ML20205H339
| ML20205H339 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 11/12/1985 |
| From: | Latham S, Letsche K, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#485-178 OL-3, NUDOCS 8511150109 | |
| Download: ML20205H339 (25) | |
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NUCLEAR REGULATDRY COMMISSION Before the Atomic Safety and Licensing Appeal Board
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In the Matter of )
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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3
) (Emergency Planning (Shoreham Nuclear Power ) Proceeding)
Station, Unit 1 ) )
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n SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON BRIEF IN OPPOSITION TO LILCO'S BRIEF ON THE RELOCATION CENTER ISSUES
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, November 12, 1985 4
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r TABLE OF CONTENTS I. The'ASLB. Correctly Found that the Relocation Center Contentions Include the Issue of the Need..for LILCO to Estimate the Number of Persons Who Would Require Monit'oring . . . . . . . . 4 II. The ASLB Did Not Misinterpret NRC Requirements in Requiring LILCO to Estimate the Number of Persons Who May Seek Monitoring After a Shoreham Accident. . . . . - . . . . . . . . . . . . . 14 III. The Waterford Decision Does Not Make Erroneous the ASLB's Finding that LILCO's Plan is Deficient. .. . . . . . . . . . . . . . . . . . . . 18 IV. Conclusion . . . . .. . . . . . . . . . . . . . . . 20
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o LADMINISTRATIVE' DECISIONS-Louisiana Posdr & Light Co.-
.(Waterford Steam Elec. Station,
- - Unit ' 3 ) , . ALAB-732, .17 NRC 1076 - (1983 ) .
. . . . .. .2, 3, - 19, 2 0 -'
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UNPUBLISHED SHOREHAM ORDERS Memorandu'm and-Order (Reopening of the Record)
(May 6~, 1985). . .- . .' 1 . . . . . . . . . . . . . . 5, 8, 16 r
- Memorandum and, Order Ruling on Motion _of-Suffolk. County and State-of New York t 3'
for-Recon' sideration'and Other Relief E
( June ;1.0, 1985 ) . . . . .. . . . . . . .- . . ... . . .8 REGULATIONS 10'CFR-S~2.762. . ,. .. . . . . . . . . . .. .- . . .. . . . . 1
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. NUREG:0654. . . . . . . '15, 16, 20 q.
NUREG 0654,-Section.II.J.12 . . . . . ..i. . . . . . . .3, 14, 15, 20 s.
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t' UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board
)
In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3
)- (Emergency Planning (Sho.reham Nuclear Power ) Proceeding)
Station, Unit 1) ).
)
)
.SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON .
BRIEF IN OPPOSITION TO LILCO'S BRIEF ON THE RELOCATION CENTER ISSUES On October 7, 1985, LILCO served its brief on appeal of the Licensing Board's August 26, 1985 Concluding Partial Initial-Decision on Emergency Planning ("CPID"). See LILCO's Brief on-the Relocation Center Issues, October-7, 1985 (the "LILCO
~Brief"). Pursuant'to 10 CFR S 2.762, Suffolk County, the State
'of New York, and the Town of Southampton (" Appellees") submit this brief in opposition to the LILCO. appeal.
LILCO objects to the ASLB's finding that the LILCO Plan is
~ defective for failing.to estimate the number of evacuees who-might report to the Nassau Coliseum for radiation monitoring
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(and, if necessary, for decontamination), even though they do not seek to be sheltered. LILCO argues that this issue is outside the scope of the admitted contenticas and that there is no regulatory requirement that LILCO prepare such an estimate.
LILCO Brief at 1. LILCO also objects to the ASLB's finding that LILCO failed to provide sufficient information about the size and available facilities at the Nassau Coliseum to enable the ASLB to assess whether the Coliseum would be adequate as the reception center for evacuees after a Shoreham accident. LILCO asserts that this ASLB finding seeks too much detail, and thus violates Louisiana Power & Light Co. (Waterford Steam Elec. Station, Unit 3), ALAB-732, 17 NRC 1076, 1107 (1983). LILCO Brief at 29.
