ML20196D220

NRC Staff Response to Lilco Motion for Summary Disposition of Contentions 5 & 6 (Making Decision & Telling Public).* Summary of Disposition of Contentions Should Be Granted

ML20196D220
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	02/10/1988
From:	Johnson G NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20196D196	List: ML20196D194 ML20196D220 ML20196D272 ML20196D319 ML20196D323
References
CLI-86-13, OL-3, NUDOCS 8802170054
Download: ML20196D220 (8)

Text

FEB 101988 o-

' 00CMUE0 USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ION

• CFrtCE Of $ECEfur v BEFORE THE ATOMIC SAFETY AND LICENSING BOARG0CKEimG e, sEnvici, ort.NCe in the Matter of )

)

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

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

NRC STAFF RESPONSE TO LlLCO MOTION FOR

SUMMARY

DISPOSITION OF CONTENTIONS 5 AND 6 (MAKINC DECISIONS AND TELLING Tile PUBLIC)

1. INTRODUCTION LILCO's Motion for Summary Disposition of Contentions 5 and 6 (Makina Decisions and Telling the Public) ("Motion"), contends that, given the presumption that, in the event of an actual emergency at '

Shoreham, State and County officials would respond on a best efforts basis using the LILCO Plan , the existing evidentiary record supports ,

1 disposition of these contentions in LILCO's favor. Contention 5 alleges that since LILCO lacks legal authority to activate the emergency siren system or to direct the broadcast of emergency messages over the .

emergency broadcast system ("EBS"), this element of the LILCO Plan cannot be implemented. Contention 6 asserts, similarly, that since LILCO is prohibited from making decisions and official recommendations to the public as to the appropriate protective actions in the event of en accident at Shoreham, that this aspect of the LlLCO Plan also cannot be implemented,

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The "best efforts" principle enunciated in CLl-86-13 and codl9ed in 10 C.F.R. Section 50.47(c)(1)(lii) essentially renders moot LILCO's lack of legal authority to activate the prompt notification system and to trake 1

protective action recommendations to the pubtle. Both CLI-86-13 and the new rule, however, raise factual issues about whether the . utility-only plan, Iraplemented on a best efforts basis by the State and County wnuld in fact provide rcesonable assurance that aciequate protective rneasures can and will be tal en in the event of a radiclogical ernergency at Shorebem, in CLI-86-13, the Corrmisslun called for trore information on the ferr,illarity o' State and County officiale with the the LILCO Plan and the 4

extent of delays in ciecisionmaking and recommendations to the public caused by a best efforts response. O 24 NRC at 31. Similarly, the new Section 50.47(c)(1)(Ill) conterrplates a case-by-case evaluation of the "corrpensatory measures" incorporated into the utl!!ty-only plan to deal

. with the participation of State and local authorities whom it is presumed will use their best effcrts to implement a utility plan which they have rot planned to execute, i in its September 17, 19P7 Mernorandum and Order rejecting LILCO's previous omnibus motion for summary disposition, the Licensing Board expressed ur. certainty as to "whether, when and of by whom the sirens would be activated" (id, at 30) and "What EPS system will he used? How and at whose direction will it be activated? What messages will it 1/

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The Commission instructed the Licensing Edoard to "use the existing evidentiary record to the maximum extent possible, but ... (to]

tel.e acioitional evidence where necessary." ?u NP.C at 32.

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,- broadcast ?" M. at 31. In -addition, the Board expressed doubt about who would be in charge of the emergency response and who would decide when pt otective actions were required. M.at33.

As sliown below , the existing record in this proceeding -

prior Board decislens, the LlLCO Aan, Admitted Fbets, and the presumption thr:t it is the. LILCO plan which the State end County will attempt to implement -

answer the questions posed by the Commission- and the Licensing Board. While issues rnay remain concerning the transmission of FRS tressages (see Mersorandure and Order, dated Decerrber 21,1987) and the clarity of EPS rressage, (Initial Decision, L G P-8 8-2, February 1, 1cFB), there issues de not relate tn the need for "compensating measuret" to deal with lacl: of State and local planning. As a result, no genuine issues of material fact e>:Ist, and summary disposition of contentions 5 and 6 can be granted.

11 DIS CUSSI,0N The adequacy of LILCO's Prortpt Notification System - that is, the plan for activating the emergency sirens ord EBS broadcasts to the public

- F t f, already been the subject of litigation in other phases of this proceeding, and is not properly raised under contentions 5 cod 6. U See LBP 82-73, 16 NRC 974, 1021, 1026; LBP-82-115,16 NPC 1923; and LBP-63-57, 18 NRC 445, at 623. The Board has acknowledged that the existence and operability of the strens are not challer.ged. Septer,ber 17, 2/

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As noted above, certain aspects of the EBS systen erd tressages, not essertiel to the issues raised under contentions 5 and 6, are still open, i

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.. 1907 Mernorandum and Order at 30. The existence of a communication network necessary for linking Suffolk County decisionrrakers with the Shorebarn plant and the LERO organization is also established. Acfmitted Facts P. 10, 11, 13. See Memorandum and Order,- dated December 1, 1907, at 4. Suffolk County has a communications rietwork linking the County Executive, the Depcrtment of Emergency Preparedness (now the County Department of Fire, Rescue and Emergency Services (DFRES)),

and the Suffolk County Police Department. Admitted Facts 3-5. The Suffolk County police warning point at Yaphank, DFRES, and the State Pac'ictogicel Emergency Preparedness Group all have commercial phones, providing this treans of corrmunication as well. Admitted Fact 11. Both DFRES and the Su f folk County police can be contacted on an around-the-clock bcsis. Motion, Attachment 1, Fact 10. Finally, the already reviewed and approved LILCO Plan for pron pt notification provides for the LFRO Director of Local Response to provide State or C7unty officials with whatever inferrhation and assistance is appropriate if

, they v<ill be assuming command and control of the emergency response.

