ML20206M860
| ML20206M860 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 11/21/1988 |
| From: | Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20206M853 | List: |
| References | |
| ALAB-903, OL-5, NUDOCS 8812020038 | |
| Download: ML20206M860 (22) | |
Text
. LILCO, N v:mber 21,1984 4
[ ',A.k L Fl?
~ .. e UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'88 WJV 23 Pl?.:30 Before the Atomic Safety and Licensing Board I( );
in the Matter of )
)
LONO ISLAND LIGi{TINO COMPANY ) Docket No. 50-322-OL-5R
) (EP Exercise)
(Shoreham Nuclear Power Station, )
Unit 1) )
LILCO'S MOTION TO DISMISS EXERCISE CONTENTIONS 4-20 ON THE BASIS OF ALAB-903 On October 24, pursuant to the Board's October 12 scheduling order, Intervenors filed 20 contentions, spanning 104 pages, on the June 7-9,1988 emergency preparedness exercise at Shoreham. Each of those contentions (other than Contention 3, which chal-lenges FEMA's objectivity in exercise evaluation) alleges that various aspec':, of that exercise revealed one or more "fundamental flaws" in the offsite emergency plan for Shoreham. On November 3, pursuant to the Board's October 12 Order, LILCO responded to those contentions; on November 8 the Staff responded. The October 12 Order af-forded Intervenors the last word, permitting them the opportunity to reply to those re-sponses by November 15.
On November 10, the Appeal Board issued ALAB-903 in a clear attempt to pro-vide timely guidance to aid in expediting this litigation. ALAB-903, a partial decision on the appeal from the 1986 Shoreham exercise, is directed entirely to clarification of the term "fundamental flaw." which establishes the pleading threshold for any litigation on emergency preparedness exercise. While ALAB-903 derives entirely from existing Commission law, it eliminates certain potential ambiguities in the definition of a funda-mental flaw. ALAB-903 has been the definitive statement of Commission law on the 8912O20030 001121 DR ADOCK 050 2
"fundamental flaw" test since its issuance on November 10. As shown in more detail below,Intervenors' October 24 contentions 4 through 20 do not satisfy it.
Counsel for Intervenors had an opportunity to take timely steps under the Com-mission's Rules of Practice to address the effect of ALAB-903 on their contentions, if they wished to modify them. Intervenors'special November 15 opportunity for conten-tion replies furnithed an unmistakable opportunity to do so. They did no' take that op-portunity: their November 15 response, all 205 pages of it, specifically excludes discus-sion of the effect of ALAB-903. Nor have they taken any other steps available under the Rules of Practice (%, timely filing of amended contentions or of a motion re-questing a stated period to revise their contentions).
Instead,Intervenors took a different course: the very day AI.AB-903 was issued, one of Suffolk County's counsel, Sir. Miller, telephoned the Board ex parte in an at-tempt, according to his Novtmber 15 letter covering Intervenors' contention replies, to schedule a conference of counsel to discuss the effect of the decision. As Mr. Miller's letter indirectly concedes, the Board properly refused to deal with the request by tele-phone.M However,Intervenors have now chosen to treat the Board's response as,in ef-feet, granting them relief in the form of an extension until the November 22 prehearing conference of any obligation even to consider how to address the effect of ALAB-903, much less addressing that effect.
Intervenors' construction of the effect of their ex parte . quest is untenable.
There is no Board order granting the relief they now claim Further, the means chosen by Intervenors to seek it - an ex parte telephone call on a matter obviously likely to be contested - were improper, and the relief assumed by them to have been granted - an 1/ Mr. Miller's letter concedes that the Board merely indicated that matters relating to ALAB-903 would be placed on the agenda for the prehearing conference, and does not suggest anywhere that the Board implicitly agreed to defer any obligations that might otherwise exist.
unnecessary delay of at least two weeks in revising contentions - is highly prejudicial to LILCO in a proceeding which every level of this agency, from the Commission on down, has commanded to be expedited.
Accordingly, LILCO requests two forms of relief. First, LILCO moves to dismiss contentions 4 through 20 concerning the June I-9,1988 Shoreham emergency prepared-ness exercise, filed by Intervenors on October 24, 1988, on the ground that those con-tentions fall to meet the threshold pleading requirements for contentions on exercises, as definitively clarified on November 10 by the Appeal Board in ALAB-903.
Second, LILCO moves that Intervenors be held to have waived any right to amend their contentions in response to ALAB-903 for failure to have sought in timely and proper fashion to do so. Permitting them to delay until the prehearing conference to commence the process of considering such untimely modifications would be highly prejudicial to LILCO, and their attempt to use the Board's nonresponsive answer to an improper ex parte request constitutes less a basis for relief than cause for sanction.