Appellees demonstrate below that LILCO is wrong on both issues. Contrary to LILCO's assertion, the admitted relocation center contentions did raise the issue of whether LILCO has planned adequately to handle evacuees anticipated to arrive at a reception center following a Shoreham accident. The issue was raised during the original relocation center hearing (i.e. during 1984) and again during the reopened proceeding (in June 1985),
thus providing LILCO notice of what it needed to prove. LILCO also is wrong in asserting that there is no regulatory requirement that it estimate the number of evacuees who may seek monitoring and decontamination. NUREG 0654 requires that LILCO be " capable of monitoring within about a 12-hour period all l residents and transients in the plume exposure EPZ arriving at l
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relocation centers." NUREG 0654,Section II.J.12 (emphasis added). In the absence of an estimate of the number of persons likely to arrive at the Coliseum for monitoring, there could be ono basis for a finding that LILCO satisfies that NUREG 0654 requirement.
Similarly, LILCO is wrong in suggesting that the ASLB could ignore identified deficiencies in its relocation center plans.
The ASLB found -- and in its brief LILCO does not dispute (see LILCO Brief at 29) -- that: (a) LILCO failed to establish any factual basis to conclude that the Nassau Coliseum is adequate to serve as a relocation center (CPID at 12); (b) LILCO failed to specify how it could process the anticipated number of evacuees given the size of, and facilities available at the Nassau Coliseum'(CPID at 12-13); and (c) LILCO failed to specify (i) how the Red Cross would register uncontaminated persons, or (ii) how monitoring records would be maintained for evacuees arriving at the Coliseum. (CPID at 14-15). FEMA's witnesses agreed that these failures constituted defects in the LILCO Plan. See CPID at 12, 14. The Waterford decision provides no basis or justification for-the ASLB to ignore or to sanction such acknowledged defects. Accordingly, LILCO's appeal should be dismissed.
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I. The ASLB Correctly Found that the Relocation Center Contentions Include the Issue of the Need for LILCO to Estimate the Number of Perzons Who Would Require Monitoring LILCO argues at length that none of the admitted contentions specifically allege the need for LILCO to estimate the number of evacuees who may arrive at a relocation center for monitoring (as opposed to those only seeking shelter). LILCO Brief at 14-18.
This argument ignores the wording and the history of the relocation center contentions and their litigation.
First, LILCO is wrong in suggesting that the admitted contentions do not allege a deficiency in LILCO's planning for evacuees who may arrive at a reception / relocation center seeking radiological monitoring but not housing or shelter. See LILCO Brief at 15. Contention'24.0 alleges a failure b:' LILCO to arrange relocation centers for " anticipated evacuees." Persons who would arrive at the Nassau Coliseum for monitoring and decontamination certainly constitute " anticipated evacuees,"
particularly since LILCO itself stated that it will direct "all evacuees" to report to the reception center at the Coliseum.
Affidavit of Elaine D. Robinson, ff. Tr. 15,870, Att. 3 at 2. It is both logical and " anticipated" that evacuees who flee the EPZ and fear that they have been exposed to harmful radiation would go to the one and only publicized location where their potential exposure could be checked.
Furthermore, LILCO was on notice that in the reopened proceeding the ASLB construed Cont'ention 24.0 as raising the issue of the functional adequacy of Nassau Coliseum to serve as a reception center. Thus, in its May 6, 1985, Memorandum and Order, the ASLB stated (at page 3): " Inherent in admitting Contention 24.0 for litigation is the-issue of whether the designated facility is functionally adequate to accomplish the purpose set forth in the contention. The purpose is to adequately accommodate the anticipated number of general evacuees." Accord, Tr. 15,843-44 (Margulies). LILCO never objected to the ASLB's construction of this contention.
What could be more germane to the functional adequacy question than an estimate of the number of persons who may show up for the monitoring and decontamination services to be provided at the Coliseum? If that number is unknown, no decisionmaker could possibly reach a conclusion as to whether the Coliseum is an adequate facility to accomplish its purpose -- that is, "to adequately accommodate the anticipated number of evacuees" by providing the necessary monitoring and decontamination services.
