human behavior that has been litigated, and resolved in the applicant's favor, in a number of NRC cases besides this one.U# in these cases, g/
Issues were also raise <1 below about whether additional drivers supplied by LILCO wo'uld be able to do tnelr job, but no serious reason why they could not was ever put forth see Concluding Initial Decision at 51-56. "Role conflict" of Lil,CO employees was resolved in LILCO's !avor long ago.
M/
See LBP-85-12, 21 NRC 644, 679 (1985),
C_ar_oliw r Light Co, (Shearon a
t Harris Nuclear Power Plant), LBP-85-40, 22 NRC 899, 915 (1985) and LBP-85-27A 22 NRC 207, 227-29 (1985), af f'd, CLI-87-1, 25 NRC 1 (1937); Philadelpfl a Electric Co i
a (Limerick Generating Station Units 1 and 2), LBP-86-32,24 NRC 459, af f'd, ALAB-857, 25 NF.C 7 (1987); Detroit EdisoJ Co, (Enrico Fermi Atomic Power Plant Unit 2), DD-84-11,19 NRC 1108,1116-18 (1984); Consolidated Edison Co (Indian Point Unit No. 2),
L8P-83-63,18 NRC 811, 959 (1933), reviewed, CL1-85-6, 21 NRC 1043 (1985): Pacific Gas & E;tectric Co,(Diablo Canyon Nuclear Power Plant, Units 1 and 2) LBP-32-70,16 NRC 756, 767-63 (1982), af f'd, CLI-84-13, 20 SRC 267 (1984): Mqtr_opollt_an Edison Co, (Three Stile Island Nuclear Station, Unit No.1), LBP-81-59,14 NRC 1211,148C-59 (1981), af f'd in princigal part, CLI-83-22,13 NRC 299 (1983). The same issue is now being litigated in the Seabrook case, Docket No. 50-443-444-OL, and was litigated in the (footnote continued)
I' the licensing boards typleally found that the hypothetical problem of "role conflict" was not borne out by the historical record. In some of the cases the Appeal Board remanded for additional evidence, but once that additional evidence was presented, role conflict was found not to be a problem.
The likelihood that the issue of "role conflict" has been resolved incorrectly by the Licensing Board is negligible. The record in this case alone is overwhelming that the hypothetical problem of role conflict has not manifested itself in real emergencies.
This issue has been in litigation since 1982 (counting the "Phase 1" testimony) and the Intervenors have f ailed utterly to produce any empirical evidence that "role confilet" interferes with emergency response. LILCO. on the other hand, presented evidence that in over 6,000 interviews the Disaster Research Center found no instance where the functioning of an emergency organization was undercut by personnel not reporting to duty, Crocker et al., f f. Tr.19,431, at 11-12. Tr.19,527-28, (5111011), Cordaro et al., ff.
Tr. 831, at 16-17: that in some 300 "disaster response questionnaires" compiled by i
l FESIA since 1986, no mention is made of role abandonment as a problem in real emergencies, Crocker et al., f f. Tr.19,431, at 32-33: and that LILCO's own phone sur-veys of bus drivers and emergency personnel show that in some 16 large-scale evacua-i tions in which buses were used to evacuate people there were always enough drivers for evacuation buses, Crockcr et al., ff. Tr.19,431, at 28-29. LILCO's witness's testimony that "there has never in the history of the country been an organization that has been unable to do what it was supposed to do in an emergency because of role abandonment or role confilet or role stress," Tr. 19.570-71 (5111eti), is uncontradicted on the record.
1 1
(footnote continued) f Zimmer case, where it was remanded but never resolved because of the cancellation of j
the plant. See Cincinnati Gas & Electric Co, (William H. Zimmer Nuclear Power Sta-tion, Unit 1), LBP-52-47,15 NRC 1538,1597 (1932), remanded ALAB-727,17 SRC 760, 772 (1983).
i i
Neither New York State nor Suffolk County was able to cite emergencies in which role abandonment has been a problem 42/ nceed, the case against "role abandonment" was I
also made by Suf folk County's own witnesses.N Finally, as with the EDS issue, operation of Shoreham can have no adverse effect on the appellate consideration of "role conillet " and the overwhelming weight of the evidence makes clear that school bus drivers will evacuate school childrer, if the need arises.
3.
IMs_pftal Evacua_Ilon Time Estimates The factors that militate against a stay of effectiveness pending appellate re:
view are analyzed in detail below, but they can be capsulized by three f acts:
12/
See Board $1emorandum and Order (Ruling on LILCO Slotion to Compel Answers to Certain Interrogatories and Request for Production of Documents) at 2 (Apr.14, 1988) (unpublished); Respense of the State of New York to LILCO's Second Set of Re-quests for Admissions Regarding Role Conflict of School Bus Drivers at 3 (51ar. 4,1988).
M/
Suffolk County's school administrator witnesses emphasized how responsible, carefully selected and well-trained their regular school bus drivers are. For example, the Director of Transportation for 511ddle Country Central School District personally l
Interviews and approves each driver. Brodsky ei_al., ff. Tr.10,259, at S. He looks for the "composure and capability to gain the confidence and respect of children and par-ents." M. at 9. Among other requirements, each bus driver for that District must sub-mit three letters of reference and undergo fingerprinting to verify that she does not have a criminal record. Ld. at s. Bus drivers for the District then undergo 40-50 hours of Instruction. M.t see also id at 15 (Riverhead Central School District provides such training),18 (Longwood Central School District provides such trainmg),20 (Superinten-dont of East 51cadow Union Free School District personally approves drivers), 21, 22 (Superintendent of Sit, Sinal School District personally approves 'triverst Transportation Director personally interviews every driver)t 23-26 (drivers receive extensive super-vised on-the-job training, including biennial ref resher courses and additional meetings).
