ML20206J735
| ML20206J735 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 11/08/1988 |
| From: | Bachmann R NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#488-7543 LBP-88-13, OL-3, NUDOCS 8811290097 | |
| Download: ML20206J735 (13) | |
Text
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UNITED STATES OF AfiEP.ICA NUCLEAR REGULATORY COMMISSION TS i:CV 22 All:56 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of l
LONG ISLAND LIGHTING CCMPANY Docket No. 50-322-OL-3 (Emergency Planning)
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(Shoreham Nuclear Pcwer Station, Unit 1) j O
NRC STAFF RESPONSE TO LILC0'S REPORT TO THE APPEAL BOARD AND RESPONSE TO INTERVENORS' MOTION FOR SUPPARY REJECTI0t: OF UNAUTHORIZED PLEADING t
Richard G Bachmann Counsel for NRC Staff Noverber 8, 1988 G8110'/0007 00j 100 (UR A DU('M O '>O 0()
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r UNITED STATES OF AliERICA NUCLEAR REGULATORY COMMISSI!iN BEFORE THE ATOMIC SAFETY AND LICEf{ SING APPEAL BOARD In the Matter of LONG ISLAND LIGHTING COMPANY Docket No. 50-322-OL-3 (ShorehamNuclearPowerStation, Ur.it 1)
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NRC STAFF RESPONSE TO LILCO'S REPORT TO THE APPEAL BOARD AND RESP 0tlSE TO INTERVENORS' MOTION FOR SUMPARY REJECTIOP: OF UNAUTHORIZED PLEADING j
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i Richard G. Bachmann l
Counsel for NRC Staff J
t November 8, 1988 i
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c 11/08/09 UNITED STATES OF AMERICA NUCLEAR REGULATORY 00MMISSION BEF0PE_THEATOMICSAFETYAND,J.ICENSINGAPPEALBOARD In the Matter of LONG ISLAND LIGHTING COMPANY Docket No. 50-322-OL-3
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(Emergency Planning)
(Shoreham Nuclear Pewer Station, l
Unit 1) j f:RC STAFF RESPONSE TO LILCO'S REPORT TO THE APPEAL i-L BOARD AND RESPONSE TO INTERVENORS' MOTIO!:
FOR
SUMMARY
REJECTION OF UNA'JTHORIZE0 PLEADING I.
INTRODUCTION On October 21, 1980, LIl.00 filed its "Raport to the Appeal Poard on the Progress end Effect of the Town of Hempstead Case" ("Report"), which contains its further corrents on the Sapterrber 20, 1988 judgment in T,cwn of Hemps _tead v. Long Island, Lighting Co,.
Index No. 23779/87 (N.Y. Sup.
Ct. Aug. 22, 1980).
The New York State ccurt judgment implemented the court's August 22, 1988 decision which halv that use of LILCO's Bellmore l
facility as a reception center worild violate the Town of Hempstead's zoning ordinance as to pemitted uses.
In its Report, LILCO urges the Appeal Board to either (1) rule that the Town _of Hempstead judgmer.t is imaterial to e.tergency planoinn issues based on Article 2-B of the New York Executive Law and the "realistn" principle of 10 C.F.R. I 50.47(c)(1); or (2) rule that the judgrent has not been properly raised as an issue in this proceeding. Report i
at 1-2.
Intervenors filed their "Governments' Motion for Sumary Rejection of Unauthorized Pleading.or, in the Alternative, 'or Procedural Guidance"
("Motion") on October PS,1968.
Intervenors noved tnis Board to sumarily
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-E-4 reject LILCO's Report as unauthorized and untirely, or, if the Report is accepted, to provide guidance on when to respond tu the Rapert and on what -
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issues. Motion at 1, 4-5.
On October 25, 1988,.the Appeal Board issued an Order pemitting responses by Intervenors and the Staff to LILCO's Report. The Staff herewith f
respcnds to both the Report and the Motion M and' supports LILCO's position to the extent that the Town uf Hempsteed judgeent does not materially alter the Licensing Board's decision on the reception center issue, as set forth in its "Partial Initial Decit ion on Suitability of Peception Centers" ("PID"),
i LBP48-13, 27 NRC 509 (1988).
