ML20196H987

Suffolk County,State of Ny & Town of Southampton Motion for Reconsideration of Board Memo & Order Ruling on Contention Re Lilco Emergency Broadcast Sys.* Certificate of Svc Encl

ML20196H987
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: ML20196H949 ML20196H987
References
OL-3, NUDOCS 8803140124
Download: ML20196H987 (16)

Text

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k Ma r#WJEt988 vmnv UNITED STATES OF AMERICA .

NUCLEAR REGULATORY COMMISSION

'88 NM 10 P2:23 .

Before the Atonic Safety and Licensina Board

$h'cff$.f f it t. h t ,

c ) s In the Matter of ) r F

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

) (Emergency Planning).

Shoreham Nuclear Power Station, )

Unit 1) ) ,

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SUFFOLK COUNTY, STATE OF NEW YORK AND TOWN OF  :

SOUTHAMPTON MOTION FOR RECONSIDERATION OF THIS  :

BOARD'S MEMORANDUM AND ORDER RULING ON CONTENTION RELATING TO LILCO'S EMERGENCY BROADCAST SYSTEM i

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I. INTRODUCTION  !

Soffolk County, the State of New York and the Town of i

Southampton (the "Governments") hereby move this Board to  ;

reconsider its Memorandum and Order, dated February 24, 1988,  !

(the "Order") ruling on the admissibility of the Governments' j Contention regarding LILCO's Emergency Broadcast System ("EBS").

II. BACKGROUND On June 11, 1987, the Commission issued a Memorandum and Orderl/ reopening the record on LILCO's EBS plan as a result of the withdrawal of WALK Radio as LILCO's primary EBS station. On November 6, 1987, LILCO filed a Motion for Summary Disposition of the WALK Radio Issue. LILCO's Motion introduced a new EBS, based 1/ CLI-87-5, 25 NRC 884 (1987),

8803140124 880307 PDR ADOCK 05000322 c PDR

l upon a lead EBS radio station located in southern Connecticut.

This Board denied LILCO's Motion for Summary Disposition on December 21, 1987, and directed the Governments to submit conten-tions concerning the adequacy of LILCO's new EBS. The Govern-ments did so on January 12, 1988, submitting a single contention with numerous bases. This Board's February 24 Order denied admittance of Bases 1.D, l.E, 2.B, 2.C, 3 and 4. Among this Board's rulings were: (1) that issues concerning the adequacy and coverage of LILCO's EBS outside the plume exposure EPZ would not be heard; and (2) that facts regarding the extremely low listenership and low credibility of LILCO's EBS were not relevant and could not form the basis for the Governments' Contention.

The Governments move for reconsideration because the Board's Order contains errors which, individually and in the aggregate, unfairly permit LILCO to offer an entirely new EBS without affording the Governments a fair opportunity to raise, and be heard on, the numerous flaws in the new EBS. The Board's apparent narrow interpretation on the .3 cope of the remand is inconsistent with the Commission's remand Order, this Board's own rulings, the Atomic Energy Act's hearing requirements, and funda-mental due process. The Governments say "apparent" because the Order contains little analysis of the arguments made by the Governments in support of the admissibility of the entire conten-tion, leaving the Governments (and any reviewing body) in the dark concerning the precise bases for the Board's rulings.

Accordingly, the Governments seek reconsideration of the Board's 6

rulings on Bases 1.D, l.E, 2.B, 2.C, and 3. Reconsideration is not sought regarding Basis 4.

III. DISCUSSION A. The Board Erred In Limiting EBS Considerations To The Confines Of The Plume Exoosure EPZ

l. Bases 1-3 In General In considering the admissibility of Basis 1 and its sub-parts, the Board ruled, as a preliminary matter, that the Govern-ments' Contention as a whole would be limited in scope to commun-ication of emergency information to persons within the 10-mile plume exposure EPZ. The Board stated in support of its ruling that it "knows of no requirement in NRC regulations or case law construing them which imposes an obligation on an Applicant to communicate through EBS messages to members of the public outside the (plume exposure) EPZ." Order at 3. The Governments submit that the Board's ruling is clearly in error.