Tr. 20,344-50 (Doherty, Koenig, Rossi) 20,352-53 (Rossi). As a result, the drivers take their jobs seriously, or else they are removed from duty. Tr. 20.353 (Smith). And the Licensing Board has already found that regular school bus drivers are expected to drive school buses in an evacuation of school children. LBP-85-12,21 NRC at 559.
Also, the drivers are assigned ;o drive the same routes every day so they "can learn who the children are on their bus, and hopefully develop a first name relationship with the kids." Tr. 20.353 (Smith). One County witness indicated that the school dis-
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trict strives for a "feeling of family on that bus." Tr. 20,354 (Suprina). The drivers, mostly women, do a "terrific jo'J." Tr. 20.354 (Doherty). "The rapport that drivers es-tablish with children going to school on an everyday basis is sound and it is strong." Tr.
20,403 (Suprina),
i
o 14 1.
The Intervenors themselves, in their proposcd findings, con-ceded that LILCO's model "is close enough to provide ade-quate hospital ETEs." Suffolk County, State of New York, and Town of Southampton Proposed Findings of Fact and Conclu-sions of Law on the Rcmanded Issues of School Bus Driver Role Conflict and Hospital Evacuation Time Estimates at 117 9167 (June 30,1988).
2.
The issue affects approximately 500 hospital patients, see Concluding Initial Decision at 79, who are at the very edge of the 10-mile EPZ and who would te evacuated, if at all, only in the most extreme accidents.
3.
Any changes resulting f rom an appeal of this issue would, at most, require LILCO to include additional information in its plan to help make decisionmakers make marginally better de-calons in the most unlikely of accidents, The remanded hospital evacuation issue was a narrow one: whether LILCO's evacuation time estimates (ETE's) for the three hospitals included for planning purposes in the 10-mile EPZ have adequate bases and accuracy to comply with NRC regulanons and guidance. Concluding Initial Decision at 66.
Af ter hearings in which 1: heard testimony by experts presented by New York State LILCO and the Staf t, the Board found LILCO's hospital ETE's to be accurate and "adequate to meet the standards and criteria of SRC's regulations." Ld. at 66-67, 87. The Board also found no merit in Inter-venors' insistence that LILCO be required to include the results of sensitivity analyses alo,ng with the ETE's in the plan. Ld. at 67.
U/
In its 1985 Partial Initial Decision the Licensing Board found LILCO's plan for protective actions for hospital patients adequate and reasonable, despite the f act that the LILCO Plan dio not provide specific ETFJs for each hospital, 1,ongJsland Lig,hting Co, (Shoreham Nuclear Power Station, l' nit 1), LBP-35-12, 21 NRC 644, 335-46 (1985).
On appeal, the Appeal Board remanded, holding tbit LILCO must provide the same de-gree of planning for hospitals as it does f or other special f acilities and, in particular, LILCO must supply hospital ETE's, ALAB 832, 23 NRC 135,154-57 (1986). The Com-1 mission took review and agreed with the Appeal Board that the regulations require ETE's for the 10-mile EPZ "without exceptions for special f acilities such as hospitals."
CLI-37-12, 26 N RC 383, 398 (1987). LILCO filed a summary disposition motion on the hospital evacuation plan on December 18, 1957, The Licensing Board denied that part of LILC' 's motion dealing with hospital ETE's. Memorandum and Order (Ruling on LILCO's Motion for Summary Disposition of the Hospital Evacuation Issue), February 24, 1988 (uapublished). The Board ordered a hea:'ing, restricting it to "the narrow confines of the bases and the accuracy of the evact:ation time estirnates"in the LILCO Plan. Ld.
at 12
First, the gravity of the hospital ETE issue is not sufficient to stay the licensing authorization pending further review. As the Licensing Board found in 1985, in the "vast majority of cases" of an accident at Shoreham, sheltering would be the protective action of choice. PID,21 NRC at 844,846 (1985). This is due to the hospitals' location about 10 miles from Shoreham, the high sheltering characteristics of the hospital build-ings, and the potential for further injury to hospital patients in an evacuation. Ld. The l
Commission has previously agreed that "sheltering will quite likely be the preferred protective action for EPZ hospitals in the event of a serious accident." C LI-87-12, 26 NRC 398 (1987). Moreover, as the Board realized, the ETE's are only one sm;ill f actor in deciding whether to evacuate the hospitals. Concluding Initial Decision at 83. Given the extreme unlikelihood that the hospitals would ever have to be evacuated, the public interest does not require that operation be stayed to allow further quibbling over the details or alleged calculational errors in hospital ETE's.
Second, the Licensing Board's decision on this issue is correct. Despite Interve-nors' numerous allegations of flaws in LILCO's ETE's, Intervenors' own expert witness deemed them "close enough." Concluding Initial Decision at 69, 76-77. Indeed,Interve-nors' witness calculated his own ETE's for the hospitals, and they turned out "suff t-ciently similar to LILCO's for similar assumed condit'.ons to conclude that there is no f actual controversy concerning the basis and accuracy of LILCO's ETE's." M. at 73-74,
- 76. The Staff's expert witness also supported LILCO's ETE's. Id. at 68. Nonetheless, intorvernors continued to press their claims that LILCO's ETE's were replete with error, unreliable, and deficient bec.luse of LILCO's "failure" to include multiple sensitivity analysis in its calculations.E The Board properly rebutfed these claims, and L5/
As the Licensing Board's decision indicates, Intervenors expanded the hospital ETE proceeding, without the Boa,'d's consent, from a narrow examination of the bases and accuracy of LILCO's ETE's to the broader inquiry of whether LILCO should be re-(footnote continued) l f
articulated its reasoning in full detail. In short, the Licensing Board's decision on this matter is unassallable, and provides no reason to stay the effectiveness of LBP-88-24 pending appellate review.
