ML20210N491
| ML20210N491 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 02/09/1987 |
| From: | Kline J, Margulies M, Shon F Atomic Safety and Licensing Board Panel |
| To: | LONG ISLAND LIGHTING CO. |
| References | |
| CON-#187-2482 86-529-02-OL, 86-529-2-OL, OL-3, NUDOCS 8702130135 | |
| Download: ML20210N491 (15) | |
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'NC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'87 FE810 P2 :26 ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
(TP Morton B. Margulies, Chairman Dr. Jerry R. Kline Mr. Frederick J. Shon IERVED FEB 101987
)
In the Matter of ) Docket No. 50-322-0L-3
) (Emergency Planning)
LONG ISLAND LIGHTING COMPANY )
) (ASLBP No. 86-529-02-0L)
(ShorehamNuclearPowerStation, )
Unit 1) ) February 9, 1987
)
MEMORANDUM AND ORDER (Ruling on LILCO's and Intervenors' Motion for Reconsideration of Schedule On January 22,1987, LILC0 moved for reconsideration of this Licensing Board's " Order (Setting Discovery and Hearing Schedule),"
issued January 14, 1987. Intervenors also separately moved on that same day for reconsideration of that Order. The Board established an expedited schedule for replies from the parties to both motions. All parties filed timely responses.
In its January 14, 1987 Order, the Licensing Board set the following schedule for hearing the mpecad reception center issue:
- 1. The time for discovery will conance immediately (January 14, 1987) and conclude on March 6, 1987.
- 2. LILCO's prefiled testimony is due on March 23, 1987; Intervenors' on April 6,1987 and Staff's on April 13, 1987.
- 3. Motions to strike testimony are due April 20, 1987 and
'V 8702130135 870209 Ch PDR ADOCK 05000322 )
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2 responses by April 27, 1987.
- 4. The due dates are the dates the documents are required to be in the hands of the Board and the parties.
- 5. The hearing will commence on May 4,1987.
LILCO requested the Board to reconsider and change its Order in the following respects:1
- 1. All prefiled testimony should be filed simultaneously. March 23, 1987, is a suitable date for this purpose.
- 2. Assuming a March 23 filing date for all testimony, motions to strike testimony should be due March 30 (instead of April 20 as in the Board's order); responses should be due April 6.
- 3. The hearing should commence on or about April 13, instead of May 4.
- 4. A minor modification as to the requirements for service on the Town of Southampton should be made, as detailed below.
- 5. Guidance is needed on summary disposition. In particular, the parties need to know whether filing motions for summary disposition will delay the beginning of the hearing.
Intervenors, in their motion, asked the Board to hold this proceedi,ng in abeyance pending:2 (1) a statement from LILCO as to whether it intends to revise its Plan or procedures (a) to remove the deficiency identified by the Licensing Board and Appeal Board orders (i.e., the Plan fails to include an estimate of, and planning for, the number of evacuees expected to require monitoring), and/or (b) to address other deficiencies identified by the FEMA RAC and town zoning boards; 1 LILC0's Motion for Reconsideration of the Board's January 14, 1987 Order (Setting Discovery and Hearing Schedule), January 22, 1987.
2 Suffolk County, State of New York, and Town of Southampton Motion for Reconsideration of Schedule, January 22, 1987.
3 (2) depending upon the LILC0 statement referenced in (1) (a) the filing and ruling on summary disposition motions, or (b) the issuance of Plan revisions; and (3) an order by this Board barring LILCO from further revising its reception center proposals or facilities and directing that LILC0 will be finally bound by the Board's decision in this litigation on whatever version of LILCO's Plan is identified as the subject of this proceeding.
3 4 On January 29 and 30, 1987 respectively, LILC0 and Intervenors filed answers that basically opposed each others motions for reconsideration. Staff filed its response on February 3, 1987.5 It did not object to granting the LILC0 motion but would deny that of Intervenors.