While it is true that 10 CFR S 50.47(b)(5) and NUREG 0654 II.E.6 may limit the garly notificatisn requirement (i.e., sirens and initial EBS messages) to the "plume exposure EPZ," it is equally true that 10 CFR S 50.47(b)(5) p'tovides for establishment of "initial and followup messages to response organizations and the oublic," (emphasis added) not just those persons within the EPZ. Moreover, 10 CFR S 50.47(b)(6) and NUREG 0654 S II.E.5 do not limit the requirement that there be a capability of "prompt communications . . . to the public" and "a system for dissemin-3-

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ating to the public appropriate information contained in initial and followup messages" to those persons within the 10 mile EPZ.

Thus, the NRC knew how to limit its regulation 1 and guidance to the plume exposure EPZ and did so with explicit language when it '

intended such a limitation to apply. Reference to "the public" without such a limitation must therefore be construed more broadly to take into account a broader dissemination of informa-tion.

The Board's Order barely addressed the above argument, noting only that:

NRC's regulatory scheme for emergency planning is premised on detailed emergency planning within the EPZ to the degree that an expansion of response effort can be implemented beyond it if proven necessary. ,

Order at 4. The Board neglected to recognize, however, that there are two EPZs -- a 10-mile plume exposure EPZ and a 50-mile i incestion oathway exoosure EPZ. Both require detailed planning. 6 Egg 10 CFR S 50.47(b)(10); NUREG 0654 Section II.J.11. The Board cites no means other than an EBS to convey emergency information .

to people in the ingestion exposure EPZ. To conclude, as the Board has, that it is not necessary to consider and analyze the ,

adequacy of EBS information disseminated to people at risk out-side the 10 mile EPZ, but in the larger ingestion pathway EPZ, is inconsistent with the regulations.

Even LILCO, in its Plan, has recognized the need to commun- 1 icate emergency information, including "followup messages" to  !

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s persons outside the plume exposure EPZ.2/ The LILCO Plan does not even limit information to be communicated to persons outside the plume exposure EPZ to that related to ingestion pathway-related protective actions.3/ To suggest that the ability to communicate such information to persons outside the 10 mile EPZ is not required, is inconsistent with LILCO's own Plan and with its position throughout this litigation.

The Board also is off-base when it suggests that the proposed LILCO EBS messages to people outside the plume exposure EPZ contained in LILCO's Plan are simply a nice addition to the Plan which provides a means for an expanded (meaning ad has) 2/ For example, OPIP 3.8.2, S 5.2.2.f on EBS "Message Assembly" instructs the LERO Coordinator of Public Information as follows:

At the direction of the Director of Local Response, obtain from the Radiation Health Coordinator information concerning where ingestion pathway protective action levels may have been exceeded. Develoo a sucole-mentary EBS messaae to inform ceople in these areas of accrooriate actions and where they can call for further information.

(Emphasis added).

3/ Under LILCO's Plan, the information to be communicated to persons outside the plume exposure EPZ includes information such ,

as the boundaries of the plume exposure EPZ, and whether persons outside the EPZ should take protective actions recommended for those inside the EPZ. Thus, for example, LILCO's sample EBS messages contain descriptions of the EPZ boundaries and the following statements:

If you are outside the 10 mile emercency plannina zone there is no reason to take any action. If conditions change in the future, these recommendations may chance and we will inform you immediately.

OPIP 3.8.2, Att. 4 (emphasis added). ,

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response beyond the plume exposure EPZ. Order at 4. The Board's basis for this statement is its misperception that all actions outside the 10-mile EPZ will necessarily be "expansions" of l t

actions inside the EPZ. However, the need for detailed planning 7 t

for the ingestion pathway EPZ belies this Board interpretation.

Indeed, the Board's interpretation is directly contrary to the Board's findings in the PID,d/ in which the Board found {

LILCO's Plan for the ingestion pathway EPZ to be adequate:

i The Board finds no barriers to LILCO's ability to warn the public through EBS messages . . . . ,

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PID at 877. As this language demonstrates, the Board plainly  !

f recognized the need for an adequate EBS to disseminate informa-f tion beyond the plume exposure EPZ. Yet, now it claims, without f addressing its former ruling, that there is such need. The  !