Finally, any further process on the hospital ETE issue would not be prejudiced by Shoreham operation. Intervenors' "oursuit of precision" in LILCO's calcuations, if al-lowed, could go on indefinitely, uninfluenced by plant operation (and, most likely, without influence om plant operation or ef fective emergency planning).'
4.
Realism The history of the realism contentions is well known to the Commission, and, in any event, is set forth in the Licensing Board's decision. Concluding initial Decis!on at 89-94. It is suffielent to note that the realism principle, first propounded by LILCO in 1984, was adopted by the Commission in CLI-86-13,24 NRC 22 (1986) and codifiec and expanded in the Commission's new "realism rule." 10 C.F.R. 50.47(c)(1), 52 Fed. Reg. 42078 (Nov. 3,1987). The realism rule has been uphMd by the U.S. Court of Appeals for the First Circuit. Massachusetts v. NRC, Nos. 87-2032, 87-2033. 88-1121 (1st Cir.
Sept. 6,1988).
The Licensing Board resolved the realism contentions against the Intervenors by way of a ruling on the merits and by dismissing Intervenors from the Shoreham pro-eceding. Concluding Initial Decision at 89. The merits rulings are based on LILCO's (footnote continued) quired to include multiple sensitivity analyses in its plan. Concluding Initial Decision at 69, 70, 76-77. The controversy was pressed by Intervenors well past the point at which, in the Board's view,it should have stopped. la, when it became clear that there was no significant factual dispute. As a result, Intervenors forced the expenditure of ?aring time on "meaningless pursuit of precision, strenuous efforts to find error however small, and to debug LILCO's computer program." Id. at 76. The Board noted that the "good f aith course" for Intervenors to have taken when it became clear that no contro-versy existed on the narrow issue set of hearing would have been to settle or withdraw the issue. Id at 85. Had the Board reccgnized Intervenors' attempt; to enlarge the hearing, it ilkely would have prevented them. Ld. at 77.
e
- 17,-
prima [acle case, on the Commission's realism rule, and on the presumption that, had Intervenors not defied the Board and def aulted on their discovery obligations,informa-tion clicited from Intervenors would have been adverse to their position on the conten-tions.
The Board's dismissal sanction was based on a si.vyear pattern of discovery abuses, other obstructionist activities, and overall disregard for the authority of and processes instituted by the NRC's lleens'ng boards. The Board found Intervenors' ob-structive conduct in the realism proceeding to be "the culmination of a pattern of be-havior designed to prevent the Commission from reaching an informed conclusion with respect to the adequacy of LILCO's emergency plan." Conclu('ing Initial Decision at 108.
As to the gravity of the realism contentions, the Licensing Board noted that they are important to safety. Concluding Initial Decision at 108, it can hardly be gainsaid that the !cgal authority contentions as originally formulated, were potentially grave is-sues, since they questioned the legal authority of LILCO to carry out certain functions i
that the LILCO Plan contemplated it performing, without the aid of nonparticipating governments.
However, af ter CLI-86-13 and the promulgation of the realism amendments to 10 C.F.R. S 50.47(c)(1), the Licensing Board reformulated the legal authority contentions to reflect the Comission's presumptions that, in an emergency (1) state and local gov-l crnments will use their best efforts to protect the public health and safety and (2) their t
best elforts response would, in the absence of an adequate and feasible alternative plan, t
Lee 10 C.F.R. S 50.47(c)(1)(1983); 52 Fed. Reg.
utilize the utility's emergency plan.
e 42078 (Nov. 3,1987).
The "legal authority" question thus became a question of coordination of utility emergency response with the state and local governments' re-sponse. Thus, the realism contentions pending before the Licensing Board questioned whether LILCO's emergency plan and the best efforts response of the State and County r
governments will satisfy regulatory requirements concerning the specific emergency function at issue in each contention. Concluding initial Decis!on at 133-34. These is-sues, in 11ght of LILCO's provision of detal!cd information, unrebutted by Suf folk County or New York State, concerning their postulated (and undeniable) emergency response capability, are matters now resolved in LILCO's f avor, in addition, given these govern-ments' position over the past six years, they are not issues that will be developed signif-leantly by further scrutiny (or the delay attendant upon it),#
i in any case, it is unlikely that the Licensing Board resolved the realism conten-tions incorrectly. Both the Board's merits ruling and dismifsal from the proceeding are firmly supported by the record.
The Licensing Board dismissed Intervonors from the proceeding based on the en-tire record of the emergency planning proceeding. Although the Board foceSed on In-1 tervenors' obstructionist conduct in the realism proceeding,b it made clear the f act that Intervonors' recent conduct was merely a continuation of a six year strategy of delay and prevention of the Commission from making the required assessment of 16/
It is noteworthy that the Licensing Board in LDP-88-24 was unanimous in concluding both that LILCO deserves a victory on tile _merlis on the realism issues and that Suffolk County's and New York State's misconduct is both repeated and deserving of danction. Judge Shon departed from his colleagues only on the issue of whether that conduct warranted their dismissal from the entire proceeding,,
II/
The intervenors defied the Licensing Board's discovery and other orders on at least four different occasions. The Intervenors filed testimony that was unresponsive to the realism issue M. at 93; prevented LILCO from obtaining relevant information during depositions by asserting unreasonble objections W.; refused to make knowledge-able people available for depositions, Id. at 128; refused to answer LILCO's interrogato-ries completely and forthrightly, M.t produced a key emergency planning document, the Suffolk County Emergency Operations Plan (EOP) about !!ve years af ter it first should have been produced, W. at 119-21; and filed their improper "Notice that the Board Has Precluded Continuation of the CLI-86-13 Remand," in which they not only refused to proceed according to the Board's orders but also laid the blame for their "inability" to do so at the Board's feet. W. 95-97. This pattern of conduct was akin to, if more exag-i gerated than, that which had led to the dismissal of their "Phase !" (onsite) emergency planning contentions in 1932. See LBP-32-115,16 NRC 1923 (1932), af f'd. ALAB-788,20
)
NRC 1102,1176-79 (1984).
