ML20196H949
| ML20196H949 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 03/07/1988 |
| From: | Latham S, Mcmurray C, Zahnleuter R KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20196H952 | List: |
| References | |
| CON-#188-5792 OL-3, NUDOCS 8803140114 | |
| Download: ML20196H949 (9) | |
Text
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March ntwriks 8 UdNRC 18 WW 10 P2:22 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION crricE c; st:c,1 u y 00CKE ilm; !. -n. e,i:' f.
Before the Atomic Safety and Licensina Board BR ANC':
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In the Matter of
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LONG ISLAND LIGHTING COMPANY
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Docket No. 50-322-OL-3
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(Emergency Planning)
(Shoreham Nuclear Power Station,
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Unit 1)
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SUFFOLK COUNTY, STATE OF NEW YORK AND TOWN OF SOUTHAMPTON MOTION FOR RECONSIDERATION OF THE BOARD'S RULING ON LILCO'S MOTION FOR
SUMMARY
DISPOSITION OF THE HOSPITAL EVACUATION ISSUE Suffolk County, the State of New York and the Town of Southampton (the "Governments") hereby move the Board to reconsider its February 24, 1988 Memorandum and Order (Ruling on LILCO's Motion for Summary Disposition of the Hospital Evacuation Issue) (the "Order").
As set forth more fully below, the Order fails to give adequate consideration to the issues identified by the Government and errs in its conclusions.
Therefore, the Order should be vacated in the following respects.
9803140114 000307 PDR ADOCK 05000322 O
PDR y
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THE BOARD SHOULD RECONSIDER ITS DECISION TO DELEGATE CERTAI!LIAiML INQUIRIES TO THFEFF In its Ordor, the Board delegated to the staff the authority to determina the adequacy of certain aspects of LILCO's Plan --
primarily with respect to confirming thu availability and capabilities of reception hospitals identified in LILCO's Plan.
Order at 10.
In doing so, the Board erred in failing to consider legitimate arguments raised by the Governments.
In their February 1 Reply to the NRC Staff's Response to LILCO's Motion,1/ the Governments raised concerns regarding the Staff's loss of objectivity on the hospital evacuation issue, which precluded the delegation of any factual inquiry on hospitals to the Staff.
Egg Reply at 20-21.
However, the Board's Order, rather than addressing those concerns, dismissed i
them summarily as ad hominem attacks on the Staff.
Order at 5.
i The Board has mischaracterized the Governments' Reply.
The Order states:
From page twenty on, the Governments' Reply is an ad hominem attack upon the objectivity and integrity of the Staff.
l Order at 5.
This is inaccurate.
First, while the Order depicts the Governments' concerns regarding the Staff's objectivity as a l
lengthy "screed" (Order at 5), in fact, those concerns are expressed in little more than a page (Egg Reply at 20-21).
The i
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Reply o'-
Suffolk County, the State of New York and the Town of Southampcon to the NRC Staff Response in Support of LILCO's d
Motion for Summary Disposition of the Hospital Evacuation Issue (Feb.
1, 1988) ("Reply"). t
remaining two pages of the Reply (pp. 21-22) raise factual issues t
regarding the affidavit of the Staff's witness, Dr. Urbanik.
Second, there is absolutely nothing ad hominem in the Reply.
The Gevernments' counsel brought to the Board's attention facts which they contend require the Board to refrain from any delegation to the Staff.
The Board declined to deal with those facts and instead has stated that we made an "attack" upon the Staff.
The Governments made no "attack."
The Governments do in fact question the Staff's objectivity and set forth the bases for that belief.
There is no regulation or rule which prohibits us from doing so.
Indeed, our duty to our clients requires us to raise such issues if the facts merit it.
The Board may disagree whether the facts as set forth in the Governments' Reply cast question on the Staff's objectivity.
If so, the Board is obligated to provide a reasoned decision analyzing those facts and applying the law.
Egg Public Service I
Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-422, 6 NRC 33, 40-42 (1977).
The Board did not do so, but proceeded to delegate matters to the Staff without analysis of the facts, i
l Order at 10.
The Board must reconsider its action.
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II.
THE BOARD ERRED IN ACCEPTING LILCO'S RECEPTION HOSPITAL CAPACITY FIGURES WITHOUT ANY FACTUAL INOUIRY In their pleadings, the Governments raised various questions about the assumptions underlying LILCO's hospital evacuation time estimates.
The Board properly ruled that the bases for the times estimates are "not entirely clear" and denied summary disposition regarding the accuracy of those time estimates.
Order at 11.
The Board further ruled, however, that no inquiry could be made into one of the crucial assumptions underlying LILCO's hospital evacuation time estimates -- the assumption that 14 percent of the capacity of LILCO's reception hospitals would be available to receive evacuating patients.2/
The Board explicitly stated that the method by which the 14 percent figure was derived "may not be entirely sound" and that it was, at best, a "crude guess."
Nevertheless, the Board completely cut off any further inquiry, ruling that to do so would be a "waste of resources."