The Board considered the positions of the parties and without discussion of its reasons issued its rulings on their requests on February 4,1987, the day following receipt of the final pleading from Staff. In that Order we observed that we used that method to avoid inconvenience to the parties and that a memorandum discussing our determinations would issue shortly.
3 LILCO's Answer to Intervenors Motion of January 22, 1987 for Reconsideration of Schedule, January 29, 1987.
4 Opposition of Suffolk County, State of New York, and Town of Southampton to LILC0's Motion for Reconsideration of the Board's January 14, 1987 Order, January 30, 1987.
5 NRC Staff Response to Both LILC0's Motion for Reconsideration of the Board's January 14, 1987 Order (Setting Discovery and Hearing Schedule) and Intervenors' Joint Motion for Reconsideration of that Order, February 3, 1987.
4 Our findings were that the January 14, 1987 scheduling order would remain in effect, except that it was altered in the following respects:
- 1. -Intervenors' and Staff's prefiled testimony is due on April 6, 1987; motions to strike testimony are due April 13, 1987; and responses to the motions by April 20, 1987. The hearing will commence April 27, 1987.
- 2. Service on the Town of Southampton is deemed adequate if the document to be served is tendered on the date due to a carrier for overnight express delivery service.
- 3. A schedule will not be arranged for the filing of motions for summary disposition because the motions could require significant amounts of time for review and thereby delay the hearing.
- 4. The alleged violations of local zoning ordinances that the use of the Bellemore and Roslyn facilities could create are properly matters to be determined by a state court. Until one or more of the parties obtains such a ruling, this Board will delay making a decision on this issue until it decides all other remaining issues before it.
In this Memorandum, we set forth the reasoning which underlies our determination of all issues raised for consideration by the parties.
Additionally, we deny Intervenors' request to hold the hearing in abeyance for any of the reasons they cite.
LILCO's Motion We treat the requests expressed in LILC0's motion seriatim, in the order.in which they were stated in that motion (LILCO's Motion at 1-2):
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- 1. - A11 prefiled testimony should be filed simultaneously. March 23, 1987 is a suitable date-for-this purpose.-
LILCO argues that simultaneous filing has been the general rule in this case, that sequential filing would likely necessitate a rebuttal phase, that Intervenors have themselves supported simultaneous filing in the past, that FEMA, whose testimony will be that of the Staff, does not
~ object to' the earlier, simultaneous filing, and that staggered filing -
-(with LILC0 filing first) gives LILCO less time to prepare than it gives 1-the other parties. (LILCO Motion at 2-3).
Intervenors urge that we break with past practice, noting that the posture of the case at present differs from that which obtained when simultaneous filings were ordered. Here, Intervenors argue, the same fluidities in LILCO's emergency plan which they saw as reasons to hold 4
the case in abeyance (questions centering on FEMA RAC-perceived inadequacies and possible unavailability of facilities) can only be properly addressed if LILC0 files testimony first, thus fixing more exactly the details of the plans. (Intervenors'Oppositionat4-6).
Staff simply defers to LILCO's view (Staff Response at 4).
i We see considerable merit in the idea of staggered filing in this
! case. LILCO's plans are indeed in a state of flux (albeit for reasons that may be beyond LILCO's control), and it seems to the Board not to be an undue burden on LILCO to require that it present its testimony first in order to fix the parameters of the plan to the extent possible, so i-l that the other parties may indeed know with what they must deal.
Further, staggered filings should result in a joinder of issues which s
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should redound to everyone's benefit. As to the necessity for rebuttal, we shall cross that bridge if and when we come to it.
Since, however, the Staff and FEMA have not expressed a need to review others' testimony before filing (LILC0's Motion at 3 Staff Response at 4) we feel some time may well be gained by requiring the Staff to file simultaneously with Intervenors, thus moving the hearing schedule ahead by one week.
- 2. Assumi'1g a March 23 filing date for all testimony, motions to strike testimony should be due March 30 (instead of April 20 as in the Board's order); responses should be due April 6.
