ML20207S604
| ML20207S604 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 03/17/1987 |
| From: | Barth C, Johnson G NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#187-2819 OL-3, NUDOCS 8703200087 | |
| Download: ML20207S604 (16) | |
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NUCLEAR REGULATORY COMMISSION 1
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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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(Err.ergency Planning)
(Shoreham Nuclear Power Station,
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Unit 1)
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1 NRC EfAFF RESPONSE IN OPPOSITION TO MOTION TO ADMIT A NEW CONTENTION Charles A. Barth Counsel for NRC Staff George E. Johnson Counsel for NRC Staff March 17,1987 B703200007 97o337
{DR ADOCK 05000322 90(;t PDR
03/17/87 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter 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 MOTION TO ADMIT A NEW CONTENTION I.
INTRODUCTION On February 25, 1987, Intervenors, Suffolk County, the State of New York and the Town of Southampton (Intervenors) filed a motion with the Commission to admit a new contention relating to emergency planning for medical services.
The Staff opposes the motion for the reasons herein.
II.
BACKGROUND 4
A review of the history of the emergency planning litigation in this proceeding reveals that Intervenors have attempted, unsuccessfully, to raise contentions similar to the one recently proffered.
By an Order dated September 7,1982, the Licensing Board denied admission of a contention which alleged a failure to have up-to-date agreements with support organizations to provide medical services in compliance with 10 C.F.R. 5 50.47(b)(12).
LBP-82-75,16 NRC 986, 999 (1982).
Following dismissal of all of Intervenors' onsite emergency planning contentions for failure to comply with the Licensing Board's
Order of November 9, 1982, regulating the presentation of evidence on the onsite emergency planning contentions (LPB-82-115, 16 NRC 1923 (1982)), the Appeal Board affirmed, in passing, the Licensing Board's rejection of the medical services contention.
20 NRC 1102, 1180 n.472
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(1984).
The Commission did not review ALAB-788 insofar as it addressed emergency planning medical services and thus the Licensing Board's decision on those matters is final agency action.
After the close of the hearing record on the utility-sponored offsite emergency plan (see LB P-85-12, 21 NRC 644, at 651 (1985)), on II August 29,
- 1984, the Intervenors on February 25,
- 1985, again proffered to the Licensing Board a contention dealing with arrangements for medical services in the event of an accident.
Scon thereafter, the Commission issued a Statement of Policy on 10 C.F.R.
I 50.47(b)(12),
50 Fed. Reg. 20892 (May 21,1985), stating:
. the Commission believes that Licensing Boards.
may find that applicants who have met the requirements of I 50.47(b)(12) as interpreted by the Commission before the GUARD decision and who commit to full compliance with the Commission's response to the GUARD remand meet the requirements of 5 50.47(c)(1) and, therefore, are entitled to license conditional [on] full compliance with the Commission's response to the GUARD remand.
(Footnote omitted.)
The Licensing Board denied admission of this proffered contention in its Memorandum and Order Denying Suffolk County's and State of New York's Motion to Admit New Contention," dated August 21, 1985.
The Licensing Board, without considering whether the record was closed and
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The Licensing Board reopened the record on January 28, 1985 for the limited purpose of hearing evidence on the reception center issue.
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without reaching the i 2.714 standards for admissible contentions, denied admission on the basis that the Commission was engaged in rulemaking (by publication for comment of a petition for rulemaking, 50 Fed. Reg. 20799 (May 20, 1985) and that Potomac Electric Power Company (Douglas Point Station, Units 1 and 2), ALAB-218, 8 AEC 79, 85 (1974) admonished Licensing Boards to refrain from accepting in an individual license proceeding contentions which are (or are about to become) the subject of general rulemaking by the Commission.
On August 26, 1985, the Licensing Board issued a " Concluding Partial Initial Decision," LBP-85-13, 22 NRC 410, dealing with the reopened reception center issues.
