ML20196D313
| ML20196D313 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 02/11/1988 |
| From: | Reis E NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#188-5593 OL-3, NUDOCS 8802170071 | |
| Download: ML20196D313 (11) | |
Text
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'88 FEB 12 P3 51 L
j BEFORE THE ATOMIC SAFETY AND LICENSING _ BOARD crrter c; rarc: ara 00CKCi m a t."c:t r' l
(M N A j
in the Matter of
)
1
)
l LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-3
)
(Emergency Planning)
(Shoreham Nuclear Power Station,
)
. I.
Unit 1)
)
o u
NRC STAFF RESPONSE TO LILCO'S MOTION IN LIMINE AND MOTION TO SET A SCHEDULE t
INTRODilCTION f
l On January 25, 1988 LILCO filed a motion requesting the Board to limit the scope of the remanded issue concerning "role conflict" for school i
bus drivers.
LlLCO asks the Board to rule that three issues regarding (1) the availability of buses for school children, (2) Identification of I
reception centers for school children, and (3) evacuation time estimates for this special population, are not subject to litigation in connection with 1
this remand of the "role conflict" issue because they have already been decided in the PID and therefore they are outside the Board's jurisdiction.
I LILCO also requested the Board to set a schedule for further l
proceedings.
For the reasons stated below, LILCO's motion for an order in ilmine I
should be granted.
However, setting a schedule for hearing should l
follow responses to the Board's Order of February 8,1988, on l
scheduling.
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i BACKGROUND l';.
In the original PlD on emergency planning the Licensing Board found i
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that while some "role conflict" may occur for individuals responding to a Shoreham emergency, a sufficient number of Individuals will perform their duties in a timely fashion, t.ong Island Lighting _ Company (Shoreham tf Nuclear Power Station, Unit 11, LBP-85-12, 21 NRC at 679 (1985).
The l
Board's finding in this regard was appealed by intervenors, with regard to two categories of non-LERO Individuals: teachers and school bus 4
drivers.
Long Island Lighting Company (Shoreham Nuclear Power i
Station, Unit 1), ALAB-832, 23 NRC 135, 152-54 (1986).
The Appeal Doard determined that role conflict would not pose a significant problem 3
with regard to the teachers, but remanded the issue as to school bus drivers stating:
On the record now before us, we similarly cannot make a finding that a sufficient number of school bus drivers can be relied upon to perform their duties if an accident occurred at r
Shoreham.
Therefore, we are remanding this matter to the Licensing Board for further exploration.
All parties will be free to adduce additional evidence on the issue: at minimum, the Licensing Board is to accept the testimony related to the survey of volunteer firemen.
Upon review of the evidence presented at the reopened hearing, the Licensing Board should reconsider its prior findings and conclusions regarding the potential for role conflict among school bus drivers.
Id at 154.
LlLCO subsequently flied a motion for summary disposition on this remanded issue, which included arrangements to utilize and train LERO workers to drive buses to evacuate school children, and in rejecting LILCO's motion the Licensing Board observed:
...the submittal of the auxiliary bus driver arrangement does t
not require consideration of new contentions.
The basic issue to be explored by the Board is whether, in light of the l
potential for role conflict, a sufficient number of school bus
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f drivers can be relled upon to perform emergency evacuation F
duties.
To assure an adequate number of drivers, LILCO has developed its new proposal for auxil8ary drivers.
It will suffice for our purposes that an opportunity to confront this plan be i
provided and a period for discovery on the plan's dimensions be
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au thoriz ed. "
f Memorandum & Order (Ruling on App!! cant's Motion of October 22, 1987 4
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for Summary D8sposition of Contention 25.C Role Conflict of School Bus Drivers), December.0,1987 at 5.
With regard a LILCO's reference to the arrangements it was pursuing for %;oring an adequate number of buses for a single wave
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evacuation, the Board further stated that "If Applicant desires to address l
t that arrangement in the context of the current proceeding, we believe it should be permitted to do so...".
& at 6.
ARCUMENT f
1.
ISSUES INVOLVING THE AVAILABILITY OF BUSES, RECEPTION 4
CENTERS, AND EVACUATION TlVE ESTIMATES ARE NOT WITHIN I
THE JURISDICTION OF THIS BOARD WHICH MAY ONLY CONSIDER
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THE ROLE CONFLICT ISSUES REMANDED TO IT I
A Licensing Board has limited jurisdiction in a remanded proceeding and may only consider what has been remanded to it.
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Philadelphia, Electric Co. (Limerick Generating Station, Units 1 and 2),
i A LAD-857, 25 NRC 7,11,12 (1987); Carolina Power and Light Company (Shearon Harris Nuclear Power Plant, Units 1-4), ALAB-526, 9 NRC 122
[
(1975).