I. Intervenors' October 24 Contentions 4 through 20 Are Insufficient as a Pleading Matter Under ALAB-903 A. ALAB-903 Establishes a High Burden for Exercise Contentions in LILCO's Response to Intervenors' exercise contentions, LILCO applied the definition of fundamental flaw" adopted by this Board in LBP-88-2. See LILCO's Re-sponse to 1988 Exercise Contentions at 3 (Nov. 3,1988).2# The Appeal Board has now 2/ In litigating the 1986 Shoreham exercise, LILCO had offered a three part test to determine whether a contention alleged a fundamental flaw: (1) Would the alleged flaw have substantially affected the health and safety of the public? (2) Was the alleged problem systemic or pervasive, rather than merely one or more isolated problems oc-curring on the exercise day? And (3) Was the alleged deficiency readily correctable, or did it require substantial, potentially far-reaching revision of the Plan? Leg LILCO's Brief on Appeal from the February 1,1988 Partial Initial Decision on the Emergency Planning Exercise at 10-11 (Mar.14,1988). The Licensing Board essentially accepted the first two parts of LILCO's test but rejected the third, Id. at 17t ALAB-903,5110 op. _
at 5-6. The Appeal Board has now adopted the third part as well.
i
- 4 established, in ALAB"903,28 NRC (November 10, 1988), an authoritative defini-tion of "fundamental flaw" to be used in litigation of the 1988 exercise. ALAB-903 es- [
/ ;
sentially adopts LILCO's original "fundamental flaw" test, and elaborates on the showings required for an exercise contention to be admissible.
ALAB-903 articulates a two-part test for determining whether an exercise con-4 tention alleges a fundamental flaw. First, the contention must allege "a failure of an 1 ' !
essential element of the [offsite emergency) plan." Second, the contention must al- '
lege that the failure "can be remedied only through a significant revision of the plan." '
ALAB-903, sligJo . at 6. This test is an extremely difficult one for exercise contentions 3
to satisfy, especially in a case like this one, where the contentions come at 'he end of a i
) six-year long emergency planning proceeding and in the face of a Deficiency-free i l i FEMA evaluation. i l The first element of the test, that a contention must allege a "failure of an es- f i
1 sential element of the plan",is really made up of two parts. As a threshold matter, the (
i j subject matter of the contention must involve an "essential element" of the emergency l l
plan. Second, the contention must also allege a "failure" of that element. The Appeal l l l Board stated that the "essential element" determination is made by reference to the 16 l
, emergency planning standards in 10 C.F.R. S 50.47(b) and the requirements of 10 C.F.R. f i Part 50, Appendix E. SJ11 2 J o . at 7. This criterion is relatively easy to satisfy. The sec- !
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ond criterion, however, is not. The contention must allege a "failure" of an essential l element; "minor or isolated problems on the day of the exercise do not constitute fun-damental flaws in the emergency plan." M. FEM A "deficiencies do not necessarily re-veal fundamental flaws in a plan. Deficiencies that alone do not constitute fundamen- l l
tal flaws might collectively do so, but only if "they are pervasive and show a pattern of l
related or repeated f ailurcs associated with a partleular essential element of the plan." I M. (emphasis added). ;
i I
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_3_
The Appeal Board specified additional Jtandards that particular types of allega-tions must meet. If an exercise contention alleges some kind of delay "JA, a failure to meet the time estimates on which the plan is premised - the delay must be substan-tial and thus likely to have affected the protective action recommendations in an actu-al emergency." S!!o og. at 7. If the deficiency alleged by a contention is the result of a particular person's f ailure to follow the plan,"such deficiency is not a fundamental flaw unless that person performs a critical role under the plan and there is no backup struc-ture or provision that would mitigate the effects of the individual's f ailure." M.M By the terms of these tests, contentions alleging delay and individual failure face an al-most insurmountable pleading standard.
The second part of the Appeal Board's test is probably even harder to satisfy than the first. An exercise contention must allege, on its face and with adequate spe- l cificity and basis, that the alleged failure "can be remedied only through a significant revision of the plan." Sllo 03. at 6. The contention must allege that the plan itself "mus ' be reassessed and reconceived to a significant extent in order to prevent such a f ailure in the future." Id. at 8. Where the alleged deficiency can be readily corrected, it is not a fundamental flaw. M.
Clearly, an exercise contention must satisfy _bott} parts of this fundamental flaw test at the pleading stare. As the Appeal Board noted, Any contention alleging that an exercise revealed a funda-mental flaw in the emergency plan must address bott} of these factors in order to satisfy the Commission's recuirement thaj "the basis for each contention [ bel set forth with reasonable specifletty." 10 C.F.R. SS 2.714(b).
F The Appeal Board noted that "due to the inevitably large number of and turnover in emergency personnel expected during the life of an operating license, undue atten-tion should not be devoted to the performance during the exercise of any one individu-al." S110 op, at 8 n.7.
l t
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- j j lila 92. at 9 (emphasis added). The test must be satis!!ed within the four corners of the [
contentionst the Intervenors cannot wait for discovery to flesh them out. These plead-
}
i 4
i ing requirements are reasonable because exercise contentions "arise very late in the .
I j proceeding", and there is "substantially more information available" upon which to base '
i them. M. Well-focused, concrete contentions are essentialin exercise litigation. M.
Finally, as LILCO argued in its objections and the Appeal Board confirmed in ALAB-903, FEMA's findings in its Post-Exercise Assessment must be given deference at i the contention admissibility stage: !