On March 26, 1986, the Appeal Board dismissed Intervenors' appeals from both the April and August 1985 partial initial decisions, thus rejecting Intervenors' appeal of the dismissal of the contention on compliance with I 50.47(b)(12). 2,/
ALAB-832',
23 NRC 135, 162 (1986).
Although the Commission, on September 19, 1986, determined to review ALAB-832, the issues within the scope of that review do not include compliance with 5 50.47(b)(12).
Thus, at the conclusion of the proceedings on both Applicant's onsite and offsite emergency plans,
the adjudication of compliance with 10 C.F.R. 5 50.47(b)(12) had achieved finality.
On September 12, 1986, the Commission published a further Policy Statement on Emergency Planning Standard 10 C.F.R.
I 50.47(b)(12),
-2/
See, Suffolk County, Ftate of New York, and Town of Southampton BWef on Appeal after Licensing Board August 26, 1985 Concluding Partial Initial Decision cr. Emergency Planning, November 6,1985, at 65-68.
51 Fed. Reg. 32904 (September 17, 1986), which further addressed the litigation of contentions on that subject.
The Commission affirmed its Policy Statement of May 21, 1985 and stated "until appropriate detailed guidance consistent with this policy statement is issued and implemented, the Licensing Boards may continue to reasonably find that any hearing regarding compliance with 10 C.F.R.
I 50.47(b)(12) shall be limited to issues which could have been heard before the Court's decision in GUARD v. NRC."
Pursuant to the Policy Statement, the NRC Staff on September 16, 1986 sent to the Federal Emergency Management Agency (FEMA) a draft guidance memorandum on medical services. 3_/
FEMA responded on November 13, 198G by issuing its " Guidance Memorandum (GM) M S-1, Medical Services", ba copy of which was sent by FEMA Associate General Counsel, William Cumming, to the Intervenors on December 29, 5,/
On February 25, 1987, the Intervenors filed the medical 1986.
services contention which is the subject of this Staff opposition.
Given that the record was closed on compliance with the requirements of 10 C.F.R. I 50.47(b)(12), for Intervenors to prevail and to have the Commission grant their motion to admit the medical services 3/
Memorandum from David Mathews, NRC, to Robert S.
Wilkerson,
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FEMA, September 16, 1986, a copy of which was placed in the NRC Public Document Room.
4/
Dave McLaughlin FEffA to FEMA Regional Directors, November 13, 1986, a copy of which is in the Public Document Room.
5/
By Information Notice 86-98, dated December 2,1986, the Office of Inspection and Enforcement provided FEMA GM MS-1 to all licensees, which was received by the PDR on December 8,1986.
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contention, they must not only satisfy:
(1) the criteria for acceptance of a late filed contention (10 C.F.R. I 2.714(a)(1)(1-v)); and (2) the basis and specificity criteria for an acceptable contention (10 C.F. R.
I 2.714(b)), but also must satisfy (3) the stringent criteria for reopening the evidentiary record (10 C.F.R.
I 2.734).
The Intervenors' motion fails to satisfy any of these regulatory prerequisites to admitting their new contention, and, as a result, the motion must be denied.
III.
DISCUSSION A.
Reopening the Evidentiary Record Pursuant to I 2.734 As the preceding review of the record in this proceeding shows, it is clear that the Licensinfr 90ards hearing contentions on onsite and offsite emergency response plans for Shoreham have long ceased to have jurisdiction over new contentions arising out of those plans.
4 (Intervenors, in effect, acknowledge this by presenting their Motion to the Commission.)
Given the fact that the record on compliance of those plans with 10 C.F.R.
I 50.47(b)(12) has long been closed, Intervenors were required to address the Commission's regulations regarding 6_/
reopening the record, set forth in 10 C.F.R.
I 2.734.
Based on l
6/
Under 10 C.F.R. I 2.734(a):
j A motion to reopen a closed record to consider additional evidence will not granted unless the following criteria are satisfied:
O (1) The motion must be timely, except that an exceptionally grave issue may be considered in the discretion of the presiding officer even if untimely presented.
(2) The motion must address a significant safety or (FOOTNOTE CONTINUED ON NEXT PAGE) 1
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Intervenors failure to address these requirements their motion may be summarily rejected.