LILCO urges, however, that "[t]he people ' anticipated' to show up.are those who need shelter." LILCO Brief at 15. This LILCO attempt to limit the definition of " evacuees" referenced in Contention 24.0 just to persons in need of housing is wholly unjustified. LILCO states no basis for such an arbitrary and 4
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artificial definition. Moreover, the testimony of LILCO's own witness demonstrates that the attempted definitional argumeht in the LILCO Brief is without basis. According to Mr. Weismantle,
'in the event of an emergency involving a particulate release, LILCO "would advise those who would have been subject to possible contamination to go to the shelter -- excuse me -- the reception center first for monitoring and decontamination, but if there has been no release or if there has been a release that clearly was a gaseous release, it would only be those people who needed shelter who.would go to the reception center and be processed through there." Tr. 14,828 (Weismantle). Thus, LILCO's own witness admitted that after a particulate release, LILCO's personnel at the reception center must anticipate the need to monitor
" anticipated evacuees" who do not need shelter. Similarly, the FEMA witness also testified that there is a potential for evacuees not requiring shelter to be directed to the reception center for monitoring. Tr. 14,168 (Keller). See also Tr. 15,995 (Keller). In view of the statements by Messrs. Weismantle and Keller, LILCO clearly has no basis to argue its limited definition of " anticipated evacuees," or to suggest that there is no factual support for Appellees' assertion that evacuees seeking only monitoring would arrive at a reception center and could be substantial in number. .
Second, in arguing that the retocation center contentions do not specifically allege the need to estimate the number of persons who may require monitoring, LILCO also ignores the history of those contentions. At first, LILCO planned to use Suffolk County Community College and other facilities close to the EPZ for all relocation purposes, i.e., for monitoring, decontamination, and sheltering. As this Board is aware, however, LILCO's " plans" for relocation centers have changed repeatedly since Spring 1984. See CPID at 4-5. It was not until after the record closed in August 1984 that LILCO first idt.4tified the Coliseum as a proposed reception center, where only monitoring and decontamination services, but not sheltering, vould be provided. Id. at 5. Despite the repeated fundamental changes in LILCO's relocation plans, however, the relocation center contentions were .ot amended.1 Thus, rather than require Appellees to revise the contentions to address the specifics of each new LILCO scheme, as testimony was submitted on each one, and even during the August 1984 hearing on relocation center issues, both the ASLB and the parties construed the existing contentions to cover whatever scheme LILCO relied upon at that particular time to demonstrate compliance with the NRC's regulations. Given the continuous changes in LILCO's schemes, l
other admitted contentions were amended in January 1984 to reflect changes in LILCO'a Plan made through Revision 3, which appeared in late 1983. LILCO did not begin to alter its designation of relocation centers, however, until June 1984, so the relocation center contentions were not amended in January.
Indeed, while LILCO kept changing its relocation schemes, it did not formally amend its Plan until very recently, after the reopened proceeding had ended.
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therefore', it is completely understandable why specific deficiencies in LILCO's use of the Coliseum are not specified in
-the contentions.2 Third,.LILCO's complaint that it was surprised by the ASLB's
. ruling.against it in the CPID, arguing that the ASLB had excluded
.the monitoring issue from the litigation and thus that LILCO had not received. fair notice that the issue was part of the litigation _(see LILCO Brief at 14), is also incorrt :t. Although some of the.ASLB's rulings were not without ambiguity,3 the fact
, is that the issue of LILCO's capability to monitor at a designated facility more than the 32,000 persons who may seek shelter was properly b& fore the ASLB for decision. And, LILCO was well aware of it. The following facts make this clear:
t During the original emergency planning hearing in
= August 1984,~ Appellees questioned LILCO's capability to handle the task of monitoring more than the.32,000 people LILCO estimated might seek shelter. Thus, as noted above, LILCO's own witness, Mr. Weismantle, testified that all evacuees who may have 2
For a more detailed history-of the relocation center contentions, the-Board's attention is directed to the brief filed November 6 by Appellees on appeal of the CPID. See Suffolk County,-_ State'of New York, and Town of Southampton Brief on '
l Appeal of Licensing' Board August 26, 1985, Concluding Partial Initial Decision on Emergency Planning (hereafter, " November 6
'Brief"), especially pp.'4-16.
In the brief filed November 6, for example, Appellees pointed out that the Margulies ASLB's May 6, and June 10, 1985 Orders were irrational in many respects. See November 6 Brief, at 32-53.
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-been exposed, not just those requiring shelter, would be directed
'to the reception center for monitoring. And in the Proposed Findings of the State and County filed October 26, 1984, Appellees urged the ASLB to find as.follows:
-We recognize that LILCO's witnesses estimated.that the maximum number of persons who would use relocation centers would be approximately 32,000 persons, and that the facilities with which the Nassau Red Cross purportedly has agreements [later referred to as the
" congregate care" facilities).have an aggregate capacity of roughly 48,000 persons. Cordaro et al., ff. Tr.