Order at 11.
The Board acted prematurely in making, in effect, a decision on the merits despite the existence of disputed facts.
The Board's Order accepts LILCO's capacity assumption without any inquiry into whether the "crude guess" made by LILCO could have been refined to a more well-reasoned figure by using the historical capacity data from the actual reception hospitals relied upon by LILCO in Revision 9 of its Plan.
The Board has no basis to determine on the existing record whether LILCO, by using 2/
This assumption is critical because the available capacity of the reception hospitals affects the distances and routes that ambulances and ambulettes will be required to travel.
national data, might have doubled or tripled the available 1
capacity which has historically been available at those l
hospitals.
Indeed, the very fact that LILCO has not used such local data raises a question regarding the validity of LILCo's assumption.
Second, the Board has no basis on the existing record to determine how sensitive LILCO's evacuation time estimates are to changes in available capacity.
That is, during an emergency, LILCo's hospital evacuation time estimate will have no use unless:
(1) the actual available capacity is in fact 14 percent of available capacity; or (2) the persons implementing the Plan have some idea as to how changes in hospital capacity will affect evacuation times.
However, by accepting LILCO's questionable data, the Board has limited the information available to crude guesses rather than inquiring whether more refined data -- and thus more accurate time estimates -- are possible or whether sensitivity analyses should be required.
In short, the Board has I
simply closed the door on a meaningful inquiry into an important piece of data.
Finally, the Board's order is silent as to the standards it applied in determining that inquiry into the matter would be a i
"waste of resources."
Accordingly, the Governments and any reviewing body are at a loss to know the bases for the Board's l
action.
Again, the Seabrook decision cited above requires a reasoned explanation.
For these reacons, the Board should permit
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inquiry into the issue of reception hospital capacities.
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i III. TH5 B kRb iGN RED THE ISSUE OF THE NEED FOR LETT5RS OF AGREEMENT s
In ALAB-832, 23 NRC 135 (1986), the Appeal Board reversed this Board's Partial Initial Decision, 21 NRC 644 (1965) ("PID*),
on the issue of LILCO's hospital evacuation plans.
In particular, the Appeal Board found that the approach taken by this Board in the PID favored ad hgg treatment of hospital evacuation -- an approach not supported by the NRC's regulations.
ALAB-832 at 154-57.
One of the matters on which the Appeal Board found this l
Board's analysis lacking was LILCO's failure to obtain lettors of l
agreement with reception hospitals.
Without such agreements, LILCO's Plan for hospital evacuation cannot be considered anything more than ad hoc.
Egg id.
The Commission affirmed the l
Appeal Board's ruling.
CLI-87-12, 26 NRC _, (1987).
In light of these rulings, it is plain that LILCO has an i
obligation to obtain letters of agreement from the reception I
hospitals to which it intends to take patients evacuated from the i
J three hospit31s within the EPZ in the event the need arises.
l LILCO's Revision 9 plan for hospitals, however, contains no such letters of agreement.
Rather, LILCO has werely listed those hospitals it hopes will accept evacuating patients.
LILCO's continued ad has approach to hospital evacuation is without any support whatsoever.
Accordingly, the Governments Response to LILCO's motion for summary disposition on the 5
J 4 i
3
e hospital cvacuation issue raised the Plan's shortcomings.2/
The Board, however, completely ignored this issue; indeed, nowhere in the Board's Order were the words "letters of agreement" even mentioned.
The Board also failed to explain why it was disregarding the rulings of the Appeal Board and the Commission on the need for letters of agreement.
Again, the Board has failed to provide a reasened basis for its decision.
Letters of agreement are plainly required, but are still lacking in LILCO's Plan.
Yet, the Board granted summary disposition to LILCO on all but the accuracy of LILCO's hospital evacuation time estimates.
In light of this clear error in the Board's Order, the Board should review the Appeal Board's and Commission's prior rulings on the matter and vacate the Order to the extent that it condones the absence of letters of agreement.
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Egg Suffolk County, State of New York and Town of l
Southampton Response to LILCO's Motion for Summary Disposition of the Hospital Evacuation Issue (Jan. 15, 1988) at 37-38.
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( Response").
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IV.
CONCLUSIQE i
For the foregoing reasons, this Board should reconsider its Order on the hospital evacuation issue.
J Respectfully submitted, E. Thomas Boyle Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Happauge, New York 11788
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m La dence doe Lanpher
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Christopher M. McMurray
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Ronald R. Ross KIRKPATRICK & LOCKHART 1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C.
20036-5891 Attorneys for Suffolk County YL J
_Fabian G.
Pale' mind
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Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Richard J.
Zahnleuter Deputy Special Counsel to the Governor of the State of New York j
Executive Chamber Room Number 229 Capitol Building Albany, New York 12224 Attorneys for Mario M. Cuomo, Governor of the State of !!ew York
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Stephen B./tatham Twomey, Latham & Shea P.O.
Box 398 33 West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton March 7, 1988
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