ML20196B388

Lilco Motion for Leave to File Summary Deposition Motion on Emergency Broadcast Sys (Ebs) Issue.* Board Should Dismiss Ebs Contentions & Accept Util Summary Disposition Motion & Rule in Favor of Lilco

ML20196B388
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	06/20/1988
From:	Matchett S HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20196B391	List: ML20196B388 ML20196B419
References
CON-#288-6604 OL-3, NUDOCS 8806300264
Download: ML20196B388 (6)

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I,50CKiia4G 4 ,K, P.RW Before the Ahmic Safety and Licensing Board In the Matter of )

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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

LILCO'S MOTION FOR LEAVE TO FILE

SUMMARY

DISPOSITION MOTION ON THE EBS ISSUE Pursuant to the Board's May 26, 1988 bench ruling (Tr. 20,429)1/ LILCO is filing this motion concerning how the reopened EBS issue should proceed. The only admitted EBS contention concerns coverage of the EPZ by the WPLR-bascd system relied upon in Rev. 9 of the LILCO Plan. In Rev.10 of the Plan, LILCO relles upon the State EBS for the Nassau-Suffolk Counties Operational Area, triggered by WCBS; this system aludes about 30 AM and FM stations whose coverage blankets Long Island, including WALK, which was the subject of prior proceedings on this matter. It is LILCO's position that, due to the LILCO Plan's (Rev.10) reliance on the WCBS-triggered State EBS, further proceedings on the admitted EBS coverage issue are unnecessary. In addition, since the coverage of the State EBS has already been established and the Board has ruled in 1/ During the May 26 hearing, the Board set a 10 day period for further discovery on Revision 10 to LILCO's emergency plan, which set forth LILCO's dacision to rely in the first instance on the official WCBS-triggered New York State EBS instead of on the WPLR-triggered local Shoreham EBS to broadcast emergency information during a Shoreham emergency. Tr. 20,429 (Judge Gleason). The Board also ordered the parties to file, within five days of the close of discovery, a "motion or paper from the parties as to how they want to proceed or if they went to proceed with respect to the (EBS) issue . . ." % By agreement of the parties, the respective time periods were postponed a week; the additional discovery sought by the Intervenors (the deposition of LILCO witness Douglas M. Crocker) was completeo on June 13 and the present paper is being filed on June 20, 8806300264 0D0620 PDR ADOCK 05000 22

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.c LILCO's favor on the realism (best efforts) contentions, no material issue of fact re-mains to be tried on the EBS lasue. Accordingly, LILCO requests that the Board accept

.LILCO's summary disposition motion,E which accompanies this motion, and resolve the EBS matter in LILCO's f avor.M I. Background The reopened phase of the EBS proceeding began when LILCO moved for summa- '

ry disposition of the WALK Radio issue. See LILCO's Motion for Summary Disposition of the WALK Radio Issue (Nov. 6,1987). That motion reflected LILCO's reliance on an agreement-based local EBS network consisting of 10 AM and FM radio stations on Long

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Island and in Connecticut, anchored by WPLR-FM in New Haven, Connecticut. See ida at 5-6, LILCO also relied upon WPLR to activate the tone alert radios that LILCO has provided to schools, special f aellities, and large employers. M. at 6.

2/ LILCO recognizes that in an earlier ruling on the legal authority contentions the Board prohibited the filing of additional motions for summary disposition. See Con-firmatory Memorandum and Order (Ruling on LILCO's Motions for Summary Disposition of Contentions 1, 2, 4, 5, 6, 7, 8 and 10, and Board Guidance on Issues for Litigation),

Feb.29,1988. The Board stated that it wanted "to bring the remaining issues to a hear-  ;

ing" and "get them resolved at our level of adjudication as promptly as we can do so."

Tr.19,284 (Judge Gleason). The present motion, however, is now appropriate. Whereas  !

previously there was an outstanding issue of fact on which the Board decided to proceed with a hearing, LILCO submits that all litigable fact issues have been resolved. Now, i the EBS issues can be resolved promptly without further hearirgs. LILCO urges the Board to accept the motion and summarily resolve the EBS matter in LILCO's favor.

F In its Briefing Paper, filed by telecopier today, the Staff apparently overlooks '

the litigation history of the EBS issue and recent events in the realism proceeding. Al-though agreeing with LILCO that litigation on the WPLR coverage issue should not pro-l coed, the Staff suggests that the Intervenors should be given the opportunity to file new contentions concerning WCBS. _Se_ e NRC Staff Briefing Paper on the Emergency Broad-casting System Issue (June 20,1988) at 2,3. This suggestion ignores the fact that the coverage of the State EBS is a long-settled issue, and that the Board has ruled in LILCO's favor on the realism contentions, including Contention 5, which concerns EBS matters. Thus, LILCO's shif t of reliance from WPLR to WCBS is not "similar to its prior replacement of WALK with WPLR." See id at 2. It is instead a shif t to an EBS system whose capabilities and adequacy have already been established. Thus, the Intervenors should not be given anotbir chance to f!!e new contentions, because there are no out-standing fact issues open to challenge.