When a Licensing Board issues a decision in which it disposes of t
a particular Inue on the merits and an appeal from that decision is filed, the Licensing Board no longer has jurisdiction to act further with regard i
l
.l to that issue.
Georgia Power Co., et al., (Vogtle Electric Generating Pla nts,
Units 1
and 2),
A LA D-859, 25 NRC 23, 27 (1987);
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3.
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Metropolitan Edison Co. (Three Mlle Island Nuclear Station, Unit No. 1),
7 ALAB-699,16 NRC 1324,1327 (1982).
When an issue is remanded upon 7'
. il appeal, the Licensing Board may only consider the remanded issue.
Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units -2 and 3), ALAB-389, 5 NRC 727, -(1977).
If a remand order pertains to a
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specific matters, the Licensing Board may not broaden the scope of the i
1 remand to allow the litigation of other matters.
Virginia Electric and i
Power Co. (North Anna Nuclear Power Station, Units 1 and 2) ( AL.3-551, 9 l
NRC 704, 700 (1979).
i l
in regard to evacuation planning for school children, the Appeal t
Board remanded only the issue of "role conflict" with regard to school c
bus drivers.
23 NRC at 154.
Issues involving the availability of school buses, the location of reception centers and tirne estimates for travel to reception centers for school children were not' remanded by the Appeal Board.
23 NRC at 162 at 18.
Matters involving the availabil);y of buses, I
the location of reception centers and - t!me, estimates for travel to i
part of the role conflict issue in this j
reception centers wt -
proceeding, and v,tre
- raised by any party on appea!
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"Role conflict" concerns ide' possibility that Individuals wi!!
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experience a conflict between the discharge of their emergency
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p duties and the fulfillment of perceived family obligations and J
consequently, many of them will not promptly carry out their specific l
responsibilities.
23 NRC 13'5, 150.
The Appeal Board specifically B
noted that role conflict was not an issue as to members of the Local l
Emergency Response Organization. ' 23 NRC 135, 153 n.
64, in l
addition, matters such as thobilization, ' training and command and control with respect to LERO workers were fully litigated below and K
these findings were not disturbed on appeal.
21 NRC 644, 707-756.
1 Consequently, they are not matters open for hearing under the L
rubric of "role conflict."
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in Limerick the Appeal Board recently confronted a very similar l
Issue concerning the scope of a remanded hearing on the possible "ro!e h
conflict" of school bus drivers.
The Appeal Board stated that "the
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j additional proceedingt before the Licensing Board were to focus solely on the number of school bus drivers willing and available to serve the two districts involved; the overall logistics of driver mobilization was not t
I intended to be at issue." ALAB-857, 25 NRC at 11.
It emphasized that upon remand the Licensing Board was not to consider other matters such as the logistics of driver mobilization or the availabliity of school buses, but only the "narrowly circumscribed" remanded issue of the possible L
"rolc conflict" of school bus drivers.
Id.
The issues regarding letters of agreement and the availability of buses, reception centers for school children, and of time estimates to travel to reception centers for this special population are beyond the remanded school bus driver "role conflict" issue and are outside the jurisdiction of the Board.
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f II.
MATTERS FOR CONFIRMATION BY THE STAFF DO NOT EXPAND THE SCOPE OF ISSUES UPON REMAND i
j The issues concerning contracts for buses, identification of reception f
and evacuation time estimates that LILCO seeks to eliminate from this proceeding were identified by the Board as "defects (which] can be remedied and such corrections should be in place by the time the plant commences operations".
Long Island Lighting Company (Shoreham Nuclear
)
Power Station, Unit 1), LB P-85-31, 22 NRC 410, 429 (1985); see also I
LBP-85-21, 21 NRC 644, 872-74 (1985).
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The commission has recognized that emergency planning is an evolutionary process.
Consolidated Edison Co. et al., (indian Point Units 2 6 3), CLl-83-16, 17 NRC 1006, 1014 (1983).
This fact is reflected in I
i the determination that findings on emergency planning are predictive in I
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nature.
Pacific Gas and Electric Company (Diablo Canyon Nuclear Power
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Plant, Units 1 and 2), ALAR-781, 20 NRC 819, 834-35; 21 NRC 644, 653.
Iy The continued revision of an energency plan does not make the plan I
j wholly "new," rather it is part of this evolutionary process that should
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continue through the life of a plant. Id.
Changes and refinements in emergency plans might be left to Staff review and confirmation.
Louisiana Light & Power Co.