14,707, at 18-23. They also stated, however, that although the Red Cross has considered whether there is adequate parking, living space, food facilities, toilets and showers, most of~the facilities do not meet all the considerations. Id., at 22-25.
Furthermore, FEMAr s witnesses testified that reception centers should have the capacity to process the ec cire population of the EPZ in the event that a widespread,-radioactive release occurs (see Tr. 14,164,114,168 (Keller)) and the County's witnesses testified as to several public health requirements of reception or relocation centers, including.the capability of safely collecting,' storing, or disposing of contaminated and uncontaminated wastes.
Harris and Mayer, ff. Tr. 9574, at 27-
- 28. These concerns raised by FEMA.and the County, which were not addressed by LILCO,-further support our finding for Intervenors on Contention 75.
Inte venors Proposed Findings, at 431, 1642 (footnote omitted; emphasis added).
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On June 25, 1985, counsel for the State and County specifically argued before the ASLB that LILCO's 32,000 person planning basis was inadequate because it failed to account for persons who might seek monitoring and decontamination but not.
need shelter. See Tr. 15,971-76. While the ASLB appeared initially to uphold an objection to inquiry of witnesses on that subject-(see Tr. 15,975, line 11 through 15,976, line 4), the ASLB then permitted counsel to inquire into the matter. See
.Tr. 15,976, lines 9-20. The next day, June 26,- the questioning of FEMA's witnesses focused on LILCO's planning basis and the ASLB again rejected LILCO's efforts to cut off the inquiry:
Q Gentlemen, would you agree with me Lthat in the event of a radioactive release at the Shoreham Plant, LILCO would have to have~the capability of monitoring and, if necessary, decontaminating all evacuees?
MR. CHRISTMAN: Objection. .We are now into the issue of the planning basis, the number of expected, anticipated evacuees, and that is outside the scope of this hearing.
MR. MILLER: Judge Margulies, my
-question is very relevant to this hearing. The hearing is to decide the adequacy of the Nassau Coliseum. To my knowledge, the Nassau Coliseum is the sole facility being relied upon by LILCO to monitor and decontaminate evacuees.
My question to these gentlemen is, is it fair to say LILCO must demonstrate a capability to be able to monitor and decontaminate all evacuees in the event of a radioactive release at Shoreham?
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(Panel confers.)
JUDGE MARGULIES: Objection overruled.
WITNESS KELLER: The guidance, the criteria upon which we evaluate the, plan for acceptability is J12N0654. That guidance says that the entities--in this
. case,Eit would,be LILCO--must--should be able to monitor all the evacuees who arrive at a relocation center within about a 12-hour period. That may not be exactly'what you asked, but that's the guidance.
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.Q. And in this case, Mr. Keller, you construe the guidance of NUREG 0654 to require LILCO to have the capability of monitoring all evacuees who would report to'the Nassau Coliseum for monitoring and decontamination. Is that correct?.
WITNESS KELLER: That's correct.
Q Under the guidance of NUREG 0654, there is no definition as to the number of evacuees that may have to be monitored. It's simply those evacuees who report for monitoring and decontamination.
MR. CHRISTMAN: Objection. Same as before. He'is delving into.the issue already litigated,.the planning basis of the number of evacuees.
' JUDGE MARGULIES: Objection overruled.
- WITNESS KELLER: Your statement is correct.
Tr. 15,994-96~. These rulings by the ASLB made clear that it construed the relocation center contentions and the issues before it for decision more broadly than LILCO. If LILCO had wished an
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O opportunity to present evidence to respond to the questions asked by Appellees or to fill the new " void" in the record highlighted by Appellees' cross examination, it should have said so.4
-- In their proposed findings submitted on July 15, 1985,5 Appelleas again made clear that LILCO had failed to demonstrate the adequacy of Nassau Coliseum. Thus, in Proposed Finding 25 (pages 27-28), Appellees asked the ASLB to find as follows:
Finally, we fin'd LILCO's testimony regarding the number of evacuees expected to report to the Nassau Coliseum for monitoring and decontamination to be unrealistic and suspect. Although acknowledging that a full evacuation of the Shoreham EPZ would require the evacuation of 160,000 persons (Tr. 15,969 (Robinson)), and notwithstanding LILCO's' intent to direct all evacuees to the Coliseum (Robinson, ff. Tr. 15,870, Att. 3), LILCO asserted at trial that it has planned for no more than 32,000 persons to report to the Coliseum for monitoring and decontamination. Tr. 15,976 (Robinson).