Notwithstanding Intervenors' failure to make the required showing, the Str.ff addresses these criteria below.
First, under Section 2.734(a)(1), the motion must be timely. A copy of the FEMA guidance was sent to the Intervenors on December 29, 1986, and available to them in the public document room on December 8,1986.
If the FEMA GM MS-1 gives rise to a contention, as the Intervenors assert, then there is no explanation by Intervenors as to why their contention could not have been filed two months earlier.
Given the posture of the case, this delay may be considered significant.
More importantly, Intervenors acknowledge on page 10 of their Motion that the issues are the same basic ones which they tried to raise in 1985.
- Thus, by their own admission, there was no warrant for a delay in order to determine what issues they wished to litigate.
The two-month delay in framing and proffering their contention is not justified.
- Moreover, Intervenors have not identified what new facts with regard to any of the propositions in this contention have recently come into their possession which may have warranted this untimely filing.
(FOOTNOTE CONTINUED FROM PREVIOUS PAGE) environmental issue.
(3) The motion must demonstrate that a
msterfally different result would have been likely had the newly proffered evidence been considered initially.
In addition, the motion must be supported by affidavits setting forth the factual bases for the clains in 5 2.734(a), and in the case of a motion to reopen relating to a new contention, must satisfy the requirements for non-timely contentions.
10 C.F.R. 5 2.734(b),
(d).
Second, Section 2.734(a)('!) requires that the motion address a significant safety issue.
Ilere no significant safety issue is addressed.
Even assuming the recent guidance by FEMA could serve as a basis for an untimely contention, under their guidance no medical services arrange-ments by Applicant for Shoreham other than those previously found acceptable need be in existence until at least August 13, 1987.
See FEMA Guidance Memorandum MS-1, page 5.
The Applicant is presently in full compliance with NRC regulations relating to arrangements for medical services, as interpreted by the Commission.
Since Applicant is not now required to be in compliance with GM MS-1, there can be no safety issue at all.
To assert now that the Applicant will not be able to comply with the FEMA Guidance Memorandum MS-1 on August 13, 1987 is only speculation.
Finally, Section 2.743(a)(3) requires that the proponent of reopening must demonstrate that a materially different result would have been likely had the new evidence been considered initially.
The only new information presented by Intervenors is FEMA Guidance Memorandum MS-1.
Absolutely no evidence O has been proffered to show that Applicant will not comply with any requirements imposed upon it.
As a result there is no showing that different result would have been reached in this proceeding.
7/
Indeed,
no affidavits in support of Intervenors' motion were submitted.
I
The filing by Intervenors is not timely, does not raise a significant safety issue and there has been no showing that if the contention were s
ndmitted that a different result would appertain in this proceeding.
P.
Intervenors' New Contention Should Be Rejected Based On The Critoria For Late-Filed Contentions in 10 C.F.R. I 2.714(a)
Any proffering of a contention not within the time frame set out in 10 C.F.R. S 2.714(a) for the filing of contentions is a nontimely filing and must meet the criteria of 5 2.714(a)(1)(1-v). E The Intervenors have been on notice of the FEMA Guidance at least since their receipt of a copy sent to them by William Cumming, A ssociate General Counsel, FEMA, in late December.
The only hint of timeliness in the Intervenors' filing is their ipse dixit statement on page 8 of their motion that they filed "in as timely a manner as possible."
This self-serving statement does not rise to a
showing of good cause under 10 C.F.R.
I 2.714(a)(1)(i).
The Appeal Board has interpreted this standard as requiring that the new contention be tendered with the requisite degree of promptness after the document on which it is based [ FEMA Guidance MS-1] comes into existence. SI The FEMA Guidance lay in the hands of Intervenors' attorneys for almost two months before they filed their medical services contention, a contention which closely approximated two 8/
As stated in note 6, above,10 C.F.R. I 2.734(d) also requires that a motion to reopen the record to admit a new contention must satisfy the requirements for late-filed contentions.