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'i.
II. BACKGROUND f
The relevant dates concerning zoning issues and LILCO's reception i
i centers which preceded the August 22, 1988 Town of Hempstead decision are set forth by the Licensing Board in its PID. LBP-88-13, 27 NRC at 564-67. Aftar j
reciting the chronology related to zoning issues, the Licensing Board l
acknowledged that the Tcwn of Hempstead had filed suit on August 14, 1987, to j
enjoin LILCO from using the Be11nore facility as a reception center. Ld.at 565.
The Board stated that "[i]n the event a Court decision is made that is I
edverse to LILCO's positier., the subject can be brought to the Board's t
attention by any party with the filing cf proper motions under the Comissien's Rules of Practice."
J,d. at 567.
The Board also noted that a I
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.=
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Inasmuch as the issues raised in LILCO's Report and Intervenors' Motion 1
are intertwin6!, this response addresses both filings.
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New York State court decision "may impact" the reception center issue, but since the "dimensions of any such impact" were not before the Board, it would a
not speculate in that regard. M.
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E/ ntervenors submitted to the Appeal I
By letter dated August 25, 1988 Board a copy of the Town of Hempstead decisien.
Intervenors urged that, in f
'ight of the court's ruling, the Licensing Bourd's PID should be vacated, and the proceeding held in abeyonce pending LILCO's submi, i of a new plan for the reception centers.
August 25 letter at 3.
Intervenors stated that the) would be prepared to addrass issues raised by the ruling at the oral argumer.t on Intervenors' appeal of LBP-88-13, scheduled for September 14, 1988.
M.
Intervenors also indicated that they were willing to brief the issues if the i
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Appeel Board believed it appropriate. M.
In its "Answer to Suffolk County's Letter Motion of August 25"
("Answer"), filed August 30, 1988, LILCO responded to Intervenors' lecter.
l opposing vacating the PID acd holding the proceeding in abeyarce. EI LILCO l
pointed out that the issues on appeal still needed to be decided regardless
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of the court decision.
Answer at 1-2.
LILCO also argued that it could
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comply with federal guidance without the Bellmore facility, that a "best j
efforts" response and New York State law would override the decision, that the state litication was not over since the court had r.ot entered a judgrent i
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Letter from David T. Case, Counsel for Suffolk County, to the Appeal I
Board, August 28, 1988.
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LILC O also had s u btitted a copy of the Town of Hempstead decision (letter from James N. Christman to the AppcT853rd, dated August 25, I
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i 1988).
LILCO made no comment as to the potential impact of the decision on the reception center proceeding.
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t granting specific relief, and that it could apply for an amendment to its special use parmit for Bellmore.
Id. at 2-3.
By letter dated August 31,1998,$/ the Staff responded to Intervenors,
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opposing both vacating the PID and addressing the issue of the zoning 1
decision at the oral argument. Staff letter at 1.
The Staff referred to the Licensing Board's directions that the court's decision should be brought to the Board's attention by the filing of "proper motfuns."
M.
The Staff argued that Intervenors should be required to file a motion to reopen the record with the Appeal Board 5/ pursuant to 10 C.F.R. I 2.734, and that Interveners had not corplied with the provisions of that section.
M. at 1-2.
At the oral argument before the Appeal Board on September 14, 1988, counsel for Intervenors, LILCO and the Staff addressed the Town of Hempstead decision.
Tr. 4-9, 25-35, 66-75, 78-84, 88-91.
The Appeal Board suggested that it was obligated to recognize the state court decision without reouiring Interver.crs to file a motion to recpen the record.
Tr. 26 (Mr. Rosenthal).
The Beard also proposed a possible order to the Licensing Board to deal with the decision, including obtaining additional information as to any order entered by the state ecurt es a result of the decision.
Tr. 73 (Fr. Rosenthal).
