ML20196D323

NRC Staff Response to Lilco Motion for Summary Disposition of Contentions 7 & 8 (Ingestion Pathway & Recovery & Reentry).* Summary Disposition Should Be Granted.W/ Certificate of Svc

ML20196D323
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 8802170076
Download: ML20196D323 (11)

Text

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FEB 2 01987

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DOCKETED USNRC UNITED STATES OF AMERICA -

NUCLEAR REGULATORY COMMISSION 'M FEB 12 P3f8 BEFORE THE ATOMIC SAFETY AND LICENSING BOA %E _

7 g((,5ECgr{

BMt C4 in the Matter of )

)

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

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

NPC STAFF RESPONSE TO LILCO MOTION FOR SUUUARY DISPOSITION OF CONTENTIONS 7 AND 8 (INGESTION PATHWAY AND RECOVERY AND REENTRY)

1. INTRODUCTION LILCO's Motion for St:mmary Disposition of Contentions 7 and 8 (Ingestion Pathway and Recovery and Peentry) ("Motion") seeks to summarily dispose of the two referenced legal authority contentions on the basis of the adequacy of LILCO and New York State Plan provisions for these functions , and the presumption of best effort State and County response in the event of an emergency at Shoreham. Motion at 2.

Co,1tentions 7 and 8 assert that LILCO lacks legal authority to make and impferent decisions and protective action recommendations for the l

l Ingestion exposure pathway and for recovery and reentry, respectively.

As set forth below, the previous findings that the LILCO Plan is adequate with regard to the Ingestion exposure pathway and recovery and l

reentry procedures, pro"isions of the LILCO Plan, and the regulatory presumption that the State and County w3!! use their best efforts to follow l the LlLCO Plan or another adecuate and feasible timely-proffered plan, support summary disposition of contentions 7 and 8.

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II. DISCUSSION _

A. There are no Litigable issues with - Respect to ingrstion Pathway Planning _ _ ,

in remanding the legal authority contentions, the Commission in CLI-86-13 directed that the Licensing Board address several factual questions going to whether, assuming a best effcrts response by State and County authorities generally fol'owing the LILCO Pla n , the LILCO-only plan perrr.its a finding of reasonable assurance that adeauate protective measures can and will be taken in the event of an emergency at S horeharr . 24 NRC 29, 31-32. The Commission adopted a similar generic standard in 10 C.F.R. Section 50.47(c)(1) (52 Fed. Reg. 42086, November 3, 1987), applicable to cases in which a utility can show that its non-compliance with Section 50.47(b) is substaritlally related to the non-participation of state and local governments in planning.

With . respect to ingestion pathway planning, the Commission's questions in CLl-86-13 relate to whether lack of familiarity with the LILCO Plan , cr delays in making decisions and recomp endations as to protective actions would stand in the way of such a finding. 24 NRC at

31. The Board was encouraged to "use the existing evidentiary record to the maximum extent possible, but should take additional evidence where necessary." id,. at 32. The Commission treated the issue of irr. materiality as a factual issue for resolution in connection with further proceedings on realism. M.

In previously rejecting summary disposition of Contention 7, the Licensing Board conceded that it had, under the rubric of Contention 81, found that the LILCO Plan for the ingestion pathway could be implemented without legal authority to compel public action. Memorandum and Order,

September 17, 1987, at 37, citing 21 NRC 644, 877-76. However, the Board declined to grant summary disposition because of the question of lack of coordination between LILCO actions and possible State and local government actions in the event of an accident. Id,. at 38. The Board stated:

It is by no means clear to the Scard at this time that the two groups would not work at cross purposes, ror is it clear that if L!LCO simply withdrew the resulting actions by the Governments , presently unspecified , would comply with NRC regulations.

1hus we cannot grant summary disposition on Contention 7.

M. Similarly, in granting summary disposition of Contention 97 (Memorandum and Order, November 6, 1987, at 14, 15), the Boar d treated the question of the adequacy of a government response as a matter for consideration under Centention 7. While the Board found that the Appeal Board haa ruled that there wa; no requirement for further inquiry into State ingestion pathway functions beyond the four litigated under Contention 92, it treated the question of whether the State would do a better Job than LlLCO as a matter for consideration under Cortention 7. M. at 14. See ALAB-847, 24 NRC 412, 432.

The Licensing Board's previous rulings, that further evidentiary hearings are necessary on the possibility that LILCO and the State would wor k ai cross purposes or on how the State's participation would make the plan better, are incorrect.