The short of our view on this point is simply that (as set forth supra) we do not contemplate simultaneous March 23 filings. In its motion LILCO expresses the view (which impacts on the entire schedule) that the time that the Board allowed from filing testimony to starting the hearing was " unreasonably long" (LILC0's Motion at 3). We note, however, that the entire advance of three weeks proposed by LILCO results from the simultaneous filing date assumed above. The parties note this also (Staff Response at 5; Intervenors' Opposition at 7-8).
We are acutely aware of another factor which militates against any Draconian measures designed to advance the hearing date. This hearing is one of two involving the same parties, interlocking Boards, and (in all probability) many of the same witnesses. Our sib-hearing, OL-5, is now scheduled to start on or about March 9. There is no way to teli exactly how long it may run, but a drastic advance of this OL-3 hearing
7 would almost certainly entail conflicts. We see no need to court such troubles.
- 3. The hearing should comence about April 13 instead of May 4.
For the reasons discussed under points 1 and 2, supra, we feel that an advance to April 27 is as great ag advance as will be equitable and readily supportable.
- 4. A minor modification as to the requirements for service on the Town of Southampton should be made . . .
LILC0's proposal for express mail service is acceptable to Intervenors and to Staff. (Intervenors' Opposition at 8; Staff Response at5). We therefore grant this request.
- 5. Guidance is needed on sumary disposition. In particular, the parties need to know whether filing motions for sumary disposition will delay the beginning of the hearing.
Staff simply supports LILCO's request that we inform the parties as to whether motions for sumary disposition would delay the start of the hearing (Staff Response at 5). Intervenors urge that, if summary disposition motions are contemplated, we should indeed build in extra time before the start of the hearing, and they use this matter to urge again that we grant their motion that the proceedings be held in abeyance pending sumary disposition motions. (Intervenors' Opposition at8-9).
The Board has chosen not to set a schedule for the filing of motions for sumary disposition because the hearing is already set for a time not far off. The submission of motions could result in
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insufficient time to fully review them and then again having to treat with the issues on hearing. Another approach could result in taking
' time for the review of the motions which would delay the hearing, without assuring not having again to take the issues up on hearing.
None of the foregoing is acceptable. The Board chooses not to invite sumary disposition motions by setting a schedule for them.
Intervenors' Motion Although Intervenors' motion of January 22, 1987 is styled as a motion for reconsideration of the January 14, 1987 scheduling order, it is in effect a new motion involving a stay of the proceeding. The schedule order dealt strictly with the specific times when the discovery process was to proceed, testimony and motions were to be filed and the hearing was to commence. Intervenors' motion would stay the entire process based on grounds never proffered or considered before. The purpose of the motion is not to reconsider what previously transpired as to scheduling, but it seeks for Applicant to pursue a whole new course of conduct, incidental to which would be the delay of the proceeding until that is accomplished. It would be possible to deny the motion on the basis that it is out of order and untimely, but the other parties had no difficulty in responding to it and the better practice is to decide the motion on its merits which we will do.0 0 Staff also introduced a matter out of order in its February 3,1987 response to Applicant's and Intervenors' motions. Staff introduced (Footnote Continued)
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9 By their motion, Intervenors seek that the Board hold any further proceeding in abeyance pending:
- (1) a statement from LILC0 as to whether it intends to revise its Plan or procedures (a) to remove the deficiency identified by the Licensing Board and Appeal Board orders (i.e., the Plan fails to include an estimate of, and planning T6r, the number of evacuees expected to require monitoring), and/or (b) to address other deficiencies identified by the FEMA RAC and town zoning boards; (2) depending upon the LILC0 statement referenced in (1) (a) the filing and ruling on sumary disposition motions, or (b) the issuance of Plan revisions; and (3) an order by this Board barring LILC0 from further revising its reception center proposals or facilities and directing that LILC0 will be finally bound by the Board's decision in this litigation on whatever version of LILCO's Plan is identified as the subject of this proceeding.