I i
LILCO's emergency plan. Concluding Initial Declslon at 102, 108, 109-115. This course of conduct included insistence that emergency planning for the Shorcham plant was im-possibic, despite the Commission's rulings that only the Federal Government has jurts-diction over radiological health and safety issues, and the Commission's f actual finding (on a record that included full consideration of Intervenors' views) that emergency planning for Shoreham la possible; a motion to terminate the proceeding based on Suf folk County emergency planning resolutions; enactment of an unconstitutional crim-inal law in an attempt to prevent a Federally-mandated emergency exercise; and dis-connection of emergency telephone lines. Id. at 110-112.
The Board duly considered imposing the lesser sanction of dismissal of the real-1 ism contentions, but concluded that that sanction was insufficient in the f ace of Inter-venors' willful, bad faith refusal to comply with Board orders. Concluding initial Dect-sion at 112, 114-115, 129-30. Importantly, the Board pointed out that imposition of that lesser sanction at an earlier phase in the proceeding had not had the desired effect of mitigating the harm of Intervenors' conduct and deterring future misconduct. Id.at 108,113. !n short, the Board's dismissal sanction was appropriate for the !cngth and se-verity of Intervenors' misconduct in this proceeding, and thus is unlikely to be over-turned.
The Board's merits determinations also are fully supported by the record. They are based on LILCO's prima f acio caso (which is itself based on previously adjudicated or admitted f acts), on LILCO's prefiled testimony, on previously submitted af fidavits, on the Commission's realism regulations, and on the Intervenors' refusal to come for-ward with an affirmative case.NI In the case of each emergency planning function M/
Intervenors it!cd testimony on tue realism contentions but it did not address the substantive questions that the Board defined for hearing. Concluding Initial Decision at
- 93. In addition, the Intervenors defied the Board's orders and refused to proceed with discovery on the realism issues, thus allowing the Board to presume that the informa-tion that would have been elicited from Intervenors would have been adverse to their position.
O speelfled in the realism contentions -- traffic control (Contentions i and 2), cicaring road obstructions (Contention 4), stren and EBS activation (Content!on 5), making and issuing protec ive action recommendations (Contention 6), making and issuing pro-tective action recommendations for the ingestion pathway (Contention 7). recovery and reentry deelslonmaking (Contention 8), and perimeter access control (Contention 10)--
the substantive actions to be taken and procedures to be followed were previously adju-dicated and decided in LILCO's favor. Concluding Initial Decision at 135, 138-139, 140, 141, 143, 145, 146. And for each function the Board duly cons!dered the extent and ef-feet of the forthcoming State and County resp 9nse, includin~g any delay that might be occasioned by LILCO's need to consult or coordinate with each. Ld. at 135-47. Given the Licensing BoarCs previous acceptance of LlLCO's plan for performing these fune-tions, the ample evidence in the record demonstrating the resources and capabilities of the State and County, the Intervenors' discovery default and the adverse presumptions flowing therefrom, and the Commission's best efforts presumption, the Licensing Board's merits determinations on the realism contentions are virtually immune to chal-
!cnge.
Finally, further process on the reallsm issues will suffer no prejudice from Shoreham operation pending review. First, it is unlikely that these issues were decided incorrectly. Second, given their performance in these proceedings to da o, it is unlike-ly that Intervenors would ever be forthcoming on the realism contentions in a way that would contribute materially to their further resolution. Last, it is likely that if the Commission allows LBP-38-24 to become effective, and authorizes full power op-eration, the County and State will accede to the Commission's judgment and begin participating in the emergency preparedness effort. Ece Lonc !sland Lighting Co.
(Shoreham Nuclear Power Station, Unit 1). CLI 66-13,24 SRC 22,29 n.9 (1986); CLI icg also CL1-86-14,24 SRC 36, 40 n.1 (1986). In that 12, 21 NRC 1587,1589-90 (1985);
e case, the realism issues would be moot.
In LILCO's view, it is unlikely that the Licensing Board decided any grave issues incorrectly in LBF-38-24. To the contrary, the decision is amply supported by the record and the Board's reasoning is clearly articulated. Therefore, no public interest consideration warrants a Commission stay of the decision's effectiveness, and LILCO urges the Commission to make it immediately of fcctive.
In addition, however, if the Commission thinks that the issues decided in LDP 24 merit expeditious additional review, LILCO respectfully suggests that the Commis-sion itself hear Intervenors' appaals, pursuant to 10 C.F.R. 5 2.764(f)(2)(lv). Intervenors already have noticed their appeals and are currently preparing their brief for filing with the Appeal Board. The Commission could expedito the final resolution of those appeals, if it deems that course necessary, by directing that appeal briefs be filed di-rectly with the Commission.
B.