I Governments respectfully submit that in light of the Board's  !

prior ruling, the clear intent of the regulations and LILCO's own j recognition of its regulatory obligations, the regulations must  ;

be interpreted to require the means to disseminate EBS informa-tion to people beyond the plume exposure EPZ. Accordingly, the Board's ruling limiting the Governments' contention solely to the  !

adequacy of LILCO's EBS coverage within the clume exo7sure EPZ is [

t plainly erroneous. l f

4/ Partial Initial Decision, LBP-85-12, 21 NRC 644 f1985)  !

("PID"). [

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2. Basis 2.C (Incestion Pathway) ,

Basis 2.C of the Governments' EBS Contention cited the lack of EBS coverage in the densely populated portion of the ingestion pathway EPZ directly west of the plume exposure EPZ. We will not repeat the reasons stated above demonstrating the relevance and appropriateness of this portion of the Contention. As the Board noted in its Order at 1-2, the Governments' Contention would be admissible to the extent it "challenge (s) with basis and specificity the adequacy of LILCO's new arrangement for trans-mitting EBS messages and activating tone alerting radios to conduct emergency notification." The Board expressed no concern with the specificity of Basis 2.C; the adequacy of its factual and legal basis has been demonstrated above. Accordingly, the Board's ruling regarding Basis 2.C is in error.

3. Basis 3 (Evacuation Shadqwl Pasis 3 of the Governments EBS contention discussed the fact that gaps in LILCO's EBS coverage directly outside of the

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plume exposure EPZ would cause a significant evacuation shadow phenomenon. The Board dismissed this basis summarily and without analyses of the Governments' prior arguments regarding this basis, ruling:

Even if there were validity to the Inter-venors' claim -- that a significant shadow would develop as a result of the conditions cited -- that issue would have no place before us in our restricted coverage of LILCO's EBS system.

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4 Order at 7. Assuming that the Board was referring to the geographical restriction it has applied to the Governments' contention, that restriction has no basis for the reasons demonstrated above.

In addition, further reasons exist which require reconsid-eration of the ruling on this portion of the Contention. For oxample, in the PID, when ruling on evacuation shadow issues, the Board did not attempt to create a barrier restricting the need for EBS coverage to the plume exposure EPZ. Rather, in discussing information provided to members of the public who might otherwise evacuate although there was no need to do so, the Board ruled:

The ability of LILCO to manage an off-site emergency response is heavily dependent on its ability to frame appropriate messages and to disseminate them to the oublic. We find here only that LILCO has taken account of the net.d for public notification and has prepared to meet that need.

The Board's ultimate finding on this contention stronalv deoenda on there being clear nonconflicting notice and instruction to the oublic at the time of the accident.

If for any reason, confused or conflicting information was disseminated at the time of the accident, the board accepts that a large excess evacuation on Long Island could materialize.

PID at 670 (Emphasis added).

The "public" discussed in the above passage includes the public outside the plume exposure EPZ; and the way that LILCO had prepared to disseminate information to that public was through the EBS that existed at that time. The Board in the PID thus ruled, in essence, that any shadow phenomenon would be manageable only if adequate EBS information is provided to the public t outside the clume exposure EPZ. Under LILCO's prior plan there was such coverage. Now, however, LILCO's new EBS will not cover those portions of the public that were previously covered, thus leading to the conditions which the Board recognized would result in public overresponse. To suggest that this basis does not contest the adequacy of LILCO's new EBS, which the Board acknowledged is the appropriate scope of inquiry, is thus not only contrary to the facts, but inconsistent with the Board's prior ruling.

B. The Listenership and Credibility of LILCO's EBS Are Relevant to the Adequacy of the EBS.

Bases I.D., I.E and 2.8 relate to the low listenership and low credibility of WPLR-FM and LILCO's secondary EBS stations among the populating Suffolk County. In rejecting those bases, the Board ruled that they "are neither relevant nor do they assist in focusing the matter of this proceeding, 211 the adequacy of LILCO's new EBS system." Order at 5. The Board also found that "(n]o particular regulatory requirement is cited here or elsewhere in support of these particular allegations." 1d.