9/
Duke Power Company, et al.
(Catawba Nuclear Station,
Units 1 and 2),
ALAB-687, T6FRC 460 (1982),
a ff'd,
CLI-83-19, 17 NRC 1041,1044 (1983).
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previously proffered Intervenor conte' tions.
On page 16 of their filing n
the Intervenors state that,"the issues are the same basic ones which the a
Governments attempted to raise in 1985."
Intervenors claim that their involvement "in two ' concurrent proceedings before Licensing Boards" Justifies a delay of two months in filing their, late contention. This is not good cause folr their untimeliness.-
See, Statement of Pcifey on Conduct
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of Licensing Proceedings, CLI-81-8,13 NRC 452, at 454 (1381).
Section 2.714(a)(1)(ii) requires consideration of the availability of other means - by which the Intervenors' interests will be protected.
On
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page 9 of their fihng the Intervenors articulate their interest. as being "the adequecy of tn'e medical facilities and training..."
Ilowever, if they are concerned with the adequacy of medical services and: training under Commission regulations, as they state, then they should participate in emergency planning and exe' cises for the ' horeham facility ja order to r
S assist the Commission in determining whether or not its r'chuirements can be satisfied.
The three governmants which have proposed this contention and which argue that there are no other means to
- protect their interests in adequate medical services have refused to engage in planning for the prompt and efficient delivery of services to the affected population defined in the Commission's rule.
This factor surely weighs heavily against Intervenors.
Section 2.714(n)(1)(lil) requires consideration of the extent to which Intervenors' participation may reasonably be expected. fu assist in developing c. sound record. On pages 9, and 10 of their filing Inteivenors state that doctors of the Suffolk County Health Departmet,t will be called and that they can offer important data on the adequacy of medical I
a
facilities.
However, here, the County is refusing to engage in emergency plsnning.
No showing is made that they have tried to ascertain all possible means of aid that might be rendered to contaminated, injured individuals in the event of an emergency.
Thus, it is clear that such witnesses' testimony would not be of very much value in developing a record on the adequacy of medical services or on the ability to develop those services.
This factor may weigh slightly in favor of Intervenors, but should not be accorded much weight in the peculiar circumstances of this case.
Section 2.714(a)(1)(iv) requires consideration of the extent to which the Intervenors' interest will be represented by existing parties.
In the context of this proceeding, it is clear that no other party will represent Intervenors' interest in showing that provisions for medical services are i
inadequate.
However, as noted in connection with the second factor, if i
l the interest under consideration is a commitment to taking steps to assure that the provisions of 10 C.F.R. I 50.47(b)(12) continue to be met, both q
the Staff and Applicant have the same interest.
The Staff must assure itself that npplicant meets the regulatory requirements, and Applicant 1
naintains the burden of showing regulatory compliance. Thus, this factor
.daes not weigh substantially for or against late admission of the contention.
Finally, Section 2.714(a)(1)(v) requires consideration as to whether l
admission of the proffered contention will broaden the issues or delay the l
proceeding.
There can be little dispute that the admission now of a new contention on the adequacy of medical services will both broaden the I
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issues and delay the proceeding.
This factor clearly weighs against admission of the new contention.
Fcr the above reasons, it is the Staff's view that consideration of the factors set forth in 10 C.F.R.
I 2.714(a)(1)(1-v) weighs heavily against admission of the medical services contention proffered by the Intervenors.
C.
The Specificity and Bases Requirements of 10 C.F.R. I 2.714(b)
In order for Intervenors' proffered medical services contention to be adm!tted as a matter in controversy in this proceeding, it must satisfy the Commission's requirement that the basis for the contention be set forth with reasonable specificity.
10 C.F.R. I 2.714(b).
The purpose of the specificity and basis requirements of 10 C.F.R. 5 2.714 are (1) to assure that the contention'in question raises a matter appropriate for litigation in a particular proceeding, b (2) to establish 10/ A contention must be rejected where:
(a) it constitutes an attack on applicable statutory requirements; (b) it challenges the basic structure of the Commission's regulatory process or is an attack on-the regulations; (c)e it is nothing more than a
generalization regarding the
' intervenor's views of what applicable policies ought to be; (d) it seeks to raise an issue which is not proper for adjudication in the proceeding or does not apply to the facility in question; or (e) it seeks to raise an issue which is not concrete or litigable.
Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20-21 (1974).
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a sufficient foundation for the contention to warrant further inquiry into the subject matter addressed by the assertion and, (3) to put the other parties sufficiently on notice "... so that they will know at least generally what they will have to defend against or oppose. "
Peach Bottom, supra at 20.
The proffered contention satisfies none of these purposes.
In light of the Commission's September 17, 1986 Policy Statement, litigation of compliance with GM MS-1 is clearly contrary to the regulatory process as the Commission has interpreted it.
A claim that Applicant fails to meet a requirement not yet applicable constitutes an attack on the Commission's interpretation of the applicable regulation.
Second, Intervenors have offered no factual basis upon which it could be concluded, if established, that Applicant will not be able to meet FEMA Guidance MS-1.
A claim that Applicant does not now meet that guidance is not a basis for inquiring further.
Finally, Intervenors' failure to explain why they believe it is unlikely or impossible for Applicant to meet the FEMA guidance does not provide the other parties with adequate notice of what evidence they will have to defend against.
For all these reasons, the contention lacks basis, and must be rejected as failing to satisfy the standard of 10 C.F.R. 5 2.714(b).
IV.
CONCLUSION
(
Intervenors have failed to satisfy any of their burdens in proffering l
a late contention after the hearing record has been closed.
Intervenors' l
failure to provide reasons for waiting until February 25, 1987 to file its contention, to show any present safety significance of Applicant's alleged I
current non-compliance with 10 C.F.R. I 50.47(b)(12), or to provide any
evidence showing that a different result in the prior proceeding would I
flow therefrom, requires a finding that the requirements for reopening the record have not been met.
A balancing of the late-filed contention factors weighs heavily against admission, principally due to both the presence of other means to protect Intervenors' interest in protecting the health and safety of'its citizens and the likelihood of substantial delay were the contention to be admitted for litigation. Finally, the lack of any showing of current regulatory non-compliance, or pleading of facts which would suggest the likelihood of future non-compliance requires finding that the contention, in any event, lacks basis.
For all the above reasons, the proffered contention must be rejected.
Respectfully submitted, M
Charles A. Barth Counsel for NRC Staff N
Georg E.
nson Counsel fo NRC Staff Dated at Dethesda, Maryland this 17th day of Maren,1987
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UNITED STATES OF AMERICA
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FUCLEAR REGULATORY COMMISSION 9
C-MAR 181987mt, t
BEFORE TIIE COMMISSION
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I In the Matter of
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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 "NRC STAFF RESPONSE IN OPPOSITION TO NOTION TO ADMIT A NEW CONTENTION" 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 17th day of March,1987.
Morton B. 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 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 Capi.ol Washington, DC 20555 Albany, NY 12:24 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 Douglas J. Hynes, Councilman Town Board of Oyster Bay Town Hall Oyster Bay, New York 11771
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Stephen B. Latham, Esq.
Herbert H. Brown, Esq.
Twomey, Latham & Shea Lawrence Coe Lanpher, Esq.
Attorneys at Law Karla J. Letsche, Esq.
r 33 West Second Street Kirkpatrick & Lockhart Riverhead, NY 11901 South Lobby - 9th Floor 1800 M Street, NW a
s 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 Bradley Ashare, Esq.
General Counsel Suffolk County Attorney Federal Emergency Management
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H. Lee Dennison Building Agency Veteran's Memorial Ilighway 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 195 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 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 Mary M. Gundrum, Esq.
Barbara Newman New York State Department of Law Director, Environmental Health g
120 Broadway Coalition for Safe Living 3rd Floor, Room 3-116 Box 944 New York, NY 10271 Huntington, New York 11743 7
5 :u W Ge rge p. Jctmson unsel for !fRC Staff l