!! FEMA has found no Deficiencies or assigned a less severe i rating to a problem revealed by the exercise, an intervenor l seeking the admission of contentions that allege a fundamen- :
tal flaw has a more difficult task . . . l ALAB-903, slig 92, at 12. Thus, although Intervenors are free to offer exercise conten- !
I tions, they face a higher admissibility standard if they challenge a Deficiency-free j FEMA Post-Exercise Assessment. Of course, FEMA assigned no Deficiencies in its evaluation of the Shoreham exercise.
For the reasons set forth in greater detail below, Intervenors' contentions 4 through 20 f all on their face to satisfy the high pleading standards of ALAB-903. All of t i
them f all to allege with sufficient basis and specific 1*y a f ailure in an essential element l
of the LILCO plan. None of them alleges that the identified defic!ency can be remedied "only through a significant revision of the plan."SI And while numerous of them contend that the FEMA Post-Exercise Assessment should be ignored, none of j them attempts to explain why it should be.EI Accordingly, the Board should dismiss 3/ Under ALAB-903,"the second factor reoutres consideration of how the failure in the plan, as revealed by the exercise, can be corrected." SJim 99, at 8 (emphasis added).
Nowhere in contentions 4-20 is this consideration addressed. The contentions should be dismissed for this reason alone.
1/ Neither the contentions nor Intervenors' Response addresses this requirement.
In fact,Intervenors' Response states that "the FEMA conclusions are entitled to D9 def-crence at this stage of the proceeding " Response at 114.
l l
l Contendons 4-20 at the threshold.
B. QR-903 Makes it Clear that Contentions 4-20 Are inadmissible :
I
. For the reasons given in its Response to 1988 Exercise Contentions (November 3 j 1988) (hereinaf ter "LILCO Response") at 23-72, LILCO believes that contentions 4-20 are inadmissible even absent ALAB-903. In short, the purported bases that intervenors ;
provide for their exercise contentions are nothing more than an undifferentiated as- l sortment of minor, unrelated performance problems that, even Lt substantiated,0# do l
i not reveal any flaws in the LERO Plan itself that would have had a material effect on l l public health and safety,
)
i The Appeal Board's decision in ALAB-903 underscores and confirms that conten- f 1 I tions 4-20 are facially insuffielent to plead a demonstration of a "fundamental flaw"in :
[ the Shoreham offsite emergency plan. In three principal respects, ALAB-903's guld- l l anee demonstrates that contentiens 4-20 should be summarily rejected.
(1) Intervenors Fall to Allege that a "Significant
]
Revision of the LERO Plan is Required :
t As is noted in part A above, perhaps the most dif ficult part of the Appeal Board's
- test to satisfy is its requirement that, to be admitted for litigation, a contention must I t
! allege that the emergency plan itself "must be reassessed and reconceived to a signif t- i I i cant extent" in order to correct the alleged inadequacy in exercise performance. Even [
a cursory examination of contentions 4-20 reveals that Intervenors have f ailed com- (
j pletely to address this crucial f actor in JLrly of those contentions.
)
, I i f/ As LILCO noted throughout its Response, many of Intervenors' allegations are !
- demonstrably inaccurate, are directly contradicted by the FEMA Report (or by exerci.se 1 documents already in Intervenors' possession) or, in some instances, simply reveal Inter- i l
j venors' apparent misunderstanding about how portions of the LERO Plan are supposed ,
j to work. ,
i L I ;
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1 For example, in contention 4 Intervenors allege that the exercise revealed that LILCO is "incapable of ' interfacing' promptly and effectively with State and local gov-ernments." Contentions at 19. Yet nowhere in contention 4 do Intervenors argue that the "Suffolk County Interf ace Procedure" (OPIP 3.1.1., Attachmect 10 of the LERO Plan), or any uther procedure or provision of the Plan, must be substantively revised in any way in order to correct the problem that Intervenors perceive.
Similarly, in contention 5, Intervenors assert that "LILCO is incapable of imple- ,
menting prompt notification to the public " Contentions at 27, but do not allege that i
any of the portions of the LERO Plan would have to be revised in order to rettedy the supposed problem. For instance, Intervenors do not allege (nor can they, plausibl;') that the aJ hoc mechanical malfunction observed in sona of the sirens on the first day of the exercise can only be corrected through a significa'it "reassessment" of the i.ILCO Prompt Notification System itself.I Intervenors' complete f ailure to address this prong of ALAB-903's two part test
- is the common denomit.ator of contentions 4-20. It is unnecessary to review each con-
] tention in turn here; intervenors' contentions speak for themselves. Contentions 4-20,
, i on their f ace, do not consider the extent to which the LERO Plan would have to be re-Visce, reassessed, and reconceived in order to correct the exercise ptoblems which In-il i
tervenors have alleged in those contentions. For that reason alone, contentions 4-20 !