Intervenors' request is first premised on the rulings of this Board and the Appeal Board that for the LILCO Plan to be found adequate the Applicant must provide an estimate of the number of evacuees expected to require monitoring. ALAB-855, 24 NRC (December 12,1986);22NRC 410, 417, 430-31 (1985). The issue is pending before the Commission on (FootnoteContinued) the matter of holding a joint prehearing conference by the OL-3 and .
OL-5 Licensing Boards to attempt to minimize the impact of those proceedings on FEMA resources. Staff had previously written to those Boards on January 27, 1987 in regard to this concern. When the February 3 response to the motions was submitted, Staff was evidently unaware of this Board's answer to Staff's January 27 proposal. In a letter to Staff dated February 2, we advised of the Board's being sympathic to the conservation of FEMA's resources, but that since there were no specific proposals to the Board as to how this was to be accomplished, it was not appropriate to hold a conference. The February 3 Staff response provides no specific proposals; thus, we find no basis to change our prior decision.
10 LILCO's petition for review, which Intervenors oppose. It is Intervenors' position, that as a precondition to going forward with meaningful litigation on the relocation center issues identified in this proceeding, there must be a correction of the.5already identified
" dispositive Plan deficiency." Intervenors assert a choice must be made. Either: (1) the parties should go forward with the litigation, or sumary disposition of the existing Plan be had and no further revision be permitted; or (2) the schedule should be put on hold until LILCO attempts to revise its Plan to correct the identified deficiency and include a planning basis which complies with the Board's ruling.
The Board disagrees with Intervenors that rectifying the deficiency in the Plan found by this Board and affirmed by the Appeal Board, i.e.
the failure to estimate the number of evacuees expected to require monitoring, is a condition precedent to proceeding with the subject matter of this proceeding. Although the number of evacuees expected to require monitoring bears on determining the adequacy of the reception centers, there is no reason that demands that the number of evacuees be established first. For example, the reception centers might first be shown to be able to accommodate a given number of evacuees and then it could be established that the estimated number of evacuees falls within that capacity. Intervenors may not like such a procedure, but there is nothing to prohibit Applicant from proceeding in this manner or another of its choosing. The case has developed in a way that facilitates such a course. It has proceeded on dual tracks. The first track was i brought about by Applicant's appeal, resulting in ALAB-855 (the number I
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11 of evacuees expected to require monitoring). The other track is brought about ALAB-832, 23 NRC 135,157-162 (1986) (the reception center issue),
resulting from Intervenors' appeal.
Applicant's method of proceeding may seem cumbersome, but it does not prejudice Intervenors. LILC0 can pursue its own hearing stratagem and presumably accepts the risks in doing so. The previously found deficiency in the Plan with regard to the number of evacuees to be moni.tored does not preclude immediate litigation of the reception center issues, which can be pursued as a discrete matter. Furthennore, nothing else has been presented in regard to the number of evacuees to be monitored that would warrant holding the proceeding in abeyance.
Discovery has been afforded the parties and it is a tool that may be utilized to obtain desired information without the need for holding the proceeding in abeyance.
Similarly, there is no basis to hold the proceeding in abeyance pending receipt of a statement from Applicant addressing deficiencies identified by the FEMA RAC Comittee and town zoning boards and the issuance of Plan revisions.
Intervenors have provided information that the latest FEMA RAC review of the LILC0 Plan (Revision 8) found as inadequate Applicant's proposal to monitor only the driver of an automobile and to assurne that the passengers are uncontaminated if the driver is not contaminated.
Intervenors would hold the proceeding in abeyance pending receipt of a statement from LILCO whether it plans to revise the Plan and if it does to await the revision.
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0 12 We find no basis to stop the proceeding from going forward to await any LILCO statement. Such information can be obtained via the discovery process and there is no need to halt the proceeding beyond the discovery period to await it.
As to keeping the proceeding from going forward in order to await a Plan amendment, we have not found it necessary to do so in the past.
