ML20207P731
| ML20207P731 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 01/14/1987 |
| From: | Wagner M NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#187-2192 ALAB-855, OL-3, NUDOCS 8701200139 | |
| Download: ML20207P731 (16) | |
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2/92 DOCKETED UstIRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
~87 JfJI 15 P4 :32 BEFORE THE COMMISSION
).'
In the Matter of
)
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LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-3
)
(Emergency Planning)
(Shoreham Nuclear Power Station,
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Unit 1)
)
NP.C STAPF RESPONSE IN OPPOSITION TO LILCO'S PETITION FOR REVIEW OF ALAB-855 Mary Wagner Counsel for NRC Staff January 14, 1987
)hD 8701200139 870114 PDR ADOCK 05000322 G
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-3
)
(Emergency Planning)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
NRC STAFF RESPONSE IN OPPOSITION TO LILCO'S PETITION FOR REVIEW OF ALAB-855 i
i Mary Wagner Ccunsel for NRC Staff i
January 14, 1987 i
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01/14/87 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Mciter of
)
)
LONG ISLAND LIGIITING COMPANY
)
Docket No. 50-322-OL-3
)
(Emergency Planning)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
NRC STAFF RESPONSE IN OPPOSITION TO LILCO'S PETITION FOR REVIEW OF ALAB-855 I.
INTRODUCTION On January 2,1987 the Long Island Lighting Company (LILCO) filed a petition for review of ALAB-855, 24 NRC (December 12, 1986). O In that decision, the Appeal Board affirmed the Licensing Board's conclusions that (1) LILCO is obligated to estimate and plan for the number of evacuees arriving at the relocation center including those evacuees desiring monitoring but not sheltering and (2) that the issue of LILCO's plan for evacuees not seeking sheltering (evacuee issue) had been properly raised for litigation.
Because LILCO has failed to rafsc an important issue of law or policy or demonstrate that the Appeal Board resolved factual issues contrary to the resolution of such issues by the Licensing Board (see 10 C.F.R. I 2.786 (b)(4)), the Staff opposes the LILCO Petition.
Staff counsel has been in-formed that FEMA wishes to join in the position taken in this brief.
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LILCO's Petition For Review of ALAD-855, January 2, 1987 (LILCO Petition).
.~ II.
BACKGROUND The events leading to the issuance of ALAB-855 are set forth in some dctail at pages 1-3 of that decision.
In sum, the Appeal Board in an earlier decision (ALAB-847) I had remanded two issues to the Licensing Beard in the emergency planning phase of this proceeding.
One of those issues in-volved the Licensing Board's conclusion, in LBP-85-31, 3,/. that in addition to planning for the number of evacuees likely to seek sheltering through a re-location center, LILCO was required to plan for the number of evacuecs who would appear only for purposes of radiological monitoring and, if necessary, decontamination.
In ALAh3-847, supra, the Appeal Board returned the mat-ter in question to the Licensing Board to enable it to consider whether the issue of LILCO's plan for evacuees arrivir.g at the relocation center but not seeking sheltering had been properly raise <' for Iftigation.
In light of that step, the Appeal Board declincd at that ilme "to rule on LILCO's alternative argument that the cbligation imposed by the [ Licensing] Board runs afoul of applicable regulatory requirements." O The Licensing Board in its unpublished " Clarifying Decision on Remand" I
of October 29,1986 (Clarifying Decision) advised the Appeal Board that, in its judgment, the evacuee issue was properly raised for litigation.
In response to an Appeal Board Order dated November 4,1986 seeking the par-ties' views on 1) the Licensing Board's October 29, 1986 determination that the evacuee issue had been properly raised, and 2) whether there is an 2/
24 NRC (September 19, 1986).
3/
22 NRC 410, 417, 430-37 (1985).
4/
ALAB-847, 24 NRC (September 19,1986) (slip op. at 9).
., obligation in the Commission's regulatory requirements to provide for the monitoring of evacuees who go to relocation centers but who do not seek to be sheltered, all parties submitted comments, in the Staff's comments the Staff acknowledged that in its Clarifying Decision the Licensing Board had carefully examined the record and supplied a reasonable foundation for its determination that the " evacuee issue" was properly raised in this proceeding. O Furthermore, the Staff took the position that the obligation imposed upon LILCO by the Licensing Board with regard to monitoring all evacuees arriving at relocation centers is consistent with the Commission's regulations.