(Waterford Steam Electric
- Station, Unit No.3), ALAB-732, 17 NRC 1076,1103-04 (1983); Philadelphia Electric Co.
(Limerick Generating Station, Units 1 and 2), ALAB-836, 23 NRC 479, 495 (1986).
The matters concerning modification of the contracts for buses j
may be left for Staff review and confirmation.
The number of buses is not in dispute.
See id. at 825, 872.
The only issue is whether there exist contracts or letters of agreement from bus companies outside the EPZ that will release buses to LILCO not subject to any prior commitment.
Confirmation that such letters of j
agreement are incorporated into the Plan is a ministerial act that can be left to the staff.
See, Waterford, supra; Limerick, supra, issue concerning the identification of reception conters for school
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children and the travel time to these reception centers are now moot.
l Identification of reception centers for school children was only a material issue when individual buses were required to make more than one trip, j
and the time estimates for this special population were dependent on how I
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- long the first round trip took. 2,/
Since the plan now calls for single j
wave evacuation, identification of reception centers and travel time to
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those centers are no longer germane and need not be examined.
Under the current plan school buses do not have to return to the EPZ and the only relevant concern is the time to evacuate the 10 mile EPZ, 7
not the time to actually reach the reception centers.
See generally, 26 f
NRC
, CLl-87-12 (November 5, 1987).
Issues concerning the location of reception centers and travel times to those centers are no longer germane and there is no reason for discovery on those matters, i
Discovery should not be permitted on issues involving contracts for school buses, the location of reception centers for school children and the travel time to those centers, as the first matter is a ministerial matter best left for Staff confirmation and the last two are no longer germane to this proceeding.
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The possible option to evacuate school children in a single wave, L}
rather than in multiple waves, was aired below and discussed by the l
Board.
See, 21 NRC 644. 872-874.
Further, using LERO drivers as j
drivers for some schools was also raised below. Cordaro, et al. ff.
Tr. 9154 at 60-61.
See also, 23 NRC 135 at 152. Thus, the current LERO plan to evacuate school children in a single wave is not wholly l
new, but is a fuller development of one option for school emergency planning.
The concern expressed by the Board in this connection was that there was no evidence that buses c.;mmitted to other uses would be released to LILCO in the event of an emergency at Shoreham.
However, the Board stated that this deficiency could be j
corrected by securing contracts for buses that were not subject to i,
1 prior commitments, thus eliminating the need for multiple bus runs.
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See, 21 NRC 644, 874.
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If the Intervenors believe any changes in the plan, such as single wave evacuation of school children, offer less protection and are so
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fundamental as to be a predicate to reopen the record, their remedy 1
is available under 10 C.F.R. 5 2.734.
See 22 NRC 410, 413-14 i
j (FOOTNOTE CONTINUED ON NEXT PAGE) 4 l
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t e-h 111. ALL PENDING EP ISSUES SHOULD BE
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SCHEDULED IN A SINGLE HEARING i
SCHEDULE
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LILCO has also proposed a schedule for filing testimony and beginning hearings on the issue of role conflict.
Discovery has been h
extended to February 19.
Confirmatory Memorandum and Order (Govern-f ments' Motion for Extension of Discovery on Role Conflict of Bus Driver issue), February 1,1988.
LlLCO's schedule suggests Testimony could be filed two weeks later (March 7), and allowing two weeks for motions to strike and answers thereto, hearing could begin on March 21, 1987.
However, the Board may want to consider all the remanded issues (EBS system [if any contention is admitted), evacuation planning for hospitals (if summary disposition is denied], and role conflict for bus drivers) in one hear'ng, rather than disposing of each in a 'plecemeal fashion.
The Board in a Memorandum and Order dated February 8,1988, has requested the parties to submit a schedule for hearing all remaining Issues by February 24, 1988.
The Staff belives it would aid in the l
l prompt disposition of the proceeding not to have piecemeal hearings.
It li would be more efficient to set a schedule for a single hearing to consider all those issues that may require hearing other than those involving "realism" and "immateriality".
The Board order apparently loolts to such l
!!l (FOOTNOTE CONTINUED FROM PREVIOUS PAGE)
- T (1985) (regarding reopening of the relocation center issue); 25 NRC 884, C Ll-87-5 (1987) (regarding reopening of the WALK radio and D
Red Cross letter of agreement issues),
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a procedure and a - reasonable hearing schedule for the remaining
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i emergency planning issues.
l.i 1-CONCLUSION 1
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For the reasons stated above, LILCo's Motion in Limine should be
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- t granted, and the Motion to Set a Schedule should be held in abeyance
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pending the Board's resolution of the other remanded issues.