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Letter from Richard G. Bachmann, Counsel for N RC Staff, to the Appeal 4
Board, August 31, 1988.
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Jurisdiction to rule on such rnotions to reopen rests with the Appeal Board once appeals have been filed.
Metropolitan Edison _ Co. (T hree Mik Island Nuclear Station, U nit N o. IT,~ A L A B -699, 16 NRC 1324, 1326-27(1982).
-S-By letter dated September 22,1988,5/ LILCO submitted the September 16, 1988 judgment entered in the Town of Hempstead case.
LILCO stated that it was evaluating the judgment and intended to report to the Appeal Board on "whether.it appears to affect the use of the Ce11more facility in a real emergency, the issues before this appeal board, or the treatment M the Bellmore facility in the Shorehm en,ergency plan and procedures."
As noted above, LILC0 filed its Report on October 21, 1988, and Interveners filed their Motion on October 25, 1986.
III. DISCUSSION s
A.
The Appeal Board Should Deny Intervenors' Motion for Sunmary Rele,ction of LILCO's Report In their Motion, Intervenors argue that LILCO's Report is not a "report," but rather a "full-blewn brief" (Motion at 2), and as such is unauthori:cd. Motion at 3.
Interveners cite 10 C.F.R. 96 2.762(b) and (c) as authority for their assertions.
,Ld.
In view of the Appeal Board's October 25, 1988 Order, which invited Intervenors and the Staff to respend to LILCO's Report, Intervenors' Motion is apparently moot. O Nevertheless, given the posture, both procedural end substantive, of the reception certer issue, the Report is not an "unauthorized pleading."
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Letter from Donald p.
Irwin and James N.
C hristman to the Appeal Board, September 22, 1988.
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Tt.;. Staff notes that the Order and the Motion were both filed on the 7
same day.
It is probable that Intervenors were unaware of the Order at the time the Motion was filed.
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The Town of Hempstead Judprent Does Not Faterially Alter the Licensir.g Board's Decision on the_ Reception Center Issue The import of LILCO's Report is that the Town of Hempstead_ judgment does not materf ally affect the Licensing Board's decision in LBP-88-13, and further proceedings to determine the impact of the judgment are not necessary. Report at 2.
To support its position. LILCO advances two arguments: (1) that the Bellmore facility would be available in a real energency based on the "realism" principle and LILCO's ability to provide decentamination showers (Report at 2, 5); E/ and (0) that even without the Bellmore facility, LILCO meets the applicable licensing requirements and repelatory guidance. Ld.at7.
With regard to the "realism" argument, there is no question that 10 C.F.p.
! 50.47(c) compels the conclusien that in the event of a real emergency at Shoreham the Bellmore facility could be used for monitoring ev?cuees.
As recognized by the Appeal Board at the September 14, 1988 oral argument, the real issue is the effect the removal of the decontamination trailer and its associated connections would have on LILCO's ability to decontaninate evacuees. Tr. PP Nr. Moore). LILCO has set forth alternative solutions:
reving a trailer (with a portable generator) to Pe11more at the time of an accident, providing portable showers which can be stored on or offsite, expanding the existing restroem facilities, or requesting an 8/
LIL C O also notes that N U R E G-0654 does not req uire decontamination showers.
Re sort at 4-5.
In light of FEM A's testimony at the hearing
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that "[g]ood iealth physics practice would indicate that decontamination of any contaminated evacuees would be done as soon as is feasible" (FEMA Ex hibit 2 at 7), it may be assumed that some form of decontamination facilities would need to be provided.
. - -. - - - - _. - _ amendment to the special use pemit for Bellmore.
Report at 5.
Under the "realism" principle, the NRC may rely on State and local governments to "eyercise their best efforts to protect the health end safety of the public."
However, each of LILCO's proposed alternative soittions appears to raise a series of factual issues rega rc'ing the feasibility cnd adequacy of the solution.
Accordingly, the Appeal Board should not at this time rule, as reo,uested by -LILCO, that the "realism" principle per se makes the Town of Hempstead judgrrent imaterial.