Issues Arisinz from the 1988 Exercise The second set of issues pending before the Commission are those arising from the FEMA graded exercise conducted at Shorcham on June 7-9, 1988. The exercise lasted three days and included emergency response functions concerning protective ac-tions for the 10-mile plume exposure pathway 50-mile ingestion exposure pathway, and ree,overy and reentry. FEM A issued its Post-Exercise Assessment ("PEA") on September 2,1988, finding that "the exerciso demonstrated adequate overall preparedness on the part of LERO personnel." Letter from Grant C. Peterson, Associate Director. State and Local Programs and Support (FEMA) to Vic'3r Stello, Jr., Executive Director for Op-erations, NRC, dated September 9,1988. Based on the 1988 exercise and a review of the LILCO Plan FEMA reached an overall fi,; ding of reasonabic assurance that the LlLCO Plan can protect the health and safety of the public living in the vicinity of the plant. Id.
O o The 1988 exercise presents no reason to stay the effectiveness of the Licensing Board's license authorization, even though the exercise results have not been liti-gated.IE# FE51A has thoroughly examined the exercise resu'?s, using reports filed by the 68 federal evaluators who were present at the exercise. PEA at 2.
FE51A found no N in the exercise, and identitled only a small number (14) of ARCA's.N Deficiencies Based on the exercise and on a Regional Assistance Committee (RAC) review of the LILCO Plan. FESTA reached a finding of reasonable assurance which it has officially transmitted to the NRC, Letter. Grant C. Peterson (FE5tA) to Victor Stello, Jr.,(NRC),
September 9,1988 with enclosures.
The Commission need not await litigation of the exercise results to authorize Shorehani operation. First, litigation of exercise results is not required. All the Union of Concerned Scientists case requires is that intervonors in NRC operating license hearings not be precluded from the opppelunity to dispute issues raised by an exercise.
Union of Concerned Scientists v. NRC,735 F.2d 1437 at 1449 (1984). Here, the Interve-nors in the Shoreham proceeding have been dismissed for their pattern of misconduct and defiance of the NRC's licensing boards over the last six years. Thus, Intervenors i
i 12/
It is questionable whether the 1988 exercise reuslts will be litigated. Although the Intervenors have indicated their desire to litigate those results, the Licensing Board in LBP-SS-24 has dismissed them from the entire emergency planning proceeding. In-tervenors have appealed, and the issue of whether the Licensing Board had the i
authoristy to so dismiss them is now being bricted before the Appeal Board. LlL C O's brief on this matter will be filed tomorrow, October 4.1988. LILCO's position is that t
rhe Licensing Board clearly had such authority.
20/
FESIA defines "Defic!cnev" as a demonstrated and observed inadeqaucy that would cause a finding that off site emergency preparedness is not adequate ot provide reasonable assuranen that appropriate measures can be taken to protect the health and safety of the public living in the vicinity of a nuclear power f acility in the event of a radlological emergency. PEA at 10.
i 2_1/
ARCAs are demonstrated and observed inadequacies of performance, and al-though their correction is required, they are not considered, by themselves to adversely impact public health and safety. PEA at 10, i
t
have forfeited any opportunity they once had to litigate the 1083 exercise, and the Li-censing Board has properly dismissed them as parties.
Second, even if the Intervenors were allowed to litigate the recent exercise,it is not likely that they would identify new problems, or shed additional light on those FESIA has already identified in its Post-Exercise Assessment (PEA). It is likely, howev-er, that such litigation would take a considerable amount of time and unnecessarily bleed the resources of the NRC and the parties, Intervenors have litigated LILCO's 1986 exercise in extreme detail over a course of more 'han 2i years, and yet the funda-mentai flaws that the Licensing Board found generally followed the contours of the FESIA PEA. Intervenors did not materially aid the Board's assessment of the exercise:
they merely piggybacked onto the FEN!A PEA, elaboratirg and supplementing FE51A's l
findings along the way, and arrived at basically the same conclusions that FES!A reached in its assessment. The same result probably would reached if litigation of the 1988 exercise were to proceed. With a deficioney-free FE! :A assessment, however, 4
there is little justification for such a course.
l The Commission should rely on the findings of the Staff and FEStA concerning the exercise. FEN 1A has made a finding of reasonable assurance, based on the LILCO Plan and the 1988 exercise, independent from the Licensing Board's finding of reason-l able assurance in LBP-88-24. As the Commission has previously stated in this case, "under (SRC) regulations and practice, Staff review of exercise results is consistent with the predictive nature of emergency planning...." CL1-86-11, 23 NRC 577,581 (1986).
Nothing in the 1988 exercise warrants a stay of Shoreham lleensing.
Ees e
Cleveland Electric illuminatine Co. (Perry Nuclear Power Plant, L' nits 1 and 2), CLI 22,24 NRC 685 (1986).
22/
In CLI-86-22, the Commluion authorized the issuance of a full power operating
!! cense for the Perry unit 1 plant based on its review of matters adjudicated before the 4
(footnote continued)
.s.
!3 Luc.LEendlntBefore the_ApptaMo_ary i
C.
Two sets of issues are currently pending before the Appeal Board: LILCO's ap-peal from the Licensing Board's Initial Decision in the OL-5 docket on LILCO's perfor-mance during the 1986 exercise (LDP-38-2) and Intervenors' appeal from the Licensing 3
Board's dec!;!on in the OL-3 docket approving the LILCO Pir.n provisions for general population reception centers (LDP-88-13, 27 NRC 509 (1988)) U# Neither warrants the l
Commission's staying the Licensing Board's full power licensing authorization.