As noted above, this figure is the number previously estimated by LILCO to be likely in need of sheltering services, not monitoring and 4
During the emergency planning proceeding, the ASLB established a rule that any party could seek leave to present rebuttal evidence by so moving promptly after the parties' direct cases on each issue had been presented. LILCO was, of course, familiar with this rule and received permission to present rebuttal evidence on many occasions. LILCO made no effort, however, to present data on the issue of how many evacuees would seek monitoring at the Coliseum, even though it had clearly been raised by Appellees.
Thus, LILCO's argument (LILCO Brief at 21-22) that it had no opportunity to present such evidence is simply wrong.
Suffolk County and State of New York Proposed Findings of Fact and Conclusions of Law on Reopened Relocation Center Issues.
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decontamination. See Intervenors' Proposed: Findings, 1 642, and citations therein. We find LILCO's confusion between the number of evacuees likely to.
seek shelter (see, e.g.,.LILCO Brief, at.3-4) -- clearly a subset.of all evacuees.who would require monitoring ---
and those'who would be advised to report
- for monitoring and decontamination to be
. disingenuous._ . Clearly, a monitoring and decontamination facility for Shoreham, as noted by FEMA, must have the-capability to process the entire EPZ population, since in a serious accident involving an offsite release, the potential for exposure could-be widespread. See Intervenors' Proposed Findings, 1 642 and citations therein; Tr. 15,995-96 (Keller). It is clear to Eus that the Nassau Coliseum does not have the capability to handle 160,000 persons. We find that LILCO, in attempting to obscure this issue by confusing sheltering needs with monitoring / decontamination'needs, has reached the same conclusion.
Nonetheless, LILCO has based its Plan cut the unrealistic assumption that only 32,000 persons will require C monitoring / decontamination services. We find'this to be a serious deficiency of the LILCO Plan.
(e phasis in original). In response to the foregoing Proposed
" Finding,-LILCO asserted only that the matter was " irrelevant to Lthe reopened 11ssue. The potential number of evacuees has already been 11tigated."6 Clearly, LILCO's earlier erroneous belief that the issue was " irrelevant" cannot, as LILCO has attempted, be magically transformed into a " lack of notice." In view of the prior evidence on the matter' expressly referenced in Appellees' l0LILCO's Reply Findings on Reopened Contention 24.0 (Nassau Coliseum), July 26, 1985, at 8.
October 1984LFindings and the questioning and evidence elicited during theLJune 1985 trial, LILCO's lack of notice argument must be re'ected.7 j ,
II. The ASLB'Did Not Misinterpret NRC' Requirements in Requiring LILCO to-Estimate the Number of Persons Who May. Seek Monitoring After a Shoreham Accident'
.LILCO urges that the-ASLB must be reversed because there is no regulatory requirement that LILCO estimate the number of persons who may seek radiological monitoring at the Nassau Coliseum following an accident at Shoreham. LILCO'is wrong.
'A plan must " describe the means for registering and monitoring of evacuees at relocation centers-in host areas. The personnel and equipment should be. capable of monitoring within -
about a 12-hour period all residents and transients in the plume exposure EPZ arriving at relocation centers." NUREG 0654 i II.J.12'(emphasisfadded). This requirement is clearly not limited to just-those persons from.the EPZ who have.no place to go and thus need housing or shelter. Rather, by its. express terms, this requirement specifies that the utility must be able to monitor within about 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> all persons from the plume EPZ 7
Furthermore,-LILCO's attempt to argue before the Appeal Board (LILCO Brief at 22) that it has planned adequately for a larger number of evacuees is entirely improper. Those arguments and' evidence were never introduced at trial nor= urged by LILCO before l- the ASLB. Indeed, Revision 5 of the LILCO Plan, which LILCO references at page 22 of its Brief, has never been introduced into evidence'and.thus is not even part of the record that can be relied upon.
