ML20207Q009
| ML20207Q009 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 01/14/1987 |
| From: | Mcmurray C KIRKPATRICK & LOCKHART, SUFFOLK COUNTY, NY |
| To: | Office of Nuclear Reactor Regulation |
| References | |
| CON-#187-2220, RTR-NUREG-0654, RTR-NUREG-654 ALAB-855, OL-3, NUDOCS 8701210058 | |
| Download: ML20207Q009 (14) | |
Text
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DOCKETED UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
~87 JAN 16 P4 :01 Before the Commission C FI..
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In the Matter of
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LONG ISLAND LIGHTING COMPANY )
Docket No. 50-322-OL-3
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(Emergency Planning)
(Shoreham Nuclear Power
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Station, Unit 1)
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SUFFOLK COUNTY, STAM OF NEW YORK, AND TOWN OF SOUTHAMPTwN OPPOSITION TO LILCO'S PETITION FOR REVIEW OF ALAB-855 On January 2, 1987, the Long Island Lighting Company ("LILCO")
petitionedl/ the Commission to review ALAB-855 / which was issued by the 2
Appeal Board on December 12, 1986.
Pursuant to 10 C.F.R. 52.786(b)(3),
Suffolk County, the State of New York and the Town of Southampton (collectively, the " Governments") submit this opposition to LILCO's Petition.
i I.
Introduction L
In ALAB-855, the Appeal Board affirmed the Licensing Board's prior i
rulings (1) that LILCO must estimate the number of evecuees who may arrive at its relocation center (s) to be monitored and, as necessary, decontaminated in the event of a radiological accident, and (2) that the issue of whether LILCO was capable of providing adequate monitoring and deconta:;ination of evacuees 1/
LILCO's Petition For Review of ALAB-855, (January 2, 1987).
2/
Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1),
ALAB-855, 24 NRC (Dec. 12, 1986) ("ALAB-855").
95t3 8701210058 870114 I
PDR ADOCK 05000322 g
4 at its relocation center (s) had been properly raised for litigation before the Licensing Board.2/ Having failed to convince the Appeal Board that its opposition to those rulings has any merit, LILCO is now seeking to have the rulings reviewed yet again, this time by the Commission. For the reasons set forth below, LILCO's Petition should be rejected.
Although LILCO's Petition purports to advance four separate arguments in support of Commission review, it actually states only two alleged bases for Commission review. First, LILCO asserts that the Licensing and Appeal Boards imposed a new requirement when they ruled that LILCO must estimate and plan for the number,of evacuees who may arrive at its relocation center for monitoring and decontamination in the event of a Shoreham accident. Second, LILCO contends that the Licensing and Appeal Boards erred when they found that the issue of whether LILCO had the capability of monitoring and, if necessary, decontaminating the members of the public arriving at its relocation center, had been properly raised before the Licensing Board. LILCO's arguments, however, present absolutely no basis for the Commission to review ALAB-855.
That decision neither imposes any new requirements nor represents a departure from settled law.
In particular, the Licensing and Appeal Boards' determination that LILCO must estimate and plan for the number of evacuees to be monitored is soundly based on logic, NUREG 0654, Commission decisions, the facts in the record, and LILCO's own actions during its February 13, 1986 Exercise of the LILCO Plan.
There can be no possible basis for a finding that LILCO has adequate monitoring and decontamination personnel and facilities absent an accurate estimate of the number of persons who may need such services. Similarly, the 1/
The procedural history surrounding the Licensing Board's rulings and the Appeal Board's affirmance is set forth in ALAB-855, at 1-5. -
Licensing and Appeal Board holding that the monitoring and decontamination issue was properly raised is based on an exhaustive review of tne record by both the Licensing Board and the Appeal Board; it is therefore singularly inappropriate for Commission review.
Indeed, when the LILCO Petition is stripped of its rhetoric, its true nature is clear: LILCO is petitioning the Commission for special relief from emergency planning standards which LILCO has chosen to ignore. This attempt to circumvent Commission requirements should be-rejected.
II.
LILCO Must Estimate The Number Of Evacuees To Be Monitored In A Radioloalcal Emeroency Commission regulations require that an off-site emergency response plan must develop "a range of protective actions.
for the plume exposure pathway EPZ for emergency workers and the public." 10 C.F.R. 550.47(b)(10).