! should be rejected. l i
i i
i 1/ As it turns out, the malfunction involved a matter of steen activation timing l which was readily remediable by practice, and which has not posed a problem in any of l the five subsequent siren tests. Activation rates in all subsequent tests have averaged ;
over 97% The only reason the sirens had not been activated before June 1988 was i
based on an apprehension that stren testing would be criticized as a usurpation of gov-ernmental authority. In any event, stren f unctioning was a Phase ! issue, in which In- ;
tervenors' only contention was resolved by settlement of "Phase 1" Contention 3A. l 1
t . l
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i i (2) Intervenors Fall to Address Why Their Alleged Protnems, I Collectively Considered. Demonstrate a Fundamental Flaw l
l In addition, contentions 4-20 do not satisfy the first element of the Appeal !
! r Board's test, the requirement that a contention allege a significant failure (as opposed (
]
! to a minor or aJ het problem) in an essential element of the emergency plan. Interve- !
nors' contentions fall to meet this standard because, while the contentions purport to l l identify numerous exercise-related problems and inadequacies, none of the contentions !
l provides any reasons why the alleged problems it recites, collectively considered, would l (if true) demonstrate a f ailure in an essential element of the LERO Plan, i !
j intervenors themselves tacitly admit that their contentions f all to moet this [
l i j standard. Throughout their objections to contentions 4-20, both LILCO and the Staff l I
5 argued that Intervenors' tactic was to string together, in prolix "bases" for the conten-
{
tions, a series of essentially unrelated exercise performance problems that did not, as a f I whole, demonstrate a fu; 27 ental flaw in any single element of the LERO Plan. Inter-t i venors, in addressing this objection in their RespoNe, complain that !
LILCO and the Staff continually urge this Board to masce ad- [
missibility decisions in the context of deciding whether a par- e ticular basis of a contention in and of itself, would (if proven) establish a fundamental flaw.
Response at 6. Iratervenors then assert that "(s]uch practice is unacceptable; the law l 1
l !s clear that the proper focus is whether the bases to a co.itention, considered individu-i ally gr collectively, establish a fundamental flaw." Id. at 6-7 (emphasis in original).
With the issuance of ALAB-903, however, it is evident that it is Intervenors who are i t
wrong in their characterization of the applicable law. The Appeal Board has made it f l i
clear that exercise related problems that i t
alone would not constitute a fundamental flaw . . . can be I considered collectively, orovided they are pervasive and show (
a pattern of related or repeated f ailures associated with a ,
j oarticullir essential element of the plan. '
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ALAB-903, slip op, at 7 (emphasis added). By f alling to allege that the various problems cited in contentions 4-20 reflect a D ttern of related failures in a single element of the LERO Plan,intervenors fail to satisfy this standard.
For example, in contention 5. Intervenors assert that the exercise demonstrated LILCO's inability to provide prompt notification to the public. The solo bases"Interve-nors provide for this contention, however, are: (1) the mechanical f ailures of some si-rens; (2) LERO's dechion (in conformity with the excrelse scenario) to dispatch Route Alert Drivers in response to three "simulated" Siren f ailures rather than the actual f ati-ures; (3) LERO's alleged untimeliness in broadcasting certain EBS messages; and (4) cer-tain minor problems obcerved with deaf notification performed by Route Alert Drivers dispatched from one of three Staging Areas. Intervenors do not allege (nor can they, plausibly) that these purported problems are part of a pattern or that they reflect a failure in a singig element of the LERO Plan.
Similarly, in contention 14, Intervenors allege that the exercise demonsated that a fundamental flaw exists in "LILCO's Plan for schools," Contentions at 83, by linking together such plainly unrelatGo problems as: (1) an alleged absence of instrue-tional packets at some bus yattist (2) the decision by a handful of LERO school bus driv-ers to deviate somewhat from their assigned evacuation routes;(3) an absence of radios in some buses; and (4) minor "inaccuracles" in maps provided to some drivers.
It would be needlessly repetitious to reexamine here each of Intervenors' conten-tions 4-20 in order to demonstrate that each fails to satisfy the first prong of ALAB-903's two part test. LILCO, for all practical purposes, anticipated that aspect of the Appeal B ard's test in its Response and dem" Itrated why none of the purported "bases" of Intervenors contentions, collectively considered, properly allege a pattern of failure that demonstrates a fundamental flaw.I On that additional basis, contentions 4-20 1/ Interrenors themselves seem to recognize that their contentions are f acially de-fective when, in their Response, they find it necessary to explain why it is "clear" that (footnote continued)
.it.
should be dismissed.
(3) Intervenots Fall to Addrums FEMA's Findings, Which Are Entitled te Presumptive Weirht Finally, contentions 4-20 should be rejected because nowhere in any of those contentions do Intervenors address FEMN's overall findings - in which it found no Deficiencies and only a few ARCAs in LERO's performance - with respect to the vart-ous emergency functions and activities at issue in each contention.II As noted in part A above, in the f ace cf a FEM A finding of no Deficiencies, an "intervenor seeking the ad-mission of contentions that allege a fundamental flaw has a more diffleult task," al-though it cannot be precluded altogether from offering such a contention. ALAB-903, slip op at 12 (emphasis added). ALAB-903 thus estab!!shes a higher threshold for con-tention admissibility in areas where FEMA has found no Deficiencies, a threshold that Intervenors, who do not even address FEMA's specific findings in their individual con-tentions,N plainly f all to overcorde.