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( v who arrive at the center.8 Common sense-dictates that there is no means for LILCO, the ASLB, or anyone else to know whether the 12-hour regulatory target can be met without a reliable estimate of-how many people may show up. ,
In-a tortured exercise in purported logic, LILCO argues that Lthe NUREG 0654 5 II.J.12 requirement means only that a licensee
- must be able.to monitor those persons who seek temporary housing following an accident. See LILCO Brief at 24. But, LILCO cannot escape the plain words of NUREG 0654; a utility must be able to monitor those persons who arrive at the center. See also Tr.
15,995 (Keller); 14,828 (Weismantle). What would LILCO do with persons who arrive at the Nassau Coliseum, demand to be monitored, but.do not request shelter? Would LILCO refuse to provide radiation monitorfng to them? Of course not, particularly since LILCO personnel would have directed those evacuees to the Nassau Coliseum for monitoring in the first place. See Tr. 14,828 (Weismantle). Those people would have to be monitored, and an' adequate amount of space, facilities, equipment, and personnel would be necessary to accomplish that monitoring within the regulatory standards. Again, common sense dictates that an influx of evacuees expecting to be monitored --
Contrary to LILCO's assertion (LILCO Brief at 24-25), the FEMA testimony does not support LILCO's position that.there is no requirement for LILCO to be prepared for evacuees who do not need shelter. In fact, FEMA's witness testified that NUREG 0654 requires "LILCO to have the. capability of monitoring all evacuees who would report to the Nassau Coliseum for monitoring and
. decontamination." Tr. 15,995 (Keller).
if not planned for -- could make the proposed reception center inadequate for its intended purposes and could prevent LILCO from complying with the requirements of NUREG 0654. The ASLB was absolutely right in recognizing these facts, and in finding LILCO's plan and its evidence deficient in ignoring them.9 In a transparent effort to bolster its argument that the ASLB's ruling is not required by the regulations, LILCO asserts that it is "probably impossible to estimate the number of people who.might be monitored in an actual emergency." LILCO Brief a.t
- 26. Thus, LILCO concludes, the ASLB's requirement that it derive such estimates is " irrational." Id. LILCO's bald assertion is mere speculation, supported by no affidavit or facts; the conclusion is a baseless non sequitur. More important, however, this " impossibility" argument is a factual one that is properly addressed to the ASLB on remand, not to the Appeal Board.
Appellees note that they strongly disagree with the suggestion that reliable estimates could not be derived with respect to monitoring, just as LILCO did with respect to'those who may seek shelter. Further, just as time estimates were derived for different evacuation scenarios (based in part on estimated Contention 24.0, as construed by the ASLB, focussed on the functional adequacy of the Nassau Coliseum to serve as the reception center for anticipated evacuees. See ASLB Memorandum and Order, May 6, 1985; Tr. 15,844 (Board). The ASLB properly found that it could not assess the Coliseum's adequacy unless it, were provided with a reliable estimate of how many people might actually have to be processed at the Coliseum. See.CPID at 9-10, 12-13.
m anticipated numbers of evacuees),-'there clearly are similar means of deriving estimates of how many people might seek to be monitored.10 LILCO also' asks that this Board find 1that its planning basis. ,
-- 32,000 persons would seek _ shelter -- is sufficiently conservative "to cover, in most cases," both persons seeking shelter and also those seeking monitoring only. LILCO Brief at
- 28. This Board cannot accept LILCO's unfounded assertion, nor can.it'nak'e the factual finding LILCO seeks.
As the'ASLB found:
evenl assuming that 32,000 is an acceptable planning basis for-those who would seek shelter,11 LILCO has never. attempted to estimate how many would show up at the Coliseum to be monitored.
LILCO has no basis except for pure speculation to assert that the 32,000 number overs both groups. Certainly, as the ASLB found, there is no basis in the evidentiary record for making any finding as to the anticipated number of evacuees who would seek monitoring at the Coliseum. 'In such a factual and evidentiary lO Such estimates might rely on' survey data which, contrary to LILCO's assertion.(LILCO Brief at 27), are valuable. Further, health officials have data on how many people seek health assistance after disasters. From use of such' varied' sources, reliable estimates -- certainly something far better than LILCO's complete lack of estimates -- could be derived.