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Respectfully submitted, l
. O Edwin J.
s t
i Deputy A 'sistant General Counsel
-i Dated this at Rockville, Maryland this 11th day of February,1987,
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UNITED STATES OF AMERICA thNRC j'
NUCLEAR REGilLATORY COMMISSION f
'88 FEB 12 P3 51
]
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
[
OFFICE GF Lill AM
{
00Ch[11NG A 'iEi4VICf.
in the Matter of
)
BRANCH i
L.
)
LONG ISLAND LIGHTING COMPANY
)
Docket No.
50-322-OL-3
)
(Emergency Planning)
(Shoreham Nuclear Power Station,
)
- f Ur.it 1) 1 t
CERTIFICATE OF SERVICE I hereby certify that copies cf "NRC STAFF RESPONSE TO LILCO'S MOTION IN LIMINE AND MOTION TO SET A SCHEDULE" in the above-captioned proceeding have been served on the following by deposit in the United j
States mall, first class or, as Indicated by an asterick, through deposit j
in the Nuclear Regulatory Commission's internal mall system, this 1!th day of February 1988.
James P. Gleason, Chairman
- Joel Blau, Esq.
Administrative Judge Director, Utility Intervention Atomic Safety and Licensing Board Stilte 1020 U.S. Nuclear Regulatory Commission 99 Washington Avenue Washington, DC 20555 Albany, NY 12210 Jerry R. Kline*
Fabian C. Palomino, Esq.
Administrative Judge Special Counsel to the Governor Atomic Safety and Licensing Board Executive Chamber U.S. Nuclear Regulatory Commission State Capitol Washington, DC 20555 Albany, NY 12224 Frederick J. Shon*
Jonathan D. Feinberg, Esq.
Administrative Judge New York State Department of Atomic Safety and Licensing Board Public Service U.S. Nuclear Regulatory Commission Three Empire State Plaza j
Washington, DC 20555 Albany, NY 12223 Philip McIntire W. Taylor Reveley 111, Esq.
Federal Emergency Management Donald P. Irwin, Esq.
Agency Hunton & Williams 26 Federal Plaza 707 East Main Street Room 1349 P.O. Box 1535 i
New York, NY 10278 Richmond, VA 23212 l
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I l' Douglas J. Hynes, Councilman Dr. W. Reed Johnsor Town Board of Oyster Bay 115 Falcon Drive, Colthurst Town Hall Charlottesville VA 22901 i
Oyster Bay, New York 11771 I,
j Stephen B. Latham, Esq.
Herbert H. Brown, Esq.
Twomey, Latham & Shea Lawrence Coe Lanpher, Esq.
Attorneys at Law Karla J. Letsche, Esq.
t 33 West Second Street Kirl patrick & Lockhart
[
Riverhead, NY 11901 South Lobby - 9th Floor 1800 M Street, NW t
Atomic Safety and Licensing Washington, DC *20036-5891 I
Board Panel
- L.
U.S. Nuclear Regulatory Commission Jay Dunkleberger Washington, DC 20555 New York State Energy Office Atomic Safety and Licensing Agency Building 2
[
Appeal Board Panel
- Empire State Plaza U.S. Nuclear Regulatory Commission Alba nt/, NY 12223 g
Washington, DC 20555 Spence W. Perry, Esq.
Martin Bradley Ashare, Esq.
General Counsel Suffolk County Attorney Federal Emergency Management 3
H. Lee Dennison Building Agency t
f Veteran's Memerlai Highway 500 C Street, SW Hauppauge, NY 11788 Washington, DC 20472 Anthony F. Earley, Jr.
Dr. Monroe Schneider General Counse!
North Shore Committco Long Island Lighting Company P.O. Box 231 175 East Old County Road Wading River, NY 11792 l
Hicksville, NY 11801
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Ms. Nora Bredes J
Dr. Robert Hoffman Shoreham Opponents Coalltion Long Island Coalition for Safe 195 East Main Street I
Living Smithtown, NY 11787 l!
P.O. Box 1355 l
Massapequa, NY 11758 William R. Cumming, Esq.
)
Office of General Counsel Alfred L. Nardelli, Esq.
Federal Emergency Management s
i New York State Department of Law Agency 120 Broadway 500 C Street, SW L
Room 3-118 Washington, DC 20472 Docketing and Service Section*
Barbara Newman J
Office of the Secretary Director, Environmental Health U.S. Nuclear Regulatory Commission Coalition for Safe Living i
Washington, DC 20555 Box 944 Huntington, New York 11743 i
Edwin J.
.els '
Deputy ssistant General Counse!
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