In light of this requirement, the Appeal Board held that:
to ensure the fulfillment of the section 50.47(b)(10) mandate, the Licensing Board justifiably imposed upon LILCO the added duty of estimating and planning for the number of evacuees desiring monitoring but not sheltering -- whether the monitoring would be made available at the relocation centers or elsewhere.
ALAB-855, slip op. at 17.
To argue that this requirement is new is to ignore NUREG-0654, the decisions of the Commission, and common sense.
As a guideline to implement the requirements of Section 50.47(b)(10),
Planning Standard II.J.12 of NUREG-0654 provides that:
Each organization shall describe the means for registering 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 exposure EPZ arrivino at relocation centers.
(Emphasis added) r Thus, the express language of Planning Standard II.J.12 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 oersons from the EPZ who arrive at a relocation center. As noted by the Appeal Board, the Commission itself has elaborated on this point, stating that NUREG-0654
" requires relocation centers capable of registering and monitorin9 all residents and transients in the plume exposure EPZ."$/ Since LILCO must be capable of monitoring all the evacuees who arrive at relocation centern, then it logically follows that LILCO has the concomitant responsibility of estimating and planning for the number of evacuees to whom it must provide such services. Otherwise, no one possibly could determine whether the resources committed to meet the requirements of 10 CFR S 50,47(b)(10) and Planning Standard II.J.12 are adequate. Thus, the need for such an estimate is-clearly embedded in the regulations and Commission decision, and its recognition by the Licensing Board and Appeal Board in no way calls for review by the Commission.
In an effort to avoid the plain meaning of the language and logic of NUREG-0654 and the Commission's decision in San onofre, LILCO attempts to combine and confuse two separate issues. Specifically, LILCO argues that in determining the adequacy of its resources for monitoring and decontamination it is sufficient to rely on an " agency guideline" of 20 percent of the EPZ population as a planning basis. Petition, at 1, 2.
In doing so, however, LILCO confuses two distinct issues:
the issue of the number of people likely to need shelter is a separate issue from the number of people who will need monitorina and decontamination. As even LILCO admits, the 20 percent planning 1/
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 oart on other arounds, Guard v.
U.S. Nuclear Regulatory Commission, 753 F.2d 1144 (D.C. Cir. 1985) (emphasis added).
basis is the accepted " estimate of the number:of people who'need public shelter if asked to evacuate their homes."
Petition, at 2 (emphasis added).
As both the Licensing Board and the Appeal Board recognized, however, the'20 percent estimate of those who_will seek shel'ter is totally. inappropriate as an estimate of those who will require monitoring.1/ _Thus, the Appeal Board held:
LILCO does not explain why it should make a difference whether the person - seeking monitoring and possible decontamination also desires sheltering. Surely, the need of evacuees for monitoring and decontamination services does not hinge.to any extent upon whether they have been able to make their own sheltering arrangement."
ALAB-855, slip op. at 16-17.5/
LILCO's asserted reliance on the 20 percent planning basis figure is also belied by'its actions at the February 13, 1986 Exercise. There, LILCO simulated an evacuation of certain subzones of the'EPZ and issued simulated EBS messages advising grerv resident of those zones to report to LILCO's relocation center (at that time, the Nassau Coliseum) for monoticing.
The population of those subzones (as of 1985) was 95.000 people.
LILCO Plan, App.
5/
ALAB-855, at 9; Long Island Lighting Co. (Shoreham Nuclear Power f
Station, Unit 1), LBP-86-36, 24 NRC (October 29, 1986) (slip op, at 12)
'("LBP-86-36").
$/
The' cases cited by LILCO in support of its argument that the 20 percent figure is an adequate planning basis for monitoring services are inopposite to the-issues in ALAB-855.
Specifically, in the Zimmer case, the i
Licensing Board simply stated "approximately 20% of an evacuating population will proceed to a relocation center." Cincinnati Gas & Elec. Co (Wm. H.
Zimmer Nuclear Power Station, Unit 2), LBP, 82-38, 15 NRC 1529, 1589 136 (1982), aff'd with modificatious, ALAB-727, 17 NRC 760 (1983). This statement
'1 has nothing to do with how many evacuees will require monitoring. In the Catawba case, the Licensing Board found more than sufficient capability for monitoring and never analyzed the percentage of people who would be required l_
to report for monitoring. Duke Power co. (Catawba Nuclear Stations, Units 1 &
j 2), LBP-84-37, 20 NRC 983, 960-691, a f f ' d, ALAB-813, 22 NRC 59 (198 5 ).