LILCO asserts that 32,000 is a very conservative estimate of those who might seek shelter because it assumes a complete EPZ evacuation. See LILCO Brief at 28. Appellees do not consider
-32,000 conservative. The relevant population is not only persons who originate within the EPZ, but also the thousands of persons who-may originate outside-the EPZ but pass through it in attempting to escape:from a Shoreham disaster. When these
. persons also are considered, the 32,000 number represents the minimum number that may need shelter.
. vacuum, the ASLB acted appropriately in ruling against LILCO.
.This Appeal Board cannot reverse that. ruling by making a factual finding with no-basis in the record.
III. The Waterford Decision Does Not Make Erroneous the ASLB's Finding that LILCO's Plan is Deficient n
Finally, LILCO objects to the ASLB's findings that:
(a) LILCO failed to establish any factual basis to conclude that the- Nassau Coliseum is adequate to serve as a relocation center; (b)'LILCO failed to specify how it could process and provide necessary monitoring and decontamination services for the anticipated number of. evacuees given the size of, and facilities available at the Coliseum; and (c) LILCO failed to specify (i) how the Red Cross would register uncontaminated persons, or (ii) how-monitoring records would be maintained for evacuees arriving at the Coliseum. CPID at 12-15; see LILCO Brief at 29. LILCO's objections should be summarily rejected.12 e
12 LILCO asserts that "to the extent this finding means that there is inadequate detail about how LILCO plans to handle more than 32,000 people, the finding is subject to the same two flaws argued above." LILCO Brief at 29. LILCO is presumably referring 1
.to :its arguments that the monitoring issue is not raised by the
. contentions and there is no regulatory requirement to estimate how many people may seek to be monitored. Appellees have already
, demonstrated that LILCO is wrong on both counts.
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- LILCO's1 objection, comprising in its-entirety four sentences intits Brief, is' based upon a twisted reading of the.Waterford decision.13 In this case, the ASLB was presented'with
- .uncontroverted testimony by FEMA that the identified LILCO failures of proof constitute defects in LILCO's Plan. E.g.,
Tr.'16,039.(Keller, Baldwin); Baldwin et al., ff. Tr. 12,174, at 42.14 -There was.no basis upon which the ASLB could ignore those w.
defects; indeed, to have done so would have been a clear violation of the ASLB's own obligations under the regulations.
.The.ASLB can only make findings of adequacy and compliance with regulatory requirements based;on evidence of record. In light of'
'LILCO's failure to present the evidence necessary to support a
. finding of regulatory compliance, the ASLB had no choice but to find,Tas.it did, that LILCO's Plan is defective.
Furthermore, Waterford held that it was not necessary for all implementing procedures to be available at the time of hearing. 17 NRC'at 1107. The-ASLB's findings in this case had nothing to do with the existence or availability of implementing procedures. Rather, the ASLB faced a " general. insufficiency of detail" -(Tr. 16,039 (Keller)) regarding the size and facilities available at the Coliseum, and.that lack of information made the ASLB unable to determine whether the Coliseum could adequately
- 3'g,,. Louisiana Power & Light Co. (Waterford Steam Elec.
. Station,. Unit 3), ALAB-732, 17 NRC 1076, 1107 (1983).
14 0n this appeal, LILCO does not contest at all that the identified failures constitute defects in the Plan.
a~
accommodate the anticipated number of evacuees seeking monitoring and 4acontamination. See CPID at 12. Similarly, the lack of data concerning registration and monitoring records does not involve some obscure detail but, rather, relates to the express NUREG 0654 requirement that LILCO " describe the means for registering . . . evacuees at relocation centers . . . ."
NUREG 0654, 5 II.J.12 (emphasis added). Clearly, the LILCO failures of proof identified by the ASLB are substantially different in kind from the incomplete implementing procedures involved in Waterford. This LILCO objection must be rejected.
IV. Conclusion For the foregoing reasons, LILCO's appeal should be dismissed.
Respectfully submitted, Martin Bradley Ashgre Suffolk County A -
H. Lee Dennison I _. u..g Veterans Memorial Highway Hauppauge, New York 11788 7
^
HerbgrtH. Br h' Lawrence Coe npher Karla; J. Let he KIRKHATRICK & LOCKHART 1900 M Street, N.W.
Washington, D.C. 20036 Attorneys for Suffolk County Fabian G. Palomino Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Robert Abrams Attorney General of the State of New York Two World Trade Center New York,.New York 10047 Attorneys for Governor Mario M.