However, on the other hsnd, Litt0's argument (Report at 7-8), raised as part of its second request, that LUP-M-13 is not materially affected by the Town of Hempstead decision because the reraatning two reception centers have sufficient capacity to absorb evacuees previously destined for the Bellmore facility, has validity ard is supported by the present record i n
'.h i s proceeding.
The Licensing Board determined that the capacity of the receptfori centers deperded on the tsonitoring rate, and,qot on traffic patterns or the capacity ci' the road systen.
LBP-88-13, 27 NRC at 539-40.
i The Board also stated tnet it found no fault with LYLCO's figures on monitoring capacity.
I_d. et 560-61.
Intervenors did not appeal any of the traffic issues or tne monitorir9 capacities decided by the Licensing Board.
See Suffolk Ceunty, State cf New York and Town of Scuthanpton Brief on Appeal of the Licensing Board's May 9,1988 httial Initial Decision on Suitability of Reception Centers, dated June 10, 1988.
Unless the Appeal Board determines upon a sua sponte review to isverse the Licensing Board in these areas, the Licensing Board's detemination is binding.
LILCO has provided the figures on monitoring capacities referred to by tre Licensino Pnard.
report at 7-8 n.6.
The Beard noted LILCO's estimations
_ _ _ _ _ _ - - _ _ _ _ _ _ _ - _ _ _ _ _ _ _ on hourly vehicle capacity (1152 at Hicksville, 5:3 at Roslyn, 540 at Bellmore) and provided a detailed explanation as to why the figures are reasonable.
LBP-88-13, 27 NRC at 531-33, 550-63.
Using LILCO's assumption of 2.8 persons / vehicle (LILCO Exhibit 1 at 42; 27 NRC at 553), it is simple arithmetic to arrive at the ' number of people who can be processed at each facility in a 12-hour period:
38,707 at Hicksville,19,354 tt Roslyn and 18.144 at Bellmore.
See Report at 8 n.6.
Given the EPZ population of j
160,000 people (27 NRC at 513), the percentages that can be processed in l
twelve hours at each facility are:
24% at Hicksville, 12% at Roslyn and 11.
j at Bellmore.
Hicksville and Roslyn alone are capable of monitoring 36%.
It is clear that even without the Bellmore facility, LILCO would be able to monitor 36% of the EPZ population in twelve hours. This is considerably more f
than the 2B of the EPZ pepulatier which the Licensing Board determined is the maximum number for whom monitoring rust he provided.
LBP-88-13, 27 NRC at 522-24.
As noted above, traMic is not a problem except in the imediate f
vicinity of the rec'otion centers.
It is the rate at which persons can be I
monitored, and not the movement of vehicles approaching the reception centers i
that governs the capacity of the centers.
LBP-88-13, 27 NRC at 539-40.
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If the Appeal Board sustains the Licensing Board on these matters, it is i
l net necessary to reopen the record and convene a proceeding to hear the Bellmore issue The record already establishes tnat a materially different result would no. 3 had as there is sufficiert monitoring capacity whether or not the Be11rore facility is available.
No new issue would be presented for litigation.
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-9 IV.
CONCLUSION Sir.ce the Town of Hempstep,d, decision does not materf ally affect the Licensing Board's Partial Initial Decision, LBP-88-13, no further proceedings are necessary.
Respectfully subr.itted.
0 Richard G. Bachmann Counsel for NRC Staff Dated at Rockville Paryland on this 8th day of November 1988
UNITED STATES OF AMERICA
' N[
NUCLEAR REGULATORY C0FFISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOAi@ NOV 22 A In the Matter of l
LONG ISLAND LIGHTING COMPANY Docket No. 50-322-OL-3' A'
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(EP-ReceptionCenters)
(ShorehamNuclearPcwerStation, Urit 1)
CERTIFICATEOLSERVICE 1 hereby certify that copies of "NRC STAFF RESPONSE TO LILCO'S REPORT TO THE APPEAL BOARD AND RESPONSE TO INTERVENORS' MOTION FOR
SUMMARY
REJECTION OF UNAUTHORIZED PLEADING" 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 deposit in the Nuclear Regulatory Comissien's internal mail systen, or as indicated by double asterisk by facsimile, this 8th day of November 1988.
