ML20211K273
| ML20211K273 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 11/10/1986 |
| From: | Pirfo O NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#486-1495 OL-5, NUDOCS 8611170112 | |
| Download: ML20211K273 (9) | |
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I '/9 5 00LnEiC Uwr UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'86 NOV 13 All :31 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD f0C f!ib.~-
BF A Wi In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-5
)
(EP Exercise) l (Shoreham Nuclear Power Station,
)
Unit 1)
)
NRC STAFF RESPONSE TO SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON OBJECTIONS TO PREHE ARING CONFERENCE ORDER I.
INTRODUCTION On October 3, 198E, the Licensing Board issued its Prehearing Conference Order (Ruling on Contentions and Establishing Discovery Schedule).
On October 27, 1986, intervenors Suffolk County, the State of New York, and the Town of Southampton filed objections to that Order (hereinafter " Objections").
Applicant LILCO requested Icave to respond to those objections.
See "LILCO's Motion for Leave to Respond to Motions for Reconsideration of October 3, 1986 Prehearing Conference Order"
("LILCO's Motion"), (filed October 30, 1986).
By Order of November 4, 1986, the Board granted LILCO's request l
to respond to the objections raised by the intervenors.
The Board stated that the objections to the denial of Contentions EX. 1-14 need not be addressed, but indicated that it was "particularly anxious" to hear the parties' views on the intervenors' position concerning the " denied" contentions, stated at pages 2-3 of the Objections.
In accordance with 8611170112 861110 PDR ADOCK 05000322 Q]
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the Board's ' order, the Staff herein responds to the Objections filed by the intervenors.
II.
DISCUSSION The Staff disagrees wtih the intervenors' position concerning the
" denied" contentions (thow which the Board dismissed with the comment that these contentions or subparts will be permitted to be litigated in connection with some other admitted contention).
The Intervenors assert (Objections, at 2-3) that the Board action amounted to a simple restructuring of the contentions by the Board into a format deemed more efficient for the presentation of evidence and proof.
If intervenors' interpretation were accepted, however, the actual effect of the denial of admission would be only nominal.
The Staff does not believe that the Licensing Board intended such a result; if it had, there is certainly no indication of that purpose in the Prehearing Conference Order.
The Staff believes,
nevertheless, that some uncertainty and ambiguity surrounds the Board's intentions and actions on these " denied" but subsumed or combined contentions.
Thic uncertainty should be resolved promptly in order to permit all parties to uriderstand what issues i
should or should not be addressed in this proceeding.
Accordingly, the Staff supports LILCO's suggestion that the Board and all parties review and discuss a proposed standard text or " Revised Standard Version" of the contentions, which LILCO states it is now preparing.
See LILCO's Motion, at 3.
As an aid to the parties in furtherance of this effort, some clarification by the Board with respect to its intent in making these
" denials" would be helpful.
t
{
r The Staff's views with respect to intervenors' Objections on specific contentions are addressed seriatim in the discussion below.
Contention EX 15-J - The intervenors' motion attempts to raise again the issue of planning for offsite contaminated injured individuals. See 10 C.F.R.
I 50.47(b)(12).
The Board has twice before ruled on the substance of this contention, and rejected it both times.
On February 25, 1985, the intervenors moved to admit a contention on the meaning of " contaminated injured individual."
The NRC Staff then opposed the contention on the grounds that this was a generic issue inappropriate for consideration in a licensing proceeding. The Commission issued a policy statement in this regard on May 16, 1985 and, relying on this statement, the Board denied the Intervenors' motion.
See also ALAB-832, 23 NRC 135, 154-157 (1986).
In their proposed exercise contentions filed on August 1,1986, intervenors made the same argument, and the Board again rejected it.
See Prehearing Conference Order, at 11.
The Objections set out no new substantive basis upon which admission of the contention should be granted now.
Intervenors' attempt to distinguish subpart J of proposed Contention EX 15 frora the earlier denied contention is unpersuasive.
Litigation of the " implementation" issue as being different from the " Plan-as-written" issue does not compel admission of the subpart as intervenors argue.
Even if the allegations of this contention were proved true, i.e., that these particular procedures and arrangements were excluded from the February 13 exercise, this would not demonstrate that the plan was fundamentally flawed.
Under the Commission's directive, if a contention does not tend to show such a fundamental flaw, it should not be admitted
in the proceeding.
CLI-86-11, at 5.
Reconsideration of the rejection of Contention EX 15-J should thus be denied.