The Board has proceeded with litigation of disputed matters involving the current Plan revision before the Board. We do not find it necessary to depart from that practice here where the FEMA RAC criticism affects a limited area of the matters under consideration. Emergency planning is a developmental process and it is not one that lends itself to being frozen in place while being reviewed as to its adequacy. That is not to say that extensive revisions of plans would not require a new opportunity to review them before proceeding. That is not the case here.
Intervenors cite town actions giving notice that using the Bellemore and Roslyn facilities as reception centers would violate local zoning laws as a basis for claiming that the facilities are not available as proposed in LILCO's Plan. They go on to assert that Applicant should substitute new facilities for the ones identified in Revision 8 and that the proceeding should be held in abeyance pending a statement by LILCO of its intentions.
Again, we have a situation where the discovery process can be made use of without any further delay of the proceeding and it should be so employed.
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13 Applicant disclosed in its answer to Intervenors' motion that it will not accede to the opinion of the towns on the matter of zoning and it would litigate the issue before the Board. It thus is presumptuous for Intervenors to take the position that the facilities are not available and Applicant should at this time substitute new facilities.
There is no basis to delay the proceeding to await a change in the Plan as to the Bellemore and Roslyn facilities. Applicant will not do so in advance of litigating the matter which is within its right.
The issue of whether the zoning laws prohibit the use of the Bellemore and Roslyn facilities as reception centers involves New York law. The fora most competent to make that determination are the New York courts. The Board will handle the matter as it did when other New York laws had to be interpreted in this proceeding. Until one or more of the parties obtain such a ruling, this Board will delay making a decision on this issue until it decides all other remaining issues before it.
As part of their motion for reconsideration, Intervenors assert that the Applicant should be given a single last opportunity to make its case. They want the Board to limit Applicant to making its case on the basis of the existing Plan if LILCO chooses to proceed that way or on the next revision of the Plan if a change is made. Intervenors advise that this is the fifth attempt to satisfy the regulatory requirements governing reception centers and would be the third time it would be litigated. They decry the time and effort spent in treating with the matters in the past and want to stop it from centinuing in the future, i
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14 Five times is no small number of instances to attempt to perfect a part of an emergency plan. The matter must also be viewed with the fact that Applicant's attempts have been bona fide and that the facilities were withdrawn by others. There is no basis in the law and none was cited for the proposition that Applicant should get only one more opportunity, no matter what. LILCO established its right to a further 1
hearing under the applicable law. It should be permitted to exercise that right which was given without condition. Nothing has transpired which requires that it be conditioned at this time. It may well be that Applicant may perfect its case on the next attempt. If it does not, and 4
it seeks another opportunity, we will have to decide the matter then l
! under the applicable law. The matter of summary disposition raised by i
Intervenors has been disposed of in the discussion of LILCO's motion.
ORDER Based on all of the foregoing, upon reconsideration, it is hereby ordered that the scheduling Order of January 14, 1987 shall remain in effect, except to the extent it is revised as follows:
- 1. Intervenors' and Staff's prefiled testimony is due on April 6, 1987; motions to strike testimony are due April 13, 1987; and responses to the motions by April 20, 1987. The hearing will commence April 27, 1987.
- 2. Service on the Town of Southampton is deemed adequate if the l document to be served is tendered on the date due to a carrier for overnight express delivery service.
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- 3. A schedule will not be arranger for the filing of motions for sununary disposition because the motions could require significant amounts of time for review and thereby delay the hearing.
- 4. The alleged violations of local zoning ordinances that the use of the Bellemore end Roslyn facilities could create are properly matters to be determined by a state court. Until one or more of the parties obtains such a ruling, this Board will delay making a decision on this issue until it decides all other remaining issues before it.
FOR THE ATOMIC SAFETY AND LICENSING BOARD imari Erton B. Ma'rgulies, C@E ADMINISTRATIVE LAW JUDG M
Jfrry R. p ine AUMINISTRATIVE JUDGE E> '
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Frederick J. Sho ADMINISTRATIVE DGE Dated at Bethesda, Maryland this 9th day of February,1987