Thomas S. Mnore Esq., Chairman **
Jerry R. Kline.*
Adninistratise Judge Adninistrative. Jroge Atomic Safety and Licensing Appeal Atomic Safety and Licensing Board Board U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, CC 20555 Philip McIntire Alan S. Rosenthal. Esq.**
Federal Energency Management Administrative Judge Agency Atomic Safety and Licensing Appeal 26 Federal Plaza Board Room 1349 U.S. Nuclear Regulatory Commission New York, NY 10278 Washington, DC 20555 Joel Blau. Director Howard A. Wilber**
l'tility Intervention Administrative Judge Suite 1020 Atemic Safety and Licensing Appeal 99 Pashington Avenue Board Albany, NY 12210 U.S. Nuclear Regulatory Cornission Washington, DC 20555 Jonathan D. Feinberg, Esq.
New York State Department of James P. Gleason, Esq., Chairman
- Public Service Administrative Judge Three Empire State Plaza Atenic Safety and Licensing Board Albany, NY 12223 U.S. Nuclear Regulatory Comission Washington, DC 20555 James N. Christman, Esq.
Donald P. Irwin, Esq.
Frederick J. Shon*
Hunton & Williams Administrative Judge 707 East Main Street Atomic Safety and Licensing Board P.O. Box 1535 U.S. huclear Regulatory Comission Richmond, VA 23212 Washington, DC 20555
- - - - - - -. - - - - - - - - - - - - _ _ _ _ _.. Stephen B. Latham, Esq.
Alfred L. Nardelli, Esq.
Twceey, Lathani & Shea New York State Dept. of Law Attorneys at Law 120 Broadway, Room 3-118 33 West Second Street New York, NY 10271 Riverhead NY 11901 Jay Dunkleberger Martin Bradley Ashare, Esq.
New York State Energy Office Suffolk County Attorney Agency Building 2 H. Lee Dennison Building Em) ire State Plaza Veteran's Memorial Highway A1)any, NY 12223 Hauppeuge, NY 11788 Fabian G. Palomino, Esq.
Anthony F. Earley, Jr.
Special Counsel to the Governor General Counsel Executive Chamber Long Island Lighting Company State Capitol 175 East Old Country Road Albany, NY 12224 Hicksville, NY 11801 Ms. Nora Bredes Dr. Monroe Schneider Shoreham Opponents Coalition
- f. orth Shore Corriittee 195 East Main Street P.O. Box 231 Smithtown, NY 11787 Wading River, NY 11792 Earbara Newran Filliam R. Curriing Esq.
Director, Environmental Health Office of General Counsel Coalition for Safe Living Federal Emergency Management Agency
%x 944 500 C Street, SW Huntington, New Yrok 11743 Washir.gton, DC 2047I Atomic Safety and Licensing Dr. Robert Hoffman Appeal Panel (8)*
Long Is1r.rd Coalition for Safe Living U.S. Nuclear Reguletery Corrission P.O. Box 1355 Washington, DC 20555 Massapequa, NY 11758 Atomic Safety and Licensing Herbert H. Drown, Esc.
Board Panel (1)*
Lawrence Coe Lanpher, Esq.
U.S. Nuclear Regulatory Comission Karla J. Letsche Esq.
Washingter., DC 20555 Kirkpatrick & Lockhart South Lobby - 9th Floor Docketing and Service Section*
1800 M Street, NW Office of the Secretary Washington, DC 20036-58g1 U.S. Nuclear Regulatory Comission Washington, DC 20555 C. K. Mallory, III, Eso.
Hunton & Williams 2000 Pennsylvania Ave., N.W.
i Suite 9000 Washington, DC 20006
/> a Richard G. Bachmann' Counsel for NRC Staff