Significantly, at another section of the catawba opinion, the Licensing Board did discuss the fact'that 20 percent of the people evacuated actually sought shelter. Catawba at 956.
Like the Licensing Board in the instant case, the Catawba Licensing Board saw no relation between the number of those seeking shelter and those who must be monitored.,,..
A at III-2.
Given the fact that the population of the entire EPZ is 160,000, it is plain that LILCO was expecting (or simulating) the arrival of far more than the mere 20 percent of the population it now seeks to rely on as a planning basis.1/ Is LILCO suggesting that having ordered people to report for monitoring, it can refuse to monitor them? Hopefully not.
The wisdom of the Licensing and Appeal Boards' rulings are clear; if rational emergency planning is to occur, LILCO must estimate the number of evacuees who will arrive at its relocation center (or centers) to be monitored and, if necessary, decontaminated in a radiological accident and plan appropriately in light of that estimate.8/
III.
LILCO Has Misinterpreted ALAB-855 To Mean That It Necessarily Is Required To Plan for Monitoring The Entire EPZ As noted before, NUREG-0654 requires that 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." The l
Appeal Board held that:
1 This being so, it seems beyond serious dispute that monitoring and decontamination services must be regarded as within the " range of protective actions" that 10 C.F.R. 50.47(b)(10) requires be deyeloped for all members of the public within the EPZ.
1/
In recent deposition testimony, John A. Weismantle, a LILCO employee, stated that LILCO assumed during the exercise that all persons advised to proceed to a relocation center to be monitored would do so.
Deposition of John A. Weismantle, Dec. 9, 1987, Tr. 142.
This testimony is consistent with Mr. Weismantle's previous testimony before the Licensing Board. Egg Tr.
14,827-8.
8/
Finally, LILCO's discourse on the possible methods of estimating the number of evacuees to be monitored must be viewed as exactly the rhetorical diversion that it is.
In particular, LILCO's citation to cases discussing the validity of opinion polls is totally irrelevant and the Governments are at a loss to understand the significance of that issue here. ALAB-855 mentions nothing about opinion polls, nor does it suggest that they should be relied upon in making estimates of the number of people requiring monitoring. l
ALAB-855, slip op. at 17.
LILCO raises a red hearring by interpreting this language to mean that LILCO must necessarily plan to monitor all EPZ residents.
Contrary to LILCO's gloss on the Appeal Board's language, the Appeal Board's holding is not a per se requirement that LILCO be prepared to monitor all EPZ residents. Rather, it simply requires that LILCO make an appropriate estimate of those members of the public who will require the protective actions of monitoring and decontamination and to provide adequate resources based on that estimate.
LILCO is, or should be, fully capable of making the necessary estimates.
IV.
Those Who Require Decontamination Should Be Decontaminated LILCO's Petition asks the Commission to ignore public safety when it asks for reversal of the Appeal Board language related to decontamination.
LILCO states that "ALAB-855 invites litigation about whether the applicant must decontaminate the public." Petition, at 5.
LILCO apparently contends that although it must monitor members of the public, it has no obligaticn to decontaminate those members of the public found to require decontamination.
The regulations cannot be read with such illogic and callous indifference to the purposes of emergency planning. As the Appeal Board held, monitoring must entail eventual decontamination of those found to be contaminated.
ALAB-855, slip op. at 17.
To assume otherwise makes emergency planning a cruel charade.
V.
The Issue of LILCO's Ability To Provide Appropriate Monitoring and Decontamination Resources At.Its Relochtion Center Has Been Pronerly Raised For Litigation LILCO claims that the contentions filed with the Licensing Board did not give fair notice of the issue of LILCO's ability to provide adequate monitoring and decontamination services at its relocation centers. To support its argument, LILCO grossly distorts the Licensing and Appeal Board rulings, the language of the Governments' contentions, and the factual record of the case. This is demonstrated by LILCO's statement that:
ALAB-855 appears to hold that once an intervenor alleges that a particular aspect of a broad safety issue is inadequate, he is entitled to later raise new contentions about completely unrelated aspects of that issue.
Petition at 6.
The Appeal Board made no such ruling. Rather, it simply held that Contentions 24.0 and 75 did, in fact, raise the issue of the planning basis for evacuees arriving at the relocation center for monitoring and decontamination.