First, the Lf LCO Plan , v.hich was found adequate in this regard, states that if State authorities "are willing and able to implement the ingestion pathway plan for thrir state, no f urther action is necessary..."

L OPIP 3.6.6, ci,M in Votion at 25. Thus, LILCO's Plan does not provide l

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for LERO to implement its ingestion pathway pfan in the face of State Ingestion pathway response. The Licensing Board accepted this fact as admitted. Noverrter 6, 19f$7 Memorandum and Order, at 7, 16. Thus, any conflict between the State and LILCO response is prevented by the LILCO Plan itself. As a result, the Board should reverse its finding that the LILCO and the State might work at cross purposes, in cddition, any inquiry into whether the LILCO Plan is deficient because the State night do a better Joh is foreclosed by CLI-86-13, which directs inquiry into whether, because of lack of familiarity with the LILCO Plan, and delays in decisionmaking and recommendations, a best effort! State or local response might preclude a reasonable assurance finding. The question is not whether a state may do a better job but whether the LILCO Plan , toqether with a best efforts government response, considered on its own merits, would be adequate. 52 Fed.

Reg. 32085. Further, the Appeal Board in ALAB-047, 24 NRC at 432, indicated that a Licensing Board may not impose requirements beyond those in the regulations simply because the State might do a better job than LILCO. As there stated a plan that meets regulatory requirements is su f ficient , regardless of whether a governmental plan might be better. O id.

Moreover, the adeption by the Commission of the regulatory I

l presumntion that State and local authorItles would use their best efforts f ,1/ In the NRC Staff Response to the Board's Merrorandum Requesting l

the Views of Parties on the Matters to be Decided on the Realism l

Remand, October 30,1987, at 14, noted that, given the finding that l the LILCO Plan was adequate and implementab!c yi,thout l mandatory l authority warranted summary disposition based on immateriality.

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to irr piement the LILCO Plan or another ' adequate and feasible timely-proffered plan has the ef fect of superceding the Licensing Board's prior determinations that the State and LILCO might somehow work at cross purposes or that LILCO might simply withdraw and the Governrr.ents would proceed on an ad hoc basis. See Memorandum and Order, September 17,1987, at 38, Section 50.47(c)(1)(111).

The regulatory presumption under 10 C.F.P.. 6 50.47(c)(1) fili) is that the State will either follow the LILCO Plan or its own acequate plan, in the case of the ingestion pathway, New York State has a generic plan, but not one specifically oriented to the Shoreham plant. Motion at 18 g sea. Section 50.47(c)(1) fill) creates a presumption that the State and local authorities will follow the LILCO Plan, already found w orkable.

21 NRC at 670.

With respect to the Commission's factual questions concerning the adequacy of such a response (see 24 NPC at 31), it appears that most portions of New York State within the Shoreham ingestion pathway zone

- are covered by the ingestion pathway zones for Indian Point or Mllistone.

Motion at 19, Attachment 6, at K-9. Thus, the State is already pre pared to perforra ingestion pathway respense functlens for a substantial portion of the areas of New York State under ccnsideration for the Shoreham ingestion exposure pathway EPZ. Familiarization of State organizations ar.d personnel with the State's functions under those plans is obviously unnecessory. Since New York State already has plans for portions of the Shoreham EPZ, it will require little familiariration with the LILCO Plan in order to determine that LILCO's plan, which covers the entire Shorehari ingestion pathway EPZ, is preferable to use of the State's plan, which

i does not. Finally, coordination should not be an issue, since the LERO-organization is ' instructed to follow the State's direction. OPIP 3.6.6.

In sum, a best efforts response using the LILCO Plan already found-workable with respect to ingestion pathway functions would bring those State officials responsible for these functions into contact with similarly tasked LERO managers. Those State officials would then direct ingestion pathway response using the only fully-developed plan for the Shoreham pathway.

As a result, the existing' record shows there are no facts material to disposition of Contention 7 which are genuinely in dispute, and summary disposition of Contention 7 is aopropriate.