The Board's Order is both factually and legally erroneous.

First, the Board is wrong when it alleges an absence of Government citations in support of Bases 1.D and 1.E. snose citations are provided in the first paragraph of the Contention

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which cites 10 CFR SS 50'.47(a)(1), (b)(5) and (b)(6), 10 CFR Part 50 Appendix E SS IV.D.2 and 3, NUREG 0654 SS II.E.5 and E.6, and Appendix 3 thereto, and FEMA REP-10. The Governments' Response 5/

a'c 27-33 discusses in' detail why the cited NRC regulations are not met. The absence of any serious review of the Governments' arguments and the cited provisions undercuts the validity of the Board's ruling in this regard. 1 Second, in the absence of any discussion by the Board, the Governments are at a loss as to why issues of listenership and credibility are not relevant to the adequacy of LILCO's new EBS.

The Governments provided numerous reasons why they were, agg Response at 27-33, 36, but the Board failed to address them. In fact, however, what appears to have occurred is that the Board simply decided that it disagreed with the Governments' contention. Sgg Order at 5 where Board states that "it is not clear to us how the listenership rate and public perception l concerning one station in an EBS system has any bearing on the system's ability to accomplish its overall emergency tasks and assignments." Such a decision on the merits at the contention admission stage is clearly improper. Egg cases cited in Response at pp. 10-13.

Third, even assuming that a review of the merits of a contention were permissible at the contention admission stage, it is clear that those issues are very relevant to the adequacy of 5/ Egg Governments' Response to Staff and LILCO Objections to the Emergency Planning Contention Relating to LILCO's New Emergency Broadcast Proposal, Feb. 5, 1988 ("Response").

8 LILCO's EBS. Emergency information and protective action recom-mendations should be perceived by the public as accurate, reliable and from a credible source. PID at 689-91. LILCO itself has so argued throughout this proceeding. Indeed, during cross-examination of LILCO's witnesses on Contention EP 20, it was LILCO's position that persons seeking information regarding a radiological emergency at Shoreham would tune into their local radio stations, rather than New York City or Connecticut stations, because the local stations are viewed as being reliable sources for emergency information. Tr. 5262-65 (March 29, 1984).

The Board provides no reasoned discussion of this matter in the Order.

Finally, the Board's statement quoted above ("it is not clear to us how the listenership rate and public perception concerning one station in an EBS system has any bearing on the system's ability to accomplish its overall emergency tasks and assignments") was made in connection with the Board's discussion of Bases 1.D and 1.E. Bases 1.D and 1.E relate only to WPLR, the lead EBS station. But Basis 2.B addresses the extremely low listenership of the remainder of the stations in the system.

Thus, the only fair reading of the Contention is that the entire system has extremely low listenership and low credibility, but the Board ignored that fact.

The Governments have stated with specificity why the low listenership and lack of credibility they assert are pertinent to the adequacy of an EBS. To the extent the Board is seeking proof of the issues raised by the Governments, the Board is premature.

IV. CONCLUSION The Board should grant the Governments' Motion to reconsider its Order.

Respectfully submitted, E. Thomas Boyle Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788

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m Michael'S. Miller j/

Christopher M. McMurray Michael J. Missal KIRKPATRICK & LOCKHART 1800 M Street, N.W.

South Lobby - 9th Floor Washington, D.C. 20036-5891 Attorneys for Suffolk County

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Fabian G. Pafom /o Richard J. Zahnleuter Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Attorneys for Mario M. Cuomo, Governor of the State of New York

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S t eph6('B . La t ham ' /

Twomey, Latham & Shea Post Office Box 398 j 33 West Second-Street i Riverhead, New York 11901 Attorney for the Town of,Southhampton l

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00LKETEp UbHRC March 7, 1988 UNITED STATES OF AMERICA- 18 MM 10 P2:23 NUCLEAR REGULATORY COMMISSION OFVicE ci ~ -

Before the Atomic Safety and Licensind)0 Board $((Ifjj. '

BRANCH

)

In the Matter of )

)