ALAB-855, slip op. at 9.
LILCO fails to mention that the Appeal Board's decision was based on an exhaustive analysis by the Licensing Board. Specifically, af ter LILCO first raised the notice issue before the Appeal Board, the issue was remanded back to the Licensing Board as the body which was in the best position to judge the matter.2/ After a thorough review of the Governments' contentions and the lengthy proceedings in the case, the Licensing Board concluded that the issue i
of the number of evacuees to be monitored at relocation centers had indeed been raised in the contentions.lE/ The Appeal Board then thoroughly reviewed E/
Lono Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1),
ALAB-847, 24 NRC ___ (September 19, 1986) (slip op. at 8-9).
1S/
LBP-86-36, slip op. at 19.
The Staff did not disagree with the ccnclusions of the Licensing Board.
Egg NRC Staff Comments Pursuant to Memorandum and Order Dated November 4, 1986 (November 21, 1986).
l,-
the Licensing Board's decision and, granting due deference to the body in the best position to determine whether an issue was raised before it, saw no reason to disturb that decision.
ALAB-855, slip op. at 9-10.
This hardly constitutes the kind of important issue appropriate for Commission review.
The factual basis for the Appeal Board's decision on the notice issue is well supported by the record. Contention 24.0 alleged a failure by LILCO to arrange for adequate relocation centers for " anticipated evacuees." In addition, Contention 75 and its preamble raised the issue of whether LILCO's relocation centers could provide adequate radiological monitoring and decontamination for evacuaees. Thus, both the Licensing Board and the Appeal Board recognized that the Governments had properly raised the issue of whether LILCO's relocation centers could handle the number of people requir*.ng monitoring and, if necessary, decontamination.
LBP-86-36, slip op. 8-9, 13.11/
In raising the notice issue, LILCO is seeking to avoid the consequences of its own actions. LILCO repeatedly changed its relocation centers during the course of this proceeding. Thus, at various times, it has identified Suffolk County facilities, the Nassau Coliseum and LILCO facilities as reception centers.12/
To suggest that the Governments are obligated to amend 11/
LILCO quarrels with the Appeal Board's interpretation of two recent rulings in Philadelphia Electric Co. (Limerick Electric Generating Station, Units 1 & 2), ALAB-836, 23 NRC 479 (1986); ALAB-819, 22 NRC 681 (1985).
LILCO's reliance on the Limerick holdings is misplaced for two reasons.
First, in the instant case the issue of the number of evacuees to be monitored was specifically raised by the language of the Governments' contentions.
Second, in Limerick the Licensing Board narrowly interpreted the intervenous contentions from the start.
In contrast, the Licensing Board in this case clearly understood from the beginning that the Governments' contentions raised the issue of whether there was a proper planning basis for the monitoring of evacuees.
ALAB-855, slip op, at 9.
12/
The complete procedural history of this issue is reviewed in LBP-86-36, slip op. at 5-7 and 17. L__.
their contentions continually in the middle of litigation while LILCO makes multiple changes to its Plan is to encourage the licensing procedure to degenerate into quagmire of paptrwork. Neither the Licensing Board nor the Appeal Board imposed such an unnecessary requirement, and proceeded on what tne parties knew to be the litigable issues raised by the Governments' contentions.
Given the findings of the Licensing Board, the Appeal Board and the record in this procer ling, further review of the issue by the Commission is unwarranted.
CONCLUSION LILCO's Petition raises no issues worthy of Commission review.
Accordingly, the Petition should be denied.
Respectfully submitted, Martin Bradley Ashare Suffolk County Attorney H. Lee Dennison Building Veterans Memorial Highway Hauppauge, New York 11788
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Serbert H.' Brown Lawrence Coe Lanpher Christopher M. McMurray KIRKPATRICK & LOCKIIART 1800 M Street, N.W.
South Lobby - Suite 900 Washington, D.C.
20036-5891 Attorneys for Suffolk County i
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Fabian G. Palomino Richard J. Zahnleuter Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 Capital Building Albany, New York 12224 Attorneys for Governor Mario M.
Cuomo and the State of New York Stephen B. Latham Twomey,,Latham & Shea P. O. Box 398 33 West'Second Street Riverhead, New York 11901 Attorney for the Town of Southampton January 14, 1987' DOLFETEL u%HC January 14, 1987
'87 JAN 16 P4 :01 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ygg j : L j,
00CKEil% >.. !Ti Before the Commission ER A ND!