Cuomo and the State of New York i
/
/Ste @ n B. Latham "
f Twosey, Latham & Shea P.O. Box 398 33 West Second Street Riverhead, New York 11901 Attorney for the Town of
_ Southampton November 12, 1985 l
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
-Before the Atomic Safety and Licensing Appeal Board
)
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 TOWN OF SOUTHAMPTON BRIEF IN OPPOSITION TO LILCO'S BRIEF ON THE RELOCATION CENTER ISSUES have been served on the following this 12th day of November, 1985, by U.S. mail, first class.
Alan S. Rosenthal, Chairman Stuart Diamond Atomic Safety and Licensing Business / Financial Appeal Board NEW YORK TIMES U.S. Nuclear Regulatory Commission 229 W. 43rd Street Washington, D.C. 20555 New York, New York 10036 Mr. Howard A. Wilber Joel Blau, Esq.
Atomic. Safety and Licensing New York Public Service Comm.
Appeal Board The Governor Nelson A.
U.S. Nuclear Regulatory Commission Rockefeller Building Washington, D.C. 20555 Empire State Plaza Albany, New York 12223 Mr. Gary J. Edles Stewart M. Glass, Esq.
Atomic Safety and Licensing Regional Counsel Appeal Board Federal Emergency Management U.S. Nuclear Regulatory Commission . Agency Washington, D.C. 20555 26 Federal Plaza New York, New York 10278
n -
Morton B. Margulies, Chairman Anthony F. Earley, Esq.
Atomic Safety and Licensing Board General Counsel U.S. Nuclear Regulatory Commission Long Island Lighting Company Washington, D.C. 20555 250 Old Country Road Mineola, New York 11501 Dr. Jerry R. Kline W. Taylor Reveley III, Esq.
Atomic Safety and Licensing Board Hunton & Williams U.S. Nuclear Regulatory Commission P.O. Box 1535 Washington, D.C. 20555 707 East Main Street Richmond, Virginia 23212 Mr. Frederick J. Shon Mr. Jay Dunkleberger Atomic Safety and Licensing Board New York State Energy Office U.S. Nuclear Regulatory Commission Agency Building 2 Washington, D.C. 20555 Empire State Plaza Albany, New York 12223 ir . L. F. Britt Stephen B. Latham, Esq.
Long Island Lighting Company Twomey, Latham a Shea Shoreham Nuclear Power Station P.O. Box 398 P.O. Box 628 33 West Second Street North Country Road Riverhead, New York 11901 Wading River, New York 11792 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 Ms. Donna D. Duer Hon. Peter Cohalan Atomic Safety and Licensing Suffolk County Executive Board Panel H. Lee Dennison Building U.S. Nuclear Regulatory Comm. Veterans Memorial Highway Washington, D.C. 20555 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 Martin Bradley Ashare, Esq. Jonathan D. Feinberg Ecq.
Suffolk County Attorney Staff Counsel, New York State H. Lee Dennisen Building Public Service Commission Veterans Memorial Highway 3 Rockefeller Plaza Hauppauge, New York 11788 Albany, New York 12223 L
.- ..o !
Atomic-Safety and Licensing Atomic Safety and Licensing Board Panel Appeal Board U.S. Nuclear Regulatory Comm. U.S. Nuclear Regulatory Comm.
Washington, D.C. 20555 Washington, D.C. 20555 Edwin J. Reis, Esq. Fabian G. Palomino, Esq.
Bernard M. Bordenick, Esq. Special Counsel to the Governor U.S.. Nuclear Regulatory Comm. Executive Chamber, Room'229 Washington, D.C. 20555 State Capitol Albany, New York 12224 Spence Perry, Esq. Mary Gundrum, Esq.
Associate General Counsel New York State Department Federal Emergency Management Agency of Law Washington, D.C. 20471 2 World Trade Center, Rm. 4614 New York, New York 10047 Mr. William Rogers
-Clerk Suffolk County Legislature Suffolk County Legislature Office Building Veterans Memorial Highway Hauppauge, New York 11788
~
/ 1
/ *'/ /
A L% ' 71 Karla J. Letsbhe KIRKPATRICK q LOCKHART 1900 M Street, N.W., Suite 800 Washington, D.C. 20036 Date: November 12, 1985 o
e a