OPIP 3.1.1, Attach.1, at 12 of 12. In such circumstances the Director of Local Responst is to promptly contact the County Executive and rce,uest that be participcte in the emergency response in accordance with Article 2D of New York State Exocutive Law. OPIP 3.1.1, Attach. 9, at 3 of 3. The plan also provices that the rek of inferrration be coordinated with the Suffolk Ccunty Executive .. his designee, if he participates in decisionrnakinq. Plan at 3.8-4 Thus, the infrastructure for timely notification of local authorities of an accident at Shoreham is established on the record.

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5-I The presumption of a best efforts response following the LILCO Plan ct.n only reean that where the mecns of activation of the sirens and EBS are available to local authorities, that they will use their best efforts to use that system, in the absence of another adequate and feasible system .

which has been timely shown to be relied upon for this purpose. Section 50.47(c)(1)(lii). Thus the questions of who will decicle to sound the sirens, and what system will be used are answered by the above facts and the r(gelatory presumptiori.

The cuestion remains whether, in using the LILCO Plan to activate the prompt netification system, there will be delay, occasioned by lack of famillarity with the plan, or a cumberseme decisionmakirg process in  !

deterrlining whether to sound the strens or to bro &dcast a protective action recoremendation. Where necessary. 10 C.F.R. Part 50, Appendix E, Section D, establishes a "design objective" of essentially complete  !

F notification of the public withir 15 rrinutes of notification of State and i local authorities, where urgent action is indicated. Thus, the question is v>hether, once the Suffolk Ceunty Executive is on the line, is there a i

reasonabit. expectation that a prompt decision on activation and protective action recommendation can be reached. .

On this question, LILCO has relied upon Pevision 9 of hs Plan to detail the procedures for contacting and briefing the Suffolk County Executive. See Motion at 13 et,t seq. Review of these plan changes is l

pending with FEMA and the Staff.

However, it is riready established that licensees have "primary [

responsibility for accident assessment, including the evaluation of

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L J potential risk to the public health and safety and the preparation of  ;

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. e etommendations concerning protective measures." A LA B-It47, 24 NRC 412, at 427 (10P6). See also Admitted Fact . 44. Certalnfy a planned response .- of the. licensee to provide these assessments and

• recomrrendations would be preferrec' by State and local officials, rather than on ad hoc alternative. See 52 Fed. Reg. 42005. During an emergency, the lict:nsee is the only reflabic source of informatico on plant conditicns, and it is .these conditions which, under the LILCO Plan, ero a principal source of projected offsite consequences in the initial phases of an accident. OPIP 3.6.1. See also LILCO Testimony on Contention EX 36  ;

(Wind Shif t), (f. Tr. 2364, at 5-7, cited M the OL-5 initial Decision, LBP-06-2, at 112. Thus, if the County Executive is presumed to respond on a best efforts basis using the Information and options made available to I hin by the licensee pursuant to the licensec ,onsite as well as offsite f

plans, he will decide to activete the prornpt notifientlen system, if the I licenste states that the risk to the public so indicates. Moreover, since the licensee plan establishes responses based on emergency action . levels  ;

and plant-derivett accident projections, there is little doubt that a best efforts cction by the County Executive would be to follow the LE P.0/ t.!!.CO recommendaticns for protective action. M Provided the i infor ruation is made availabic in a timely manner, there is no basis for anticipatire delav in decisionn aking for lenger than that required to brief r 3/

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The Intervenors nowh(re clain thot they would not activate the i strens when LlLCO forwards such a recommendation, indeed, in [

vic v cf their professed duty to protect the pubile they cannot claim '

they would net do so.

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k the official. This situation is no different from that which might happen were there to have t'een County participation in planning.  ;

it would be inconsistent with the best efforts principle to argue that i given the availability of the information needed for protective action decisicnt, given procedures and infrastructure for activation, and given a system for airing messages over the EDS, intervenors would not utilize these rescurces in a prompt fashion.

As.a result, the questions as to what EBS system will be used, what messages would be broadcast, who would make the decisions on protective ,

4 action r ecommendations, what criteria would be used and whether such  !

decisions would be time.ly made do not require further evidentiary l t

incuiry. The lack of legal authority and the requirement for adequate comper.tatory measures in the LlLCO Plan therefore do not stand in the way of summary disposition. There are no genuine issues of material fact, as those issues are defined by the Board and the Commission, SI i

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Ac noted above, howcver, although summary disposition of conten- [

tions 5 and 6 is eppropriate, other open issues relating to the i adequacy of the emergency broadcast system prevent a finding of i reasonable assurtnce that adequate protective measures can and will f be taken in the event of an emergen9y. See Memorandum and ,

1 Order, December 21, 1987, and Iritlal Tiecision, LB P-6 8-2,  !

February 1,19BP, at 170-171, 252.  ;

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3 111. CONCLUSION f

Summary disposittori (,f contentions 5 and 6 shoulcf he granted.

Res tfully subtritted, r,ie E Johp on he Counsel or N@ Staff  ;

Dated at Rockville, Marylend tbl!.10th day of February,1900  :

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