- 1. Jjt36 Exe cise Appeajs LILCO has appealed the OL-5 Licensing Board's finding of fundamental flaws in the LILCO Plan arising out of the February 1986 exercise. Since the regulations' pre-sumptive two year exercise effectiveness period has expired, the results of that exer-cise cannot serve as a basis for a license absent an exemption, and the specific f actual
(
issues on appeal are technically moot. Eeg 10 C.F.R. Part 50, App. E 5 IV.F.1. The Ap-peal Board's deelsMn is desirable primarily to provide guidance on the definition of "fundamental flaw," for application in any future exercise litigation. However, ir, the event that the 1988 exercise is not litigated, even this advisory-opinion function loses i
its relevance. Thus the Appeal Board's dects!on is 90] of suffielent import to forestall 0
i (footnote continued) r i
licensing board and uncontested matters. The licensing board had telled heavily on FEMA's finding of no deficiencies in a 1984 exercise. 24 NRC at 689-90. When the Governor of Ohio subsequently withdrew his support for Perry emergency plans pending the findings of his own investigatory team, the Commission declined to delay the etfec-l tiveness of the licensing board's lleense authorization, primarily because FEMA found no reason to retract its reasonable assurance finding. L4. at 693-95.
.,l M/
Also pending before the Appeal Board, as mentioned previously, are Intervenors' recently noticed appeals of LBP-38-24. These appeals await briefing; the Appeal Board has bifurcated Inter'. enors' appeal pursuant to Intervenors' motion and has indicated its intent to expedite its consideration of the question of the OL-3 Licensing Board's au-thority to dtsmiss Intervenors from the entire proceeding. Appeal Board Order (Sept.
27, 1988); Memorandum and Order (Sept. 29, 1988). LILCO will file its brief on that question on October 4.1983.
i
1 O
Shoreham !! censing pending the comp;ction of appellate review. SLQ Leperally Qamlina i
PowerMight_qo;(Shcaron Harris Nucicar Power Plant), ALAB-852,24 NRC 548 n. 75 (1986)(an operating license may be authorized before completion of the agency's inter-nal appellate process).
2.
Reception Cmtpis_Appea_}
The issues involving the adequacy of three reception centers proposed by LILCO I
for public use in th'e event of a radiological emergency were resolved entirely in LILCO's favor in the Partial Initial Decision on Sultability of Reception Centers, LBP-88-13, 27 NRC 509 f.1988). The intervenors have raised four' issues on appeal, but only a
j one of them is even arguably substantial: the question whether it is adequate, as FE51 A 1
and the NRC Staff maintain, to make detailed arrangements for monitoring 20 percent of the EPZ population. An additionalissue. which has not been properly ra! sed but was argued by the Intervenors in a letter to the Appeal Board and at oral argument,is a re-cent decision by a New York State court holding that one of the three of LILCO's re-ception centers violates local zoning laws. Town of Hempstead v. LonL!sla]dj.ighting d
1 go Index No. 23779/87 (N.Y. Sup. Ct. Aug. 22, 1988).
a As to the gravity of the substantive issues, the providing of reception centers for j
the public is important, though not as important as, for example, the size of the EPZ, evacuation time estimates, the means by which protective action recommendations are mado, or the means by which people without cars are to be evacuated from the EPZ.
1 1
However, the issues being raised by the Intervenors on appeal do not go to whether or not there are teception ecnters for the public at all but rather to whether more of them must be provided. Wh!!c the FE51 A guidance is that 20 percent of the EPZ popu-l
!ation should be planned for in deta!!, LILCO has in fact conservatively provide 1 re-l sources for approximately 46.6 percent. If the one of the three reception centers, the Bellmore facility, that is subject to the recent state court order is eliminated for the a
f
-r--
,--,-,--e
-~r,n---ew
,.n.
,o sake of argument LILCO still provides for 36 percent of the EPZ population -- more than half again what FEMA guidar.cc specifics.
Moreover, the evidonec in these proceedings shows that what is important in providing monitoring for the public is not so much that speelf te resourecs be dedicated in advance in great detail as that there be an organizational structure that can expand the plan ad Inq if necessary. NRC Staff Ex. 5 (Kantor direct testimony) at 3-5. Tr.
18,369,18,374-75 (Keller),16,357 (Husar),19,202-03,19,22'4 (Kantor),17,744 (Dreikorn),
17,48183 (Crocker), 17.485-86 (Donaldson).
LILCO has provided this, as the Board below found. In sheet, while the issue cannot be said to be trivial, neither is it as im-portant as many of the issues that have been resolved in this proceeding.
l As for the !!KcIlhood that the issue was resolved incorrectly below, the answer is j
that the evidence was quite one-sided in LILCO's f avor. Both FEMA and the NRC Staff, as well as LILCO, testified that the 20 percent guidance is appropriate. The 20 percent was supported on a variety of grounds: historical experience with real ace!-
l dents, both radio %gical and nonradiological; a probabilistic analysis done by an NRC Staff witness; the considerations that led to the developtrent of the relevant NUREG-0054 provisions; and the experience of emergency planners on how protective action recommendations are made. Perhaps most important, the 20 percent figure was sup-i ported by the judgment of expert emergency planners who judge that a 20 percent i
planning base provides a substantial basis on which larger efforts can be built pd (les if 1
neeessary, By contrast, the Intervenors supported their argument that the 20 percant guld-j ance is inadequate based on nothing more than (1) the State's witnesser belief about j
that FEM A required 100 percent (whleh telief is wrong) plus their opinion that 100 per-cent rather than 20 percent would be "prudent" and (2) opinion polis taken by Suffolk I
County, which have been re;eeted as a predictive tooi many times in this proceeding I
s
=. s
.y.
As with the other issues under discussion, the operation of the plant would not te at all prejudicial to the continuing appeals of the reception center issues.
As for other "public interest f actors" that might argue in f avor of postponing op-t eration, LlLCO knows of none.
D.