(footnote continued) each of their contentions 4-20 describe problems which, if true, would preclude a rea-sonable assurance finding. See Response at 11-13. Intervenors indicate t' tat their Re- .
sponse is intended to provide "more detail as to why the problem, if shown to be true, precludes a reasonable assurance finding, i.e., constitutes a fundantental flaw." [q. at 11 n.10. It goes without saying, of course, that intervenors cannot, through their reply to objections, supplement and thereby correct the threshold pleading inadequacles in their contentions. The contentions must be -cad as written.
1/ Intervenors do ette extensively to the FEMA Report throughout their contentions in order to extract instances where FEMA noted one problem or another in LERO's per-formance. As LILCO pointed out in its Response, however, Intervenors' citations are invariably misleading and selective in that they ignore the fact that, with respect to each emergency activity (as reflected in the FEMA Objective), FEMA's overall finding was f averable.
1Q/ In contention 3. Intervenors argue that FEMA's overall finding of reasonable as-surance based on LERO's exercise performance is "groundless and should be given no weight by the Board." Contentions at 15. As LILCO pointed out in its Response, con-tention 3 should be rejected as an inappropriate ad hominem attack on FEMA's objec-tively in grading LERO's performance.
} l .
LILCO, on the other hand, argued specifically in its Response, filed before ALAB-903 was issued, that one "reasott why Intervenors are unable to f came admissible contentions is that they have failed to overecme the deference that is due FEMA find-l 1 ings." LILCO Response at 5. LILCO then pointed out, in objecting to each individual contention, how Intervenors had simply ignored FEMA's positive findings concerning i
LERO's performance. See g&, LILCO Response at 28,30,31,34,38,42,48,52,54,59, 60,62,64,65,66, 68, and 71.
Significantly, in their Response, filed gLtte ALAB-903 was issued, Intervenors continue to maintain that "the FEMA conclusions are entitled to no deference at this stage of the proceeding." Response at 114. This position has been specifically repudi-ated by ALAB-903. Intervenors' f ailure to address at the threshold why FEM A's findings concerning the adequacy of LERO's performance should not be given presumptive l weight provides a further reason to reject contentions 4-20.
j !!. Intervenors Have Walved Any R12ht To Modify
{ Their Contentions To Account For ALAB-903 1
l ALAB-903 has been the operative statement of Commission law on the meaning
! of the term "fundamental flaw" since its issuance on November 10. It governs any sub-sequent decision on the admissibility of any emergency planning exercise contention.
I Thus if Intervenors' October 24 contentions are deficient, which LILCO believes is the I
caso with respect to mntentions 4 through 20. Under the standards of ALAB 903, those contentions must all be rejected even 15, prior to ALAB-903, they would have been ac-ceptable.
Intervenors knew of ALAB-903 in f act on November 10 since they contacted this Board that day with respect to it. Letter, Michael S. Miller to John H. Frye. !!!, et al.,
? November 11.1983. *,' hey also realized as of November 10 that ALAti 903 had "poten-tial . . . to impact" thi disposition of their October 24 contentions. L4. Yet Interve-nors have failed at all imes since November 10 either to amend their contentions in light of ALAB-903 or to let to preserve any right they might have had to do so.
l i
On November 15, thev had a. opportunity to respond to LILCO's and the NRC Staff's objections to theb October 24 contentions.UI But in their 205 pages of rebuttal to LILCO's ar.d the Staff's criticisms (in which they do not, apparently, concede the va-lidity of any criticisms of their contentions), they utterl} fall to deal with ALAB-903, despite their knowledge of it and its potentialimpact.
Nor at any time since November 10 have they filed amended contentions, indi-cated their intent to do so, or sought leave to do so by motion.
Intervenors' sole response to ALAB-903 has been to contact the Board by tele-phone on November 10, ex carte, to request a conference call to provide "guidanec" on dealing with ALAB-903.N/ The Board's response apparently was to refuse the ex carte request and state that the matter would be dealt with at the prehearing conference.
l Stiller letter at 2. That periectly proper response was not, of course, an ex parte grant !
to intervenors of an extention of time to protect their interests. Nor has the Board is- r
- sued any order or otherwise acted to alter the obligations of parties to act timely to !
protect their interests. j t
Str. 51111er's November 15 !ctter indicates that Intervenors "will be prepared to ,
s i discuss" the effect of ALAB-903 on their contentions at the November 22 prehearing '
l
,l conference. Id. at 2. If this means, and is restricted to, a merits argument on the issue f of the effect of ALAB-903 on Intervenors' contentions as currently filed, LILCO does !
j not object; as is indicated above, LILCO believes that under ALAB-903 contentions 4 [
through 20 are deficient and must be rejected. )
! i j
i j M/ This opportunity is not provided for under the regulations, and the Staff opposed l 4
granting it to Intervenors. LILCO did not oppose it. In the hope that it wottid serve to t i focus and perhaps narrow areas of disagreement. l i
M/ LILCO's sole source of information on Intervenors' November 10 contact with !