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., 3-The Board denied LILCO's Motion on December 21, 1987, ordering further pro-ceedings on the WPLR-based Shoreham EBS. Memorandum and Order (Ruling on Appil-cant's Motion of November 6 '4987 for Summary Disposition of the WALK Radio Issue),

Dec.21,1987. The Intervenors filed contentions on January 12,1988, and the Board ad-mitted only those contentions alleging the inadequacy of the Shoreham EBS' broadcast coverage within the 10 mile EPZ. Memorandum and Order (Board Ruling on Conten-tions Relating to LILCO's Emergency Broadcast System), Feb. 24, 1988. Af ter a period of discovery on this issue, Intervenors and LILCO filed their direct testimony on April 13,1988.

Since the filing of direct testimony, the circumstances regarding LILCO's EBS plans have changed. As reported to the Board by LILCO counsel in letters dated May 9, May 16, and May 25, political and public pressure brought to bear on WPLR has forced that station and LILCO to reappraise WPLR's role in LILCO's plans for disseminating in-formation during a Shoreham emergency. In Rev.10 of the LILCO Plan, WPLR is still included as part of a local EBS that could be activated as a backup measure. But LILCO would seek to enlist WPLR's services only as a last resort.

The LILCO Plan (Rev.10) now reiles oc the official New York State EBS for eastern New York to broadcast EBS messages. LILCO also relles on the State EBS to activate tone alert radios. The State EBS is triggered by WCBS in New York City, and includes 30 Long Island radio stations that, together, provide coverage to the full 10-mile Shoreham EPZ. In fact, the system includes radio station WALK, the former flag-ship station in the local Shoreham EBS, and all the other stations that were members of the local EBS that was litigated and found acceptable by the Board. In the event of a radiological emergency at Shoreham, LERO would rely on the "best efforts" of the State and County to activate this official State system. Even if "best efforts" f ailed - a proposition unsupported by law or f act, but in any case not now in issue - LILCO could

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activate the WC3S-based system by contacting WCBS directly. There is, therefore, no need to rely upon the WPLR-based system to rule that the EBS in the LILCO Plan satisfies NRC licensing requirements.

II. Argument In LILCO's view, there is no point in proceeding with litigation on the coverage of the WPLR-based EBS. LILCO's plan includes the WPLR network as a backup, to be activated only if LILCO, aided by the "best efforts" of New York State and Suffolk County, cannot activate the official State EBS for the Long Island area. The Commis-sion, in its new rule and in CLI-86-13, and this Board, in its rulings on the "legal author-ity" contentions, have established a presumption that such a "best efforts" government response would be forthcoming and that it would generally follow the LILCO Plan. The Board has also announced that it will dismiss the "realism" contentions, including Con-tention 5 regarding, inter alia, activation of the EBS. Further, even if "best efforts" f ailed - a proposition already refuted by the Commission's and Board's ruling - LILCO could activate the WCBS-based EBS by contacting WCBS directly, pursuant to FCC rules. Thus, it is not necessary to rule on the adequacy of the WPLR-based EBS net-work.

LILCO believes that the EBS issues are now ripe for summary resolution, for the following reasons:

1. The only admitted EBS issue - the adequacy of EBS coverage within the 10-mile EPZ - is no longer an issue as to which f acts are in dispute. LILCO now relles on the State EBS instead of the WPLR-triggered local EBS to broadcast EBS mecsages and activate tone alert radios. The coverage of the State EBS is beyond cavil.

2. No outstanding contention challenges the adequacy of the WCBS-triggered State EBS.

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3. Intervenors cannot frame an admissible contention concerning LILCO's re-11ance on the State EBS, for two reasons:

First, the coverage of the State EBS is beyond question. The system includes WALK Radio and all of the other stations that were in the previous local Shoreham EBS that the Board found acceptable. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-85-12,21 NRC 644 at 764 (1985). Moreover, the adequacy of the State EBS' coverage of the 10-mile EPZ around Shorchnm was deemed admitted by the Intervenors in the legal authority proceeding. S_ee_ Long Island Lighting Lighting Co.

(Shoreham Nuclear Power Station, Unit 1), LBP-87-26, 26 NRC 201 (1987). Yinally, LILCO is providing with its summary disposition motion a sworn affidavit frort Cohen and Dippell, P.C., affirming that WCBS itself provides full coverage to the Shoreham EPZ.

Second, the only potentially litigable issues concerning the State EBS are interface issues, M, those issues within realism Contention 5. The Board has now ruled that it will dismiss that contention, as well as the other "best efforts" contentions, as a sanction for the Intervenors' refusal to obey the Board's discovery orders. Accordingly, any best efforts-related EBS issues must also be resolved in LILCO's favor.

Thus, LILCO's motion shows, with supporting affidavits where appropriate, that (1) there is no litigable coverage issue concerning the State EBS (2) there is no litigable issue concerning tone alert radios, because LILCO will recrystallize or replace them so they can be activated by WCBS and WALK; and (3) the only conceivable issues concern-ing LILCO's reliance on the State EBS are best-efforts issues, which Intervenors are now precluded from ralsfng.

III. Conclusion It is unnecessary to continue with further proceedings concerning the coverage of the EBS, because that matter is no longer at issue. For the reasons set forth above,

c the Board should dismiss the admitted EBS contentions. Further, the Board should ac-cept LILCO's summary disposition motion and rule in LILCO's favor on the adequacy of its crrangements for notifying the public during an emergency at Shoreham, Respectfully submitted, W

Dohald P. Irwin'

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K. Dennis Sisk Scott D. Matchett Counsel for Long Island Lighting Company Hunton & WLllams 707 East Mair. Street P.O. Box 1535 Richmond, Viriginia 23212 DATED: June 20,1988 l

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