B. There are no- Litigable issu(s with Respect to Recovery and Reentry Procedu res in the PID, the Licensing Board considered the adecuacy of the LILCO Plan for recovery and reentry against the regulations, and found it adequate, save for the issue of legal authority. The regulations, 10 C.F.R. Section 50.47(b)(13), state that: "General plans for recovery end reentry are developed. " Moreove r , the planning guidance criteria contained in NUREC-0654, Section ll.M, refers only to "general plans and procedures" and "the means by which decisions . . . are reached," the "means for informing" emergency responders, and a "method of periodically estimating total population ex posu re. " The Board, in the PlD, emphasized that aetalled planning for contingencies was not required. 21 NRC at 880, it also noted that at the tirre consideration of recovery and reentry woulo be undertaken, "the public would be safe from radiation exposure" and the recovery committee "would have time to

deliberate . and decide what it should recommend. " M. Thus, the requirement for general recovery and reentry plans was there Interpreted to require establishment on!y of the appropriate framework for decisionmaking at a later time, in finding the LILCO Plan adequate for recovery and reentry, the PID stated:

The Board concludes that . LILCO's general plans for recovery and reentry are adequate under the guide-lines of 10 C.F.R. 550.47(b)(13) and NUREG-0654 Sil.M. A plan to form an expert committee at the time of an accident to mrke decisions according to predetermined guidelines constitutes a reasonable plan for recovery and ree ntry , it is not necessary to preplan at this stage for contingencies that a committee can resolve at the time of an accident when it has the necessary information for decisionmaking.

21 NPC at 880.

Flowever , the Licensing Board subsecuently rejected summary disposition o' miention 8 in its Memcrandum and Order of Septcmber 17, 19P.7, s tating :

The possible participation by local authorities and the "best efforts" assumption do not combine to assure thet proper reentry anct recovery procedures will either be evolvec' cr enforced without .some knowledge concerning who will decide and by what standards.

We must agree with the Intervenors' position that the record dccs not support a conclusion that the proper decisions , recommendations, or actions concerning recovery and reentry would materialize. . ."

M.at38-39.

While the questions posed by the Licensing Roard must be answered to resolve Contention 8, an examination of the existing record indicates that the combination of the already approved plan, the estab!!shed existence of a State ;)lan, and the best efforts presurrption resolves these riotters.

w First, as noted above in connection with the ingestion pathway, the LILCO. Plan provides that if the State or County decide to act to protect the health and safety of the public, LERO would not only give precedence to those State or County actions, but would support those activities as needed. LILCO Plan, Section 1.4-la; OPIP 3.6.6.

Second, the following facts have been cleemed established:

The State of New York has a New York State Radio-logical Emergency Preparedness Plan for nuclear power plants other than Shoreham.

The New York State Dadiological Emergency Prepared-ness Plan calls for the Disaster Preparedness Ccmmission tc appoint a Recovery Committee. (Rev.

July 19P4), at IV-1.

The State has officials who are trained to direct State resources to assist in recovery from a radiological emergency.

Adrritted Facts 43, 61, 62. See September 17, 1987 Memorandum and Order et 44.

As detailed in its Motion, at 8, the State generic plan calls for the State recovery committee to address: (1) determination of the recovery actions to be taken, (2) dissemination of information, (3) provision of assistance to affected areas, and (4) provision for continued monitoring.

This State framework is consistent with the criteria in N U P.E C-0654, outlined above, and is similar to the decisionmaking framework ciscussed and approved in the PID. 21 NRC at 878-880.

Given the similarity in structure and function o' the LERO and State recovery committees, the capabilities of those persons already designated to the State and LILCO recovery committe.es, State authorities can be o.

quickly familiarized with the specific needs of the Shoreham ir gestion EPZ end the secpc of LILCO's planned protective mcasures, in addition, with

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v4 the LlLCO Plan provision for deference to actions undertaken by the State, coordination between the two entitles would not be difficult. Since

. the best efforts presumption dictates that the State and County will attempt to follow the LILCO Plan, and the LILCO Plan calls for LERO to defer to decisions taken by the State, the LILCO Plan provides for any necessary coordination.

• Also, given the availability of time to convene a recovery committee End gather the information needed to determine when to implement recovery anc! reentry and the resources needed to implement it, there is time to familiarize State and County officials with the LILCO Plan and for those officials to determine what measures to institute. See PID, 21 NRC at 880.

Thus, further examination of the Corrmission's factual questions in

- CLl-86-13, as applied to recovery and reentry, establishes that neither lack of familiarity with the LILCO Plan or time pressures on decision-making are significant censiclerations in reaching a conclusion as to whether adecuate protective measures can and will be taken. As a result , there are no materia! facts genuinely in dispute precluding summary dispositior of Contention 8.

Ill. CONCLUSION Summary disposition of Contentions 7 and 8 should be granted.