Issues DirefAy_Bqfore the Com_n)hsloD Two issues remain directly before the Commission itself:
the adequacy of LILCO's planning provisions concernir.g contaminated injured individuals (GU A RD issum and the questien of whether New York laws that allegedly prohlblt LILCO from imple-menting pertain emergency response functions are preempted by the Atomic Energy Act.23 The CommiAston need not decide the preemption question in order to autherMe issuance of a Shoreham operating license, in light of CLI-8613, tne Commission's new "realism rule." the Licensing Board's resolution of the realism issues in LILCO's favor, and the reversal of Cuomo v. LILCO. the case which once held that certain actions under a utilhy-only plan were illegal in New Ycrk State. The GU ARD issue is ripo for a Commluton ruling without remand or further prcccedings.
1.
Ereqmption Suf folk County emergency planning contentions 1-10 asserted generally that LIL,CO lacked the !cgal authority to implement certain functions called for in the LILCO Plan. LBP-8512,21 NRC 644 (1985). LILCO moved for summary disposition of these contentions on three grounds: federal law preemption of State and local laws purporting to prevent LILCO from developing and implementing emergency plans for 23/
On October 5. '483 LILCO will also petition the Commission for review of the Appest Board's Septeneer 20, 1983 decision in ALAB-900. In ALAB-900 the Appeal Board defined the necessary 3 cog of an initial full scale excrelse under 10 C.F.R. Part 50 Appendix E 5 IV.F.1 and af firmed the OL 5 Licensing Board's dectston that LILCOs 1986 exercise f ailed to meet the Commission's standards for suen an exercise. IP CO believes that the Appeal Board's dects.on contains errors that present important ques-tions of law and policy. However, while LILCO believes that the issues presented in that deelston may te important for other futre initial licensing exercises, the effee-tiveness of LBP-$$-24 need not await the Commission's resolution of them.
' 3 Shoreham; the "realism" argument, M, the State and local governments woilld respond in the event of an emergency, eliminating any "legal authority" problem; and the "im-materiality" argument, b, that NRC regulations do not require LILCO to provide for some of the functions at issue in Contentions 1-10. CLI-86-13,24 NRC 22 at 25 (1986).
The Licensing and Appeal Boards decided agair.st LILCO on all three arguments.
LBP-85-12, 21 NRC 644 (1985): A LAB-818, 22 NRC 651 (1985). The Commission took review and i ! versed the lower Boards on the realism and immateriality issues. CLI 13, 234 NRC 22 (1986). However, the Commission deferred ruling on the preemption question. Ld. at 24. In light of subsequent events, the Commission need not decide the preemption question in order to authorize a full power operating license for Shoreha.c The Commission's decision in CLI-80-13 adopting the realism theory, that theory's codi fication in 10 C.F.R. S 50.47(c)(1), and the Licensing Board's application of the rule in LILCO's f avor in LBP-88-24 have made preemption an unnecessary basis for Shoreham licensing. Hence, licensing should not be stayed pending the Commission's resolution of that issue.
2.
GUAR]
On February 25, 1987, the in:ervenors filed a motion asking the Commission 'o admit a new contention alleging that LILCO did not comply with FE51A Guidance Stem-orandLm 31S-1, concerning the provision of medical services for contaminated injurer individuals.
510 tion of Suffolk County, the State of New York and the Town of Southampton to Admit New Contention (Feb. 25, 1987). L1LCO and the Staff filed timely responses, urging the Commission to reject the croposed contention. I.!LCO's Opposition to Intervenors' Slotion to Admit a New Contention (51 arch 9,1987): NRC Staff Response in Opposition to 51otion to Admit a Ne conten*lon (Star.17,19' ().
The Commission never having ruled on Intervenors' motion. LILCO filed a paper re-newing its opposition to the motion, requesting the Commission to either dismiss the
g
.. proposed contention as moot or reject Intervenors' motion for failure to meet the Com-mission's requirements for reopening a closed record. LILCO's Renewed Opposition to Intervenors' Proposed Contention on Emergency Medical Services for Contaminated In-jured Individuals and Suggestion of Mootness (July 28,1988).
LILCO respectfully urges the Commission to reject Intervenors' motion and rule in LILCO's favor for the reasons stated in LILCO's July 28, 1988 paper. As recounted therein. FEMA has rated adequate all of the LILCO Plan provisions relating to the MS-1 requirements, and thus the contention which Intervenors' motion seeks to have admit-ted is moot. Moreover, Intervenors have made no effort to satisfy the Commission's re-quirements for reopening a record which has long since closed. :ntervenors' motion should therefore be denied outright.
In any case, Intervenors' motion does not present a sufficient basis on which to forestall Shorcham operation pending its resolution. The Commission's effectiveness decision need not await its consideration of this issue.
III. Conclusion The Licensing Board has resolved in LILCO's favor the last remaining emergency 9
planning obstacles to a full power operation license. None of the issues remaining be-fore the Commission warrant the imposition of a stay on the Licensing Board's license authorization in LBP-88-24. In addition, no public thterest consideration requires such a stay. For the reasons set forth above, LILCO respectfully urges the Commission to make that decision effective and, upon review of the Staff's findings pursuant to
a l
u e,
. 10 C.F.R. S 50.57(a), authorize the issuance of a full power operating license for the Shoreham Nuclear Power Station.
Respectfully submitted.
./YTnnZY j r
%'. Taylor Reveley,'!!!
Donald P. Irwin James N. Christman Scott D. Matchett Counsel for Long Island Lighting Company Hu'nton & Williams 707 East Main Street P.O. Box 1535 Richmond. Virginia 23212 (804)788-8200 DATED: October 3,1988 3
[
9 I
I
CERTIFICATE OF SERVICE t
LCLKEiQ in the Matter of L'
- C LONO ISLAND LICHTING COMPANY
($hordham Nuclear Power Station. Unit 1)
Docket No 50-322 OL
'88 WT -3 P8 :23 I hereby certify that copies of LILCO'S COMMENTS ON(T'RE'$ IMMEDIKTE EFFECTIVENESS OF LBP-38-24 were served this date upcn the folloWWg byllishd ~as in-dicated by an asterisk, by Federal Express as indicated by two asterisks, or tiy first-class mail, postage prepaid.