, the Board is Alt. 51111er's November 15 letter, i
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14 However, Imrvenors may have a different scenario in mind: since they have taken no othea 'e' of record to date to revise their contentions, they may contem-plate the dis - iovember 22 as one in which the Board will set a schedule for them to rev' .tentions by some future date, thereby triggering another round of objectioru a ,,onses and leading to another Drehearing conference several weeks hence, where the revised contentions would finally be ruled on.
Intervenors' apparent view is wrong. Any contention revision p"rsuant to ALAB-90J would be a late-filed contention under the Commission's regulations and this Board's October 3 prehearing conference order.
The Commission's regulations require that contentions be filed at least 15 days l
i prior to the holding of the first prehearing conference in a proceeding. 10 C.F.R.
l l S 2.714(aX1), (b).E/ Any contention filed or aulended thereaf ter is a late-filed conten-i
! tion whose admissibility is subjt t to the five part balancing test of 10 C.F.R.
S 2.714(a)(1).E Thus, even if ene assumes that the November 22 prehearing confer-ence is the first one in this "proceeding," any contentions or revisions filed af ter November 8 would have to pass muster under that test.
M/ The Rules of Practice provide that, where a proceeding is being convened pursu-ant to a notice of hearing, a special prenearing conference he held within 90 days thereaf ter, and that contentions be filed at least 15 days before that conference.
10 C.F.R. SS 2.714(b),2.751a. No special notice of hearing has bael; issued for this pro-l ceeding.
i M/ The Staff argues forcefully, in its opposition to Intervenors' October 24 conten-tions, that all of Intervenors' current contentions are definitionally late-filed conten-tions in this proceeding, which began many years ego, and that they must be justified under the five part balancing test of 10 C.F.R. 5 2.714(a)(1). LILCO agrees with the Staff. And even if this Board's scheduling erders may be thought of as generally strik-ing the balancing in f avor of contentions filed by October 24, that order certainly does not address contentions or amendments to them filed later than that date.
Revisions by Inte venors ta their contentions to account for ALAB-903 would not satisfy the test of S 2.714(a)(1), as is demonstrated below:
(1) Good cause. If any, for f ailure to file on time: Intervenors could not have re-vised their contentions to account for ALAB-903 before its issuance on November 10.
But they were aware in fact on November 10 of ALAB-903, and the Appeal Board plainly accelerated completion of ALAB-903 to make it of use in this proceeding. Id. at 3-4. Thus, it would have been appropriate for Intervenors to have promptly indicated their desire to revise their contentions based on a changed perception of the effective law, and then to have set about effecting revisions, justifying those changes under 5 2.714(a)(1). However, that was not their course. Instead, they immediately called this Board ex parte, unsuccessfully sought its "duidance," and now seek to construe the Board's refusalinto a tolling of their obligation to act.E At no time have Intervenors taken any steps to actually advance this proceeding in light of ALAB-903, as distin-guished from taking steps that lead to delay. Instead, they have ;1pered the record with 205 more pages of reflexive replies to LILCO's and the Staff's responses to their contentions, conceding not a single point argued by LILCO or the Staff.E It scarcely needs repetition that this proceeding is intended to be an expedited one, and that there is neither need nor intrinsic virtue in permitting Intervenors again to impose the torold pace which governed the procadings on the 1986 exercise. Inter-venors are on t. . e of the expedited nature of this proceeding, and it is their M/ Corstruction of the Board's reaction in this fashion is improper: Intervenors' construction effects delay, delay is prejudicial to LILCO and irreconcilable with the structure of this proceeding as commanded by the Commission and the Appeal Board, and LILCO was not even aware at the time of Intervenors' request, much less permitted to comment on it.
M/ Intervenors are already well launched into their familiar pattern of pleadings:
309 pages on contentions alone (104 pages of contentions,205 of reply), compared to LILCO's 72 pages (not including documentary attachments) and the Staff's 80 pages.
a
. l obligation to conduct themselves consistently with an expedited framework, rather i
than attempting to twist ambiguities so as to effect delay.E They have already been awarded one extension of time by this Board. LILCO's due process rights dictate that I they not be awarded a second one, ex parte. Intervenors have not shown good cause for falling to act promptly to file amended contentions. This factor weighs against permit-ting Intervenors to modify their contentions in response to ALAB-903 at this point and, :
accordingly, Intervenors' showing on the four remaining factors must be compelling.
Cincinnatt Gas and Electric Co. (Wm. H. Zimmer Nuclear Power Station, Unit 1),
LBP-83-58,18 NRC 640,663 (1993),
M/ Intervenors have been found by the Board in the OL-3 docket to have conducted themselves in a deliberately dilatory fashion over an extended period:
Throughout the protracted period of this proceeding, Inter- i venors have provided little evidence of a motivation to have this controversy . . . resolved on the merits, and in a timely manner.
LBP-88-24,28 NRC , slip op, at 109 (Sept. 23,1988).
Not only have the Intervenors refused to provide any infor-mation on State and County emergency resources so that the feasibility of emergency plans could be appraised . . . but l procedural mechani.ims have been consistently utilized in '
delaying the Board and the Commission in carrying out its 11-censing responsibilities.