Contention EX 16-M - The Board rejected this contention for the reason that it deals with the realism issue just as did Contentions EX 8 through 14.
The intervenors attempt to distinguish the subject matter of this subpart by pointing out that it refers to several other governmental entities (e.g.,
Nassau County) besides Suffolk County and New York State.
This provides no distinction, however.
Simply because Nassau County's participation is included under this contention does not render the subpart any less inadmissible than are Contentions EX 1-14.
The Doard denied admission of Contentions EX 1-7 on the grounds that these allege matters that were already litigated and were not raised by the EP cxercise; and it rejected Contentions EX 8-14, on the grounds thtt the realism argument has been remanded by the Commission to the Licensing Board for further consideration in a separate proceeding.
(sco PIIC Order, at 11).
For the same reasons, Contention EX 16-M must also be rejected.
As the Board stated, no basis is presented for believing that new material facts arose from the EP Exercise that would l
have any important bearing on the issue of the lack of government participation.
See PIIC Order, at 10-11.
The Objections do nothing to change that assumption.
Dismissal of Contention 16-M should not be reconsidered.
Contention EX 18-B
- This subpart makes essentially the same argument as did Contentions EX 8 through 14 (and EX 16-M), that is, there was no participation by the state and local governments.
This l
l
- l
~
subpart' was properly rejected, for the reasons stated with regard to Contention EX 16-M above.
Contention EX 22-B through E, G, and H - The issue of planning for schools (22-B) has already been litigated in this proceeding.
See 21 URC 644, 858-68.
Similarly, tbc number of buses required (22-H) has been disposed of before.
21 NRC 817-27.
As for the other subparts, availability of drivers (22-C), relocation center issues (22-D and E), and evacuation of hospitals (22-G), as the Staff stated previously, these have been remanded to the Board and could be litigated in other hearings in this litigation.
See ALAB-832, 23 NRC 135, 149-163.
These are not appropriate contentions for the EP Exercise proceeding since, as stated 4
by the Board, "[n]one of these matters arose during the exercise."
As the Board recognized in denying the Contention EX 33 admission of this contention, even if its allegations were proved or accepted as true, it does nothing to show a fundamental flaw in the plan; rather, it merely demonstrates, if anything, only a particular failure or delay in implementation on the day of the exercise.
As the Licensing Board stated, "[o]ne cannot merely utter the words ' constituting a fundamental flaw' as part of the contention to have those words act as a shibboleth and allow its admittance as litigable."
PHC Order, at 2.
There is nothing in the contention that would preclude a reasonable assurance finding.
Consequently, it cannot be considered to demonstrate a
fundamental flaw,
even if the contention were true.
The i
reconsideration of Contention EX 33 should be rejected.
Contention EX 34 - In that this contention cites specific instances where route alert drivers were delayed, it could tend to show the backup
notification l rocedures in the Plan are insufficient to comply with the i
regulatory requirement of prompt public notification.
On this basis, the Staff did not oppose admission of the contention and, to this extent, does not oppose the Objections with respect to Contention 34.
Contention EX 35 - With respect to this Contention, the intervenors maintain that they "cannot assert a simple objection to the Board's ruling. "
Objections, at 21.
To " assist the Board in its reconsideration" the intervenors have merely attached relevant pages of their August 25 reply to the Applicant and Staff's original objections.
The Staff maintains its original objection to this Contention, simply put, that the contention fails to allege a violation of an NRC regulatory requirement.
Contention 38-K - The Staff initially did not oppose admission of Contention 38, taken as whole, but objected only to the extent that various individual subparts were redundant.
Given intervenors' explanation of what it intended under 38-K, the Staff does not oppose admission of this subpart now.
Contention EX 43 - The Staff initially did not oppose admission of Contention EX 43-A, and does not oppose its admission on reconsideration.
With respect to 43-B, the intervenors' motion fails to address the Board's ruling that this is an attempt to raise an already litigated issue.
IIaving already been decided on the merits, Contention 43-B was properly rejected.
Contention EX 48 - This contention alleges failure to provide for contaminated injured individuals.
It was properly rejected for the same reasons discussed above with respect to Contention EX 15-J, that is, the Commission has excluded this matter from this proceeding.
The
r n-Objections fail to present any new facts or arguments which would alter that conclusion.
III.
CONCLUSION As stated above, the Staff does not agree with the intervenors' view stated at pages 2-3 of the Objections that the " denied" contentions listed may be fully litigated under the rubric of certain other admitted contentions.