The Appeal Board in ALAB-855 made two determinations which form the basis for LILCO's claims of error:
- 1) that the evacuee issue was properly raised by intervenors' contentions, and 2) that requiring LILCO to provide for the monitoring of evacuees who seek monitoring (but who do not also seek shelter) is consistent with the Commission's regulations.
Neither deter-mination warrants the Commission's discretionary exercise of review.
More-over, the principal underlying issues are technical matters which are better addressed after the development of a factual record before the Licensing Board rather than in broad legal arguments.
5/
NRC Staff Comments Pursuant To Memorandum and Order Dated l
November 4,1986, November 21, 1986.
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In its initial response to LILCO's appeal of ALAB-847, the Staff had taken the position that the issue was not imbraced by intervenors' con-tentions.
See NRC Staff Brief in Support of "LILCO's Brief on the Relocation Center Issues" (Movember 21, 1985) at 4-11.
i 4-III.
DISCUSSION Although the Commission has discretion to review any decision of its subordinate boards, a petition for Commission review of matters of law and policy."will not ordinarily be granted" unless important environmental, safe-ty, procedural, common defense, antitrust, or public policy issues are in-volved.
10 C.F.R.
I 2.786(b)(4)(1).
Similarly, petitions for review of matters of fact will not be granted unlest: the Appeal Board has resolved a factual issue necessary for a decision in a clearly erroneous manner contrary to the resolution of that same issue by the Licensing Board.
10 C. F. R.
C 2.786(b)(4)(ii).
Because the arguments made by LILCO do no meet these standards, Commission review of ALAB-855 is not warranted.
A.
The Appeal Board did not err in concluding that the evacuee issue had been presented for litigation The Appeal Board declined to overturn the Licensing Board's determi-nation that the evacuee issue was properly raised by the intervenors and thus warranted disposition on the merits, noting that the Licensing Board's j
own determination that the issue had been squarely presented to it had a rational foundation in fact and was entitled to substantial deference.
ALAB-855, slip op, at 5-10.
In an attempt to meet the standards for Com-mission review, LILCO claims that the Licensing Board's decision on whether the evacuee issue was squarely presented to it by intervenors' contention 24
" weakens the rule that fair notice must be given by filing contentions" (LILCO Petition at 6), and that this " notice" issue is an "important proce-dural question that will considerably affect other proceedings."
LILCO Petition at 9.
The Staff initially argued that the evacuee issue had not been squarely raised by admitted Contentions 24.0 and 75.
The Staff argued that
. Contention 24.0 on its face challenged the fact that the relocation center which LILCO had designated for portions of the EPZ was not available for its intended use; nowhere did it challenge the planning basis utilized by LILCO in selecting its center, or the general adequacy of the center.
The Staff read Contention 75 as addressing LILCO's utilization of a planning basis for evacueos who might seek shelter in the congregate care areas of a relocation center, but not addressing the issue of planning for evacuees who might sock monitoring only.
On remand by the Appeal Board, the Licensing Board provided a well-articulated detailed explanation of its reasoning.
While not corresponding to the Staff's, the Licensing Board's reasoning was that, while the literal wording of Contentions 24.0 and 75 had been overtaken by events, the essential concerns expressed in those contentions were still clear and applicable to the new factual situation, and thus that the issue of moni-toring was properly before the Board in the context of the overall relocation center litigation.
(
ALAB-855 does not "weeken" the notice requirement: the Appeal Board in ALAB-855 merely affirmed the Licensing Board's conclusion that LILCO in fact was on notice that previously admitted contentions had properly raised the evacuee issue and that LILCO was given a fair opportunity to litigate the matter and had failed to carry its burden of proof. U In so doing, the Appeal Board found that the Board's construction of Conten-tion 24 was reasonable, and that LILCO's testimony recognized that more people might need to be monitored than would need to be sheltered.
2 7/
LILCO's claim that the Appeal Board, in putting LILCO to the proof on the evacuee issue, is acting unfairly is particularly strained where, as here, LILCO is being given an additional opportunity to present evi-dence on the issue, q_
o
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4 ALAB-855, slip op. at 8; Tr. 14,825-3 0, 15,898.