Lando W. Zech. Jr., Chairman
- Alan S. Rosentha! "
U.S. Nuclear Regulatory Commission One White Flint North Atomic Safety and L! censing 11t165 Rockville Pike Appeal Board Rockville, MD 20852 U.S. Nuclear Regulatory Commission East-West Towers. Fitth Floor 4350 East West Highway
.Commlasloner Thomas M. Roberts
- Sethesda, MD 20814 U.!! Nuclear Regulatory Commission one White Flint North 11fiS5 Rockville Pike Dr. W. Reed Johnson "
Rooxville MD 20852 Atomic Safety and Licensing Appeal Board Comm!.asioner Kenneth M. Carr
- U.S. Nuclear Regulatory Commlasion U.S. Nuclear Regulatory Commission 118 Falcon Drive Colthurst Onis White Fl!nt North Charlottesville, VA 22901 11555 Rockville Pike Rockville, MD 20852 Thomas S. Moore, Chairman **
Atomic Safety and Licensing Appeal Board Commissioner Kenneth C. Rogers *
- 5. Nuclear Regulatory Commlaston U.S. Nuclear Regulatory Commission One White Flint North
't West Towers, Fif th Ficor 11555 Rockville Pike s 'd ) East-West Highway k,.nesda, MD 20814 Rockville, MD 20887.
Howard A. Wilber "
William C. Parler, Esq. "
Ger. oral Counsel Atomic Safety sad L! censing Appeal Board U.5, Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission One White Flint North East Wast Towerd, Fitth Floor 115:15 Rockville Pike 4350 East-West Highway Rockville MD 20852 Bethesda, MD 20814 Christine N. Kohl, Chairman "
James P. Cleason, Chairman "
Atomic Safety and 1.ioonalng Atomic Safety and Licensing Appeal Board Board U.S. Nuclear Regulatory Commisalon U.S. Nuclear Replatory Commlaston East-West Towers. Fif th Floor 513 Gilmours Demve 4350 East West Highway Betheads, MD 20814
$11ver Spring, MD 20901 8 e
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Dr. Jerry R. Kline **
Edwin J. Reis. Esq. **
A;omio safety and Licensing (1.5. Nuclear Regulatory Commission Ilcard One White Flint North U.S. Nuclear Regulatory Com.nission 11555 Rockville Pike Etst-West Towers Rockville, MD 20852 4350 East-Wert Hwy.
Bethesda, MD 20814 Lawrence Coe Lanpher, Esq. "
Marla J. Letsche, Esq.
Mt'. F rederick J. Shon "
Xirkpatrick & Lockhart Atomic Safety and Licensing South Lobby - 9th Floor Board 1800 M Street, N.W.
U.S. Nuclear Regulatory Commission Washington, DC 20038 5891 East West Towers 4350 East West Hwy.
Fabian G. Palomino, Esq. "
Bethesda MD 20814 Richard J. Zahnleuter Esq.
Special Counsel to the Governor John H. Frye, HI, Chairman **
Executive Chamber Atomic Safety and Lloensing Room 229 Soard State Capitol U.S. Nuclear Regulatory Commission Albany, New York 122N East-West Towers 4130 East-West Hwy.
Alfred L. Nardelli, Esq.
Bethesda, MD 20814 Assistant Attorney Get al 120 Broadway Dr. Oaoar H. Paris **
Room 3-118 Atomic Safety and Licensing New York, New York 10271 Board U.S. Nuclear Regulatory Commisrion Cecrge W. Watson, Ea.it-West Towers William R. Cumming, 4W50 East-West Hwy.
Federal Emergency Management Bethesda, MD 20814 Agency 500 C Street, S.W., Room 840 Secretary of the commission
- Washington, DC 20472 At;ention Docketing and Service Wtion Mr Philip Mo!ntire U.S. Nuclear Regulatory Commission Ferloral Emergency Management One White Flint North Agency 11$55 Rockville Pike 26 rederal Plaza Rockv1119 MD 20882 New York, New York 10278 At mic Safety and Lleenalng Mr. Jay Dunkleberger Appea! Board Panel New York State Energy Office U.S. Nuclear Regulatory Commission Agency Building 2 Waahington, DC 20888 Empire State Plaaa Albany, New York 12223 Adjudicatory File j
Atomic Safety and Licenalng Stephen 5. Latham, Esq. **
Board Panel Docket Twomey, Latham & Shen U.S. Neolear Regulatory Commission 33 West Second Street Washington, DC 20585 P.O. Sox 298 Riverhead, New York 11901 l
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-,.o Jonathan D. Feinberg, Esq.
E. Thomas Boyle, Esq.
New York State Department of Suffolk County Attorney Public Servloe, Staff Counsel Building 158 North County Complex Three Rockefeller Plaza Veterans Memorial Highway Albany. New York 12223 Hauppauge. New York 11788 Ms. Nora Bredes Dr. Monroe Schneider Executive Coordinator North Shore Committee Shareham O pponents' Coalition P.O. Box 231 195 East Ma:,n Street Wading River, NY 11792 Smithtown, New York 11787 Uvatn A. Davis, Esq.
Counsel to the Governor Executive Chamber State Capitol Albany, New York 12224 WD. MM Sooit D. Matchett Hunton & Williams 707 East Main Street P.O. Box 1835 Richmond, Virginia 28212 DATED: October 3,1988 e
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