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

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of SUFFOLK COUNTY, STATE OF NEW YORK AND TONN OF SOUTHAMPTON MOTION FOR RECCNSIDERATION OF THE BOARD'S RULING ON LILCO'S MOTION FOR

SUMMARY

DISPOSITION OF THE HOSPITAL EVACUATION ISSUE and SUFFOLK COUNTY, STATE OF NEW YORK AND TOWN OF SOUTHAMPTON MOTION FOR RECONSIDERATION OF THIS BOARD'S MEMORANDUM AND ORDER RULING ON CONTENTION RELATING TO LILCO'S EMERGENCY BROADCAST SYSTEM have been served on the following this 7th day of March, 1988 by U.S. mail, first class, except as otherwise indicated.

James P. Gleason, Chairman ** Mr. Frederick J. Shon**

Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 James P. Gleason, Chairman William R. Cumming, Esq.

513 Gilmoure Drive Spence W. Perry, Esq.

Silver Spring, Maryland 20901 Office of General Counsel Federal Emergency Management Agenc Dr. Jerry R. Kline** 500 C Street, S.W., Room 840 Atomic Safety and Licensing Board Washington, D.C. 20472 U.S. Nuclear Reoulatory Commicc3on Washington, D.C. 20555 W. Taylor Peve3ny, III, Esq.*

Hunton & Williams Fabian G. Palomino, Esq. P.O. Box 1535 Richard J. Zahnleuter, Esq.* 707 East Main Street Special Counsel to the Governor Richmond, Virginia 23212 Executive Chamber, Rm. 229 State Capitol Albany, New York 12224 l

[

O Joel Blau, E3q. Anthony F. Earley, Jr., Esq.

Director, Utility Intervention General Counsel N.Y. Consumer Protection Board Long Island Lighting Company Suite 1020 175 East Old Country Road Albany, New York 12210 Hicksville, New York 11801 E. Thomas Boyle, Esq. Ms. Elisabeth Taibbi, Clerk Suffolk County Attorney Suffolk County Legislature Bldg. 158 North County Complex Suffolk County Legislature Veterans Memorial Highway Office Building Hauppauge, New York 11788 Veterans Memorial Highway Hauppauge, New York 11788 Mr. L. F. Britt Stephen B. Latham, Esq.

Long Island Lichting Company Twomey, Latham & Shea Shoreham Nuclear Power Station 33 West Second Street North Country Road Riverhead, New York 11901 Wading River, New York 11792 Ms. Nora Bredes Docketing and Service Section Executive Director Office of the Secretary Shoreham Opponents Coalition U.S. Nuclear Regulatory Comm.

195 East Main Street 1717 H Street, N.W.

Smithtown, New York 11787 Washington, D.C. 20555 Alfred L. Nardelli, Esq. Hon. Patrick G. Halpin New York State Department of Law Suffolk County Executive 120 Broadway, 3rd Floor H. Lee Dennison Building Room 3-118 Veterans Memorial Highway New York, New York 10271 Hauppauge, New York 11788 MHB Technical Associates Dr. Monroe Schneider 1723 Hamilton Avenue North Shore Committee Suite K P.O. Box 231 San Jose, California 95125 Wading River, New York 11792 Mr. Jay Dunkleburger Richard G. Bachman, Esq.*

New York State Energy Office Edwin J. Reis, Esq.

Agency Building 2 Office of the General Counsel Empire State Plaza U.S. Nuclear Regulatory Comm.

Albany, New York 12223 Washington, D.C. 20555 David A. Brownlee, Esq. Mr. Stuart Diamond Kirkpatrick & Lockhart Business / Financial 1500 Oliver Building NEW YORK TIMES Pittsburgh, Pennsylvania 15222 229 W. 43rd Street New York, New York 10036 Douglaa J. Mynan, Councilman Town Board of Oyster Bay Town Hall Oyster Bay, New York 11771

Christopher M. M6Mufray /

KIRKPATRICK & LOCKHART 1800 M Street, N.W. /

South Lobby - 9th_ Floor Washington, D.C. 20036-5891

• By Telecopy

• • by Hand Delivery March 8, 1988 a

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