The Appeal Board in ALAB-855 was following the generally accepted and proper practice of defer-ring to the trial tribunal's determination that an issue had been presented to it, when such determination is supported by a rational foundation, as it was In this casc.
The Appeal Board's adherence to this practice in ALA3-855 cannot be said to involve an error of law or policy that could significantly affect the environment or the public health and safety.
Accordingly, LILCO's argument does not meet the standards of f 2.786 and the Commission should not entertain review.
l B.
The Appeal Board correctly sustained the Licensing Board's requirement that LILCO provide for monitoring of evacuees arriving at relocation centers, including those not seeking shelter Essentially, LILCO seeks Commission review of the Appeal Board's determination that the Licensing Board reasonably imposed upon LILCO the duty of estimating and planning for the number of evacuees desiring moni-toring but not sheltering.
This requirement for the presentation of addi-tional evidence to the Licensing Board is precisely the kind of situation where Commission review at this time would be inappropriate.
LILCO's first asserted error is that ALAB-855 imposes a "new require-ment that has not hitherto been imposed by regulation or case law" to the effect that LILCO must " prove" how many members of the public might need to be monitored during a radiological emergency. LILCO Petition at 2-4.
In fact, the Appeal Board in ALAB-855 affirms the Licensing Board's directive to LILCO that it estimate and plan for monitoring of evacuees arriving at the relocation center whether or not such evacuees seek sheltering at the reloca-tion center.
ALAB-855, slip op. at 17-18.
That requirement derives from 10 CFR f 50.47.
Section 50.47(b)(10) provides that emergency response i
plans for nuclear power reactors shall contain:
^
, A range of protective actions have been developed for the plume exposure pathway EPZ fer emergency workers and the public.
Guidelines for the choice of protective actions during - an emergency, consistent with Federal' guidance, are developed and in place, and protective actions for the ingestion exposure pathway EPZ appro-priate to the locale have been developed.
This standard is further particularized in Section II.J.12 of the joint NRC-FEMA " Criteria for Preparation and Evaluation of Radiological Response Plans and Preparedness in Support of Nuclear Power Plants," NUREG-0654, which states:
(November 1960),
Each organization shall describe the means for register-ing and monitoring of evacuees at relocation centers in host areas.
The personnel and equipment available should be capable of monitoring within about a 12 hour1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> period all residents and transients in the plume expo-sure EPZ arriving at relocation centers.
LILCO argues that ALAB-855 " prohibits" LILCO from relying on an
" agency guideline" of 20% of the affected population in the plume EPZ in determining how many peopic will seek monitoring.
LILCO Petition at 1, 2.
That is not so.
The FEMA guideline value is entitled to considerable weight.
However, it does not have the force of regulation and can be i
called into question in litigation.
That has been done in this case.
- See, l
e.g.,
Consumers Power Co.
(Big Rock Point Nuclear Plant), ALAB-725, i
17 MRC 562, 568 and n.10 (1983) and cases cited therein; Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-698,16 NRC 1290, 1298-99 (1982), rev'd in part on other grounds, CLI-83-22, 18 NRC 299 (1983).
The Appeal Board correctly rejected LILCO's argument that it was entitled to rely on an agency guideline and could not be put to the proof as to an estimate of how many evacuees would likely seek monitoring in the case at hand.
l 8,/
The Commission has stated that NUREG-0654 is endorsed by Regulatory l
Guide 1.101, and is to be "used by reviewers in evaluating the adequa-cy of emergency preparedness at nuclent power reactor sites." 49 Fed.
Reg. 27,733, 27,734 (1984).
1 LILCO also asserts, inter alia, that ALAB-855 is " unclear about the exact nature of the new requirement."
LILCO Petition at 3.
It then poses questions about the nature of the proof that may be needed, based on the alleged "unclarity" of the requirement.
Whether these issues concerning proof will in fact arise is at present speculative and is best left in the first instance to the trial tribunal that has imposed the requirement.
Such specu-lation is not proper grounds for Commission review.
LILCO refers to two other Commission proceedings in which a value of 20% was used by the presiding licensing boards to estimate the portion of the evacuating population that will proceed to relocation centers.