Id. at 110. LILCO is not here moving for sanctions against Intervenors an the basis of '
the OL-3 Board's Concluding Initial Decision, LBP-88-24; the reach of that decision's sanctions effect has been ruled on preliminarily by the Appeal Board in ALAB-902, and subsequently certified by the Commission for review in pertinent part in its Order of November 9. LILCO does not, therefore, presently intend to file papers formally relying on LBP-88-24 in terms of sanctions before the Commission has issued a decision :
on the matter. In the meantime, however LILCO believes that this Board is obligate <1 '
to consider the findings of Boards in companion dockets concerning the behavior of parties, in appraising matters which may involve motive, such as the existence of good cause for failure to amend pleadings voluntarily or in a timely manner.
17-(11) The availability of other means whereby Petitioner's interest will be protected: Intervenors have consistently stated that their interest in this proceeding ;
lies in protecting their constituencies against the hazards of a major accident at Shoreham. It has been a matter of adjudicated fact since 1985, accepted by the Appeal Board and the Commission, that there is nothing intrinsic about Long Islanr', the Shoreham plant, or any other background circumstance that makes adequate emergency preparedness for Shoreham impossible. Emergency Dlanning for Shoreham is and has l been _.found to be feasible, contrary to Intervenors' well-worn arguments. !_ee l
LBP-85-31, 22 NRC 410, 427 (1985); CLI-85-12, 21 NRC 1587,1589 (1985). Intervenors and this Board are bound by that determination. The only remaining problems, there-fore, are ones of implementation. If New York State and Suffolk County truly wish to protect their stated interest, they could lend their resources and their legal authority to emergency planning and preparedness for Shoreham, as they do for every other power plant whose EPZs are within their jurisdiction. That is a f ar more efficacious means of l protecting their stated interests than merely contorting all of the apparati of govern-( mental power and influence to attempt to stymie LILCO's compensatory efforts.10/
This factor cuts against permitting Intervenors to modify their contentions to account 1
! for ALAB-903 at this point.
(iii) The extent to which Intervenors' earticloation may reasonably be expected to assist in developing a sound record: By *his point, it is clear that Intervenors' partic-(pation contributes little to development of any aspect of a record except its length.
Af ter an exercise of literally unprecedented scope and duration, they complain about its scope (contention 1): having lost successive rounds before the Commission and the 11/ The OL-3 Board, in imposing sanctions for Intervenors' deliberate defiance of Board orders, found that Intervenors' actions "can only be viewed as part of an overall plan to thwart . . . Inquiry and subvert the Commission's process for political ends."
LBP-88-24, s!!D op, at 102.
l Court of Appeals concerning the presumption of their participation in emergen r sponse, they attempt to attack it again here (contention 2); and faced with an expert FEMA evaluation of the exercise as excellent, they attack FEMA's objectivity (conten-tion 3). In remaining contentions they string together, of ten more than once, every available adverse circumstance, no matter how petty, to allege general failure of per-formance in the exercise. According to Intervenors the entire army, including 68 fed-eral evaluators,is out of step.
In addition, Intet venors' contentions contain little if any material based on other than secondary mlrces: reinterpretation of the FEMA report and of materials already turned over on discovery by LILCO or FEMA. If, despite the opportunities available to Intervenors' observers, who were at LILCO f acilities during the exercise and who were free to roam the streets, traffic control points, bus transfer points and other LERO ac-tivity nodes depicted in the Shoreham Emergency Plan in the EPZ, Intervenors have no further independent contribution to make, it is not clear what analytical function their participation in an adversary proceeding with the rights of fuli litigants serves. '
Further, Intervenors' contentions are devoid of suggestions, despite their sup-posed expertise in emergency planning, for improvement of any of the areas they con-
- ceive to be deficient. Intervenors' goal cannot easily be stated to be anything other than contributing to a record as adverse to LLCO's pompensatory efforts as it is within their power to effect, whether that record is sound or not.
The 1988 exercise was observed by some 68 federal evaluators, whose efforts are synopsized in FEMA's Post-Exercise Assessment. Many of them had also observed the 1986 exercise. With that knowledge and perspective, they found the 1988 exercise to be exemplary. That finding, against these observers' background, confers a high degree of confidence that a record completed without revision by Intervenors of their conten-tions will include sufficient documentary information to produce a sound and supportable result. This criterion, therefore, does not cut in Intervenors' f avor.
~ - . - - ~ ,_ -
_ - , , -,,-.------,~c--., , . , , . , . - - . - - - , , , , , , , ,
i (iv) The extent to which Intervenors' interests will be represented by existina parties: If Intervenors' interests lie in seeing to it that emergency preparedness at Shoreham is consistent with federal standards, those interests are merely coincident with those of the NRC Staff FESIA and LILCO. If those interests lie la merely frus-trating a decisional process, they are not represented by the other parties; but those are not legitimate interests in an NRC proceeding. If Intervenors' interests lie in assur-ing that specific information relative to their roles as governments with various powers and facilities is accounted for, there is a role for them to play, but they need not be full-scale adver:arial participants for that purpose. Those interests can be met through submission of comments, without requiring full adjudicatory process. This f actor, therefore, does not cut in f avor of Intervenors' full-scale participation in any proceed-ing intended to account for the effect of ALAB-903 on litigation of the 1988 exercise.