The Staff agrees with intervenors and LILCO that the Prehearing Conference Order is somewhat ambiguous as to the status of these " denied" contentions and that said ambiguity must be resolved.
With regard to specific contentions, for the reasons stated herein, the Staff opposes the intervenorc' Objections to the Prehearing Conference Order with regard to the denial of admission of Contentions EX 15-J,16-M,18-B, 22-B through E, 22-0 and H, 33, 35, and 48.
The Staff does not oppose admission of Contentions 34, 38-K, and 43-A.
Respectfully submitted, Oreste Russ Pir Counsel for N Staff Dated at Bethesda, Maryland this 10th day of November,1986
r N[;j UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'86 NOV 13 A11 :31 000CN i.
c BEFORE THE ATOMIC SAFETY AND LICENSING BOARD b
-i 5FANe In the Matter of
)
^
)
LOPG ISLAND LICIITING COMPANY
)
Docket No. 50-322-0L-5
)
(EP Exercise)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
CERTIFTCATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPOMSE TO SUFFOLK COUFTY, STATF OF NEW YORK, AND TOWN OF SOUTIIAMPTON OBJECTIONS TO PRElIEARING CONFERENCE ORDER" in the above-coptioned proceeding have been served on the following by deposit in the United States mall, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail nystem or, as indicated by double asterisks, hand delivered or, as indicated by triple asterisks, by express mail, this 10th day of Dovember, 1986.
John H. Frye, III, Chairman **
Fabian G. Palomino, Esq.***
Administrative Judge Special Counsel to the Governor Atomic Safety and Licensing Poard Executive Chamber U.S. Nuclear Regulatory Commission State Capitol Washington, D.C.
20555 Albany, NY 12224 Oscar !!. Paris" 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, D.C.
20555 Albany, NY 12223 Frederick J. Shon**
W. Taylor Reveley III, Esq.***
Administrative Judge Donald P. Irwin, Esq.
Atomic Safety and Licensing Loard Ilunton a Williams U.S. Nuclear Regulatory Commission 707 East Main Street Washington, D.C.
20555 P.O. Box 1535 Richmond, VA 23212 Mr. Jay Dunkleberger Joel Blau, Esq.
New York State Energy Director, Utility Intervention Office NYS Consumer Protection Board Agency Building 2 Suite 1020 Empire State Plaza 99 Washington Avenue Albany, New York 12223 Albany, New York 12210
F~
Herbert H. Brown, Esq.**
Stephen B. Latham, Esq.***
Lawrence Coe Lanpher, Esq Twomey, Latham & Shea Karla J. Letsche, Esq.
Attorneys at Law Kirkpatrick & Lockhart 33 West Second Street 1900 M Street, N.W.
Riverhead, NY 11901 8th Floor Washington, D.C.
20036 Atoniic Safety and Licensing Dr. Monroe Schneider Board Panel
- North Shore Committee U.S. Nuclear Regulatory Comriission P.O. Box 231 Washington, D.C.
20555 Wading River, NY 11792 Atomic Safety and Licensing Appeal Board Panel
- Mr. Philip McIntire U.S. Nuclear Regulatory Commission Federal Emergency Management Washington, DC 20555 Agency 26 Federal Plaza,.* pom 1349 Spence W. Perry, Esq.
New York, NY 10L78 General Counsel Federal Emergency f4nagement Docketing and Service Section*
Agency Office of the Secretary 500 C Strect, SW, Room 840 U.S. Nuclear Regulatory Commission Weshington, DC 20472 Washington, D.C.
20555 Anthony F. Earley, Jr., Esq.
Robert Abrams, Esq.
General Counsel Attorney General of the State Long Island Lighting Company of New York 175 East Old Country Road Attn: Peter Dienstock, Esq.
Ilicksville, NY 11801 Department of Law State of New York
?!s. Nora Bredes Two World Trade Center Shoreham Opponents Coalition Room 46-14 195 East P. fain Street New York, NY 10047 Smithtown, NY 11787 William R. Cumming, Esq.
P.!artin Bradicy Ashare, Esq.
Office of General Counsel Suffolk County Attorney Federal Emergency PJanagement H. Lee Dennison Building Agency Veteran's Memorial Highway 500 C Street, SW Hauppauge, NY 11788 Washington, DC 20472 Dr. Robert Hoffman Long Island Coalition for Safe Living P.O. Box 1355 Massapequa, NY 11758 L
Bernard M. Bprdenick Oreste R. Pi' fro Counsel for JiRC Staff