There is no indication that the guidance value of 20% was disputed in these proceed-ings. In cases in which there is no dispute as to a particular point, little is needed in the way of supporting evidence on such a point.
In the present case, in which the issue is in dispute, it is not a "new" or unusual require-ment to call for some evidenca in support of the use of a guideline value. "
Moreover, there was nothing in ALAB-855 to suggest that the Appeal Board imposed an especially onerous level of proof.
There is nothing in ALAB-855 to preclude proof based on the experienced judgment of experts.
LILCO complains that ALAB-855 " invites the argument that the applicant I
must monitor the entire EPZ within 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />."
LILC 3 Petition at 4.
LILCO asserts that by referring to the following language from the Commission's San Onofre decision b "[that NUREG-0654] requires relocation centers capable of registering and monitoring all residents and transients in the
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Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), CLI-83-10, 17 NRC 528, 536 n.12 (1983), rev'd in part on other grounds, GUARD v. U.S. Nuclear Regulatory Commission, 753 F.2d 1144 (D.C. Cir.1985).
a.--
t
_g-plume exposure EPZ" ( ALAB-855, slip op. at 13-14, emphasis added by ALAB-855), the Appeal Board appeared to be adopting a standard that requires monitoring of the entire population of the EPZ. We believe that this is a clear misreading of ALAB-855.
In ALAB-855, the Appeal Board explicitly indicates that "[t]here is no occesion to explore here the bounds of our obligation to give effect to a Commission pronouncement that, albeit clear-cut, might not have been essen-tial to the decision where it is found".
(ALAE -855, slip op. at 14).
The Appeal Board uses the citation only as part of its analysis refuting LILCO's assertion "that there is no obligation' to plan for evacueet not asking to be sheltered".
The Appeal Board cites the Commission statement in response to a LILCO argument concerning the language of Evaluation Criterion J.12,. that monitoring was required only for the evacuees who arrive at the relocation center to be sheltered, but not for other evacuees.
The Appeal Board points out the significant difference in perspective between the LILCO argument and the San Onofre language.
Nonetheless the Appeal Board recognizes the status of the statement in a footnote in the San Onofre case as dictum and does not purport to accord it any greater status.
LILCO also asserts that ALAB-855 suggests that the Appeal Board has imposed a requirement for decontamination of a large number of the public in 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />.
LILCO Petition at 5-6.
This is again a misreading of ALAD-855.
As noted above, the Appeal Beard did not hold that there is a requirement to monitor the entire population of the EPZ; its language cannot be reason-ably read to constitute a holding that the entire population of the EPZ must be decontaminated.
Nor can it be read as holding that there is any fixed period of time within which those peopic determined by monitoring to be con-taminated are to be decontaminated.
. Finally, the Staff finds nothing in ALAB-855 that precludes the offer of evidence supporting the use of the 20% guideline value as a reasonable basis for planning for the monitoring of evacuees arriving at the relocation center.
Indeed, in concluding, the Appeal Board notes that the Licensing Board may well be called upon (if it should grant LILCO's pending motion to reopen the record) to examine LILCO's assertion that its 20% planning basis is
" conservative".
The Staff for its part is confident that with a properly developed factual record, demonstrating the validity of applying experience based on natural phenomena emergencies and the conservative nature of the guideline values, the reasonableness of the guidelines values generally used to assess relocation center monitoring capability will be sustained in this proceeding.
In conclusion, none of the arguments made by LILCO concerning moni-toring and. decontamination of evacuees not seeking shelter meets the stan-dards for Commission review.
IV.
CONCLUSION l
For the reasons set forth above, none of LILCO's assertions of Appeal Board error merit Commission review and LILCO's Petition should be denied.
Respectfully submitted, Mary Wagner i
Counsel for NRC Staff I
I Dated at Bethesda, Maryland l
this 14th day of January,1987 l
i 1
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I UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION DEFORE THE COMMISSION In the Matter of
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LONG ISLAND LIGilTING COMPANY
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Docket No. 50-322-OL-3
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(Emergency Planning)
(Shoreham Nuclear Power Station,
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Unit 1)
)
NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney enters an appearance in the above-captioned matter.
In accordance with 5 2.713(b),
10 C.F.R., Part 2, the following information is provided:
Name:
Mary E. Wagner Address:
U.S.