Resp $ [ectfully submitted, 6rge<y(.) cna F

F. Jopryson

' Counsel for NRC Staff Dated at Rockville, Maryland this 10th day of February,1988

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11NITED STATES OF AMERICA DOLKETED NUCLEAR PEGttLATORY COMMISSION thNRC BEFORE THE ATOMIC SAFETY AND LICENSING BOARK FEB 12 P3 '48 0FFICE OF SicFauv in the Matter of ) 00CMETING A SERVICE BRANCH

)

I ONC ISLAND LIGHTING COMPANY ) Docket No. 5 0-32 2-O L-3 *

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO LILCO MOTION FOR

SUMMARY

DISPOSITION OF CONTENTIONS 5 AND 6 (MAKING DECISIONS AND TELLING THE P U P l. l C ) " , "NRC STAFF RESPONSE TO LilCO MOTION FOR

SUMMARY

DISPOSITION OF CONTENTION 10 (ACCESS CONTROL AT THE EPZ PERIMETEP)", "NRC STAFF RESPONSE TO LILCO MOTION FOR

SUMMARY

DISPOSITION OF CONTENTIONS 4 AND 9 (TOW TRUCKS AND FUEL TRUCKS)r, AND "NRC STAFF RESPONSE TO LILCO MOTION FOR

SUMMARY

DISPOSITION OF CONTENTICNS 7 AND 8 (INGESTION PATHWAY AND RECOVERY AND PEUNTRY)" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, through ckposit in the Nuclear Regulatory Commission's internal mall system, this 10th day of Februarv 1000.

James P. Cleason, Chairman

• Joel Blau, Esq.

Administrative Judge Director, Utility Intervention Atonele Safety and 1.icensing Board Suite 1020 U.S. Nuclear Regulatory Commission 99 Washington Avenue Washington, DC 20555 Albany, NY 12210 Jerry R. Kline* Fabian G. Palomino, Esq.

Administrative Judge Special Counsel to the Governor Atomic Safety and Licensing Ecerd Executive Chamber U.S. Nuclear Regulatory Commission State Capitol Washington, DC 20555 Albany, NY 12224 Frederick J. Shen

• Jonathan D. Feinberg, Esq.

Administrative Judge New York State Depertment of Atomic Safety and Licensing Board Public Service U.S. Nuclear Regulatory Commission Three Empire State Plaza Washington, DC 20555 Albany, NY 12223 Philip Ucintire W. Taylor Reveley 111, Esq.

Federal Emergency Management Donald P. Irwin, Eso.

Agency Hunton & Williams 26 Federal Plaza 707 East Main Street Room 1349 P.O. Box 1535 New York, NY 10278 Richmond, VA 23212

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• Dougles J. Hynes, Councilman Dr. W. Reed Johnson Town Board of Oyster Bay 115 Falcon Drive, Colthurst Town Hall Charlottesville VA 22901 Oyster Bay, New York 11771 Stephen B. Latham, Esq. Herbert H. Brown, Esq.

Twomey, Latham 6 Shea Lawrence Coe Lanpber, Esq.

Attorneys at Law Karla J. Letsche, Esq.

33 West Second Street Kirkpatrick & Lockhart Riverhead, NY 11901 South Lobby - 9th Floor 1800 M Street, NW Atomic Safety ana Licensing Washington, DC 20030-5891 Board Panel

• U.S. Nuclear Regulatory Corrmission Jay Dunkleberger Washington, DC 20555 New York State Energy Office Atomic Safety ano Licensing Agency Building 2 Appeal Board Parel* Empire State Plaza -

U.S. Nuclear Regulatory Commission Albany, NY 12223 Washington, DC 20555 Spence W. Perry, Esq.

Martin Bradley Ashare, Esq. General Counsel Suffolk County Attorney Federal Emergency Management H. Lee Dennison Building Agency Veteran's Memorial Highway 500 C Street, SW Pauppauge, NY 11788 Washington, DC 20472 Antbeny F. Earley, Jr. Dr. Monroe Schneider General Coursel North Shore Committee Long Island Ll 0hting Company P.O. Box 231 175 Fast Old County Road Wading River, NY 11792 Hicksville, NY 11801 Ms. Nora Bredes Dr. Robert Hoffman Shoreham Opponents Coalition Long Island Coalition for Safe 195 East Main Street Living Srrithtown, NY 1170

P.O. Box 1355 Massapeque, NY 11758 William R. Cumming, Esq.

Office of General Counsel Alfred L. Nardelli, Esq. Federal Emergency Management New York State Department of Law Agency 120 Broadway 500 C Street, SW Room 3-118 Washington, DC 20472 Docketing and Service Section* Barbara Newman Office of the Secretary Director, Environmental Health U.S. Nuclear Regulatory Ccmmission Coalition for Safe Living Washington, DC 70555 Box 944 Huntinnton, New York 1174?

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, c rge F[. Johrfson Counsel for NRC Stuff