)
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 PETITION FOR REVIEW OF ALAB-855 have been served on the following this 14th day of January, 1987 by U.S. mail, first class, except as otherwise noted.
Lando W. Zech, Jr., Chairman Comm. James K. Asselstine U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Room 1113 Room 1136 1717 H Street, N.W.
1717 H Street, N.W.
Washington, D.C.
20555 Washington, D.C.
20555 William C. Parler, Esq.
Comm. Frederick M.
Bernthal U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 10th Floor Room 1156 1717 H Street, N.W.
1717 H Street, N.W.
Washington, D.C.
20555 Washington, D.C.
20555
Comm. Thomas M. Roberts Alan S. Rosenthal, Chairman U.S. Nuclear Regulatory Commission.
Atomic Safety and Licensing Room 1103 Appeal Board 1717 H Street, N.W.
U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 Mr. Howard A. Wilber Gary J. Edles, Esq.
-Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 Morton B. Margulies, Esq.
Comm. Kenneth M. Carr Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 1717 H Street, N.W.
Washington, D.C.
20555 Washington, D.C.
20555 Dr. Jerry R. Kline William R. Cumming, Esq.
Atomic Safety and Licensing Board Spence W. Perry, Esq.
i U.S. Nuclear Regulatory Commission Office of General Counsel Washington, D.C.
20555 Federal Emergency Management Agency 500 C Street, S.W., Room 840 Washington, D.C.
20472 Mr. Frederick J. Shon Anthony F.
Earley, Jr., Esq.
Atomic Safety and Licensing Board General Counsel U.S. Nuclear Regulatory Commission Long Island Lighting Company Washington, D.C.
20555 175 East Old Country Road Hicksville, New York 11801 l
Mr. William Rogers W. Taylor Reveley, III, Esq.*
Clerk Hunton & Williams Suffolk County Legislature P.O. Box 1535 Suffolk County Legislature 707 East Main Street Office Building Richmond, Virginia 23212 Veterans Memorial Highway Hauppauge, New York 11788 Mr. L. F. Britt Stephen B. Latham, Esq.
Long Island Lighting Company Twomey, Latham & Shea Shoreham Nuclear Power Station 33 West Second Street North Country Road Riverhead, New York 11901 Wading River, New York 11792 Ms. Nora Bredes Docketing and Service Section Executive Director Office of the Secretary Shoreham Opponents Coalition U.S. Nuclear Regulatory Comm.
195 East Main Street 1717 H Street, N.W.
Smithtown, New York 11787 Washington, D.C.
20555
- BY TELECOPY
a Mary M. Gundrum, Esq.
Hon. Michael LoGrande New York State Department of Law Suffolk County Executive 120 Broadway, 3rd Floor H.
Lee Dennison Building Room 3-116 Veterans Memorial Highway New York, New York 10271 Hauppauge, New York 11788 MHB Technical Associates Dr. Monroe Schneider 1723 Hamilton Avenue North Shore Committee Suite K P.O.
Box 231 San Jose, California 95125 Wading River, New York 11792 Martin Bradley Ashare, Esq.
Fabian G. Palomino, Esq.
Suffolk County Attorney Special Counsel to the Governor Bldg. 158 North County Complex Executive Chamber, Rm. 229 Veterans Memorial Highway State Capitol Hauppauge, New York 11788 Albany, New York 12224 Bernard M.
Bordenick, Esq.
David A.
Brownlee, Esq.
U.S. Nuclear Regulatory Comm.
Kirkpatrick & Lockhart Washington, D.C.
20555 1500 Oliver Building Pittsburgh, Pennsylvania 15222 Mr. Jay Dunkleburger Mr. Stuart Diamond New York State Energy Office Business / Financial Agency Building 2 NEW YORK TIMES Empire State Plaza 229 W.
43rd Street Albany, New York 12223 New York, New York 10036 Joel Blau, Esq.
Mr. Philip McIntire Director, Utility Intervention Federal Emergency Management N.Y. Consumer Protection Board Agency Suite 1020 26 Federal Plaza Albany, New York 12210 New York, New York 10278 Christypher M. McMurray KIRKPATRICK & LOCKHART 1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C.
20036-5891 l
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