Nuclear Regulatory Commission Office of the General Counsel Washington, D.C.
20555
~
Telephone Number:
(301) 492-8659 Admissions:
Court of Appeals, State of New York District of Columbia Court of Appeals Names of Party NRC Staff Respectfully submitted, Mary Wagner ()
Couns I for NRC Staff 4
Dated at Bethesda, Maryland this 14th day of January,1987 l
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I 00LKETED U$tlPC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'87 JAN 15 P4 :32 BEFORE THE COMMISSION jfFyj.
4 0
B fu. hD In the Matter of
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LONG ISLAND LIGHTING COMPANY
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Docket No. 50-322-OL-3
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(Emergency Planning)
(Shoreham Nuclear Power Station,
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Unit 1)
)
CERTIFICATE OF SERVICE I hereby certify that cople's of "NRC STAFF RESPONSE IN OPPOSITION TO LILCO'S PETITION FOR REVIEW OF ALAB-855" 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 Commission's internal mail system, this 14th day of January, 1987.
Norton D. Margulies, Chairman
- Joel Blau, Esq.
Administrative Judge Director, Utility Intervention Atomic Safety and Licensing Board Suite 1020 U.S. Nuclear Regulatory Commission 99 Washington Avenue
.5 Washington, DC 20555 Albany, NY 12210 Jerry R. Kline*
Fabian G. Palomino, Esq.
Administrative Judge Special Counsel to the Governor Atomic Safety and Licensing Board Executive Chamber U.S. Nuclear Regulatory Commission State Capitol Washington, DC 20555 Albany, NY 12224 Frederick J. Shon*
Jonathan D. Feinberg, Esq.
Administrative Judge New York State Department of Atomic Safety and Licensing Board Public Service U.S. Nuclear Regulatory Commission Three Empire State Plaza Washington, DC 20555 Albany, NY 12223 Philip McIntire W. Taylor Reveley III, Esq.
Federal Emergency Management Donald P. Irwin, Esq.
Agency Hunton & Williams 26 Federal Plaza 707 East Main Street Room 1349 P.O. Box 1535 New York, NY 10278 Richmond, VA 23212
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I Stephen B. Latham, Esq.
Herbert H. Brown, Esq.
Twomey, Latham & Shea Lawrence Coe Lanpher, Esq.
Attorneys at Law Karla J. Letsche, Esq.
33 West Second Street Kirkpatrick & Hockhart Riverhead, NY 11901 South Lobby - 9th Floor 1800 M Street, NW Atomic Safety and Licensing Washington, DC 20036-5891 Board Panel
- U.S. Nuclear Regulatory Commission Jay Dunkleberger Washington, DC 20555 New York State Energy Office Atomic Safety and Licensing Agency Building 2 Appeal Board Panel
- Empire State Plaza U.S. Nuclear Regulatory Commission Albany, NY 12223 Washington, DC 20555 Spence W. Perry, Esq.
Martin Bradicy Ashare, Esq.
General Counsel Suffolk County Attorney Federal Emergency Management H. Lee Dennison Building Agency Veteran's Memorial Highway 500 C Street, SW Hauppauge, NY 11788 Washington, DC 20472 Dr. Monroe Schneider Robert Abrams, Esq.
North Shore Committee Attorney General of the State P.O. Box 231 of New York Wading River, NY 11792 Attn: Peter Bienstock, Esq.
Department of Law Ms. Nora Bredes State of New York Shoreham Opponents Coalition Two World Trade Center 105 East Main Street Room 46-14 Smithtown, NY 11787 New York, NY 10047 Anthony F. Earley, Jr.
William R. Cumming, Esq.
General Counsel Office of General Counsel Long Island Lighting Company Federal Emergency Management I
175 East Old Country Road Agency Hicksville, NY 11801 500 C Street, SW Washington, DC 20472 Dr. Robert Hoffman Long Island Coalition for Safe Docketing and Service Section*
Living Office of the Secretary P.O. Box 1355 U.S. Nuclear Regulatory Commission Massapequa, NY 11758 Washington, DC 20555 l
Mary M. Gundrum, Esq.
New York State Department of Law 120 Broadway 3rd Floor, Room 3-116 New York, NY 10271 0Lu W
Mary E.
7agner
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Counsel r NRC StMf