(v) The extent to which Inter.'enors' participation will broaden the issues or i delay the procceeding: This f actor clearly and decisively cuts against permitting Inter-venors to amend their contentions. FE51A's exercise report and evaluation of Revision 10 of the Shoreham emergency plan resulted in a finding of reasonable assurance for emergency planning at Shoreham, Absent this litigation, demanded by Intervenors and Intervenors alone, that is sufficient to authorize issuance of a full power operating 11-conse for Shoreham. By contrast, if Intervenors are permitted to modify their conten-tions, litigation will soon commence on a scope of issues contained in 104 pages of con-tentions, justified by 205 pages of argument and amended to plead around ALAB-903.
As this Board remembers, the process previously was nearly two years long, even before appeals. LILCO has seen nothing to guarantee that Intervenors will not try for the same type of proceeding again. This f actor dispositively cuts against Intervenors, since there is otherwise a record sufficient to permit issuance of a full power license now.
6
e 0
None of the five factors of S 2.714(a)(1) cuts in Intervenors' favor. Two of the most important - the absence of good cause and delay of the proceeding - cut dispost-tively against permitting Intervenors to amend their contentions to account for ALAB-903 at this late point. They should not be permitted to do so.
CONCLUSION Intervenors' contentions should be ruled on by this Board as they were filed on October 24. Under ALAB-903, Contentions 4 through 20 should be rejected at the out-set. Intervenors sh09!d nct be permitted at this point to modify their contentions to account for ALAB-903.
Respectfully submitted, Donald P. Irwin Scott D. Matchett David S. Harlow Counsel for Long Island Lighting Company Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: November 21,1988 l
6
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-<(
LILCO, NGv mber 21,1988 i
CERTIFICATE OF SERVICE N[
In the Matter of *E8 NOV 23 P12:30 LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Statio' . Unit 1) ~n. .p Docket No. 50-322-OL-C - sy- . f., y;.x d
- r ..
I hereby certify that copies c,f LILCO'S MOTION TO DISMISS EXERCISE CON-TENTIONS 4-23 ON THE BASIS OF ALAB-903 were served this date upon the following by Telecopy as indicated by an asterisk, by Federal Express as indicated by two aster-1sks, or by first-class mail, postage prepaid.
John H. Frye, III, Chairman
- Edwin J. Reis. Esq.
- Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuc!sar Rcgdtc.=f Commission One White Flint North East-West Towers, Fourth Floor 11555 Rockville Pike 4350 East-West Hwy. Rockville, MD 20852 Bethesda, MD 20814 Lawrence Coe Lanpher, Esq.
- Dr. Oscar H. Paris
- Karla J. Letsche, Esq.
Atomic Safety and Licensing Board Kirkpatrick & Lockhart U.S. Nuclear Regulatory Commission South Lobby - 9th Floor East-West Towers, Fourth Floor 1800 M Street, N.W. .
4350 East-West Hwy. Washington, DC 20036-5891 Bethesda, MD 20814 Fabian G. Palomino, Esq.
- Mr. Frederick J. Shon
- Richard J. Zahnleuter, Esq.
Atomic Safety and Licensing Board Special Counsel to the Governor U.S. Nuclear Regulatory Commission Executive Chamber, Room 229 East-West Towers, Fourth Floor State Capitol 4350 East-West Hwy. Albany, NY 12224 Bethesda, MD 20814 Alf red L. NP .elli, Esq.
Secretary of the Commission Assistant Attorney General Attention Docketing and Service 120 Broadway Section Room 3-118 U.S. Nuclear Regulatory Commission New York, NY 10271 Washington, DC 20555 George W. Watson, Esq.
- Atomic Safety and Licensing William R. Cumming, Esq.
Appeal Board Panel Federal Emergency Management U.S. Nuclear Regulatory Commission Agency Washington, DC 20555 500 C Street, S.W., Room 840 Washington, DC 20472 Adjudicatory File Atomic Safety and Licensing Mr. Philip McIntire Board Panel Docket Federal Emergency Mant.gement U.S. Nuclear Regulatory Commission Agency Washingtgn, DC 20555 26 Federal Plaza New York, NY 10278
n
( Mr. . lay Dunkleberger Evan A. Davis, Esq.
New York State Energy Office Counsel to the Governor Agency Building 2 Executive Chamber Empire State Plaza State Capitol Albany, NY 12223 Albany, NY 12224 Stephen B. Latham, Esq. ** E. Thomas Boyle, Esq.
Twomey, Latham & Shea Suffolk County Attorney 33 West Second Street Building 158 North County Complex P.O. Box 298 Veterans Memorial Highway Riverhead, NY 11901 IIauppauge, NY 11788 Jonathan D. Feinberg, Esq. Dr. Monroe Schneider New York State Department of North Shore Committee Public Service, Staff Counsel P.O. Box 231 Three Rockefeller Plaza Wading River, NY 11792 Albany, NY 12223 Ms. Nora Bredes Executive Coordinator .
Shoreham Opponents' Coalition 195 East Main Street Smithtown, NY 11787 Donald P. Irwin Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: Noveraber 21,1988
.