ML20211L582
| ML20211L582 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 12/12/1986 |
| From: | Shoemaker C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| CON-#486-1875 ALAB-855, OL-3, NUDOCS 8612160095 | |
| Download: ML20211L582 (19) | |
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UNITED STATES OF AMERICA 00gt NUCLEAR REGULATORY COMMISSION
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ATOMIC SAFETY AND LICENSING APPEAL box 5h gEc 12 P4 :49 Administrative Judges:
Alan S. Rosenthal, Chairman (in December 12, 1986 Gary J. Edles (ALAB-855)
Howard A. Wilber
> SERVED DEC 151986.
In the Matter of ) '
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station, )
Unit 1) )
. )
James N. Christman, Richmond, Virginia, for the i applicant Long Island Lighting company.
Martin Bradley Ashare, Hauppauge, New York, Herbert H.
Brown, Lawrence Coe Lanpher, and Karla J. Letsche, Washington, D.C., Fabian G. Palomino, Albany, New York, and Stephen B. Latham, Riverhead, New York, for the intervenors State of New York, Suffolk County, New York, and the Town of Southampton, New York.
Bernard M. Bordenick for the Nuclear Regulatory Commission staff.
DECISION In ALAB-847, acting on the appeal of the applicant Long Island Lighting Company (LILCO) from portions of two partial initial decisions rendered by the Licensing Board in the emergency planning phase of this operating license proceeding involving the Shoreham nuclear facility, we remanded two issues to that Board for further consideration.
t' 24 NRC (September 19, 1986).
h0 D h2
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2 One of those issues concerned the portions of LILCO's emergency response plan pertaining to the monitoring, decontamination and sheltering of persons departing from the facility's plume exposure pathway emergency planning zone
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(EPZ) in the event of an accident at Shoreham necessitating such evacuation.
More specifically, in LBP-85-31 the Licensing Board had concluded that, in addition to planning for the number of evacuees likely to seek sheltering, LILCO was obliged to
- I estimate and to plan for the number of evacuees likely to
- come to the Nassau Veterans Memorial Coliseum (the then designated relocation center) for radiological monitoring and decontamination alone.2 In challenging this result, LILCO had asserted on its appeal both that the Board's determination went beyond the issues admitted for litigation and that the imposition of the additional obligation was not justified by any regulatory requirement.3 As explained in ALAB-847, we decided to return the matter to the Licensing Board to enable it to consider in the first instance whether the issue of LILCO's plan for evacuees not seeking sheltering (hereafter, the " evacuee 1
2 22 NRC 410, 417, 430-31 (1985).
See LILCO's Brief on the Relocation Center Issues (October 7, 1985) [hereafter "LILCO Brief").
3 issue") had been properly raised for litigation.4 In light of that step, we declined "at this juncture to rule on LILCO's alternative argument that the obligation imposed by the_[ Licensing} Board runs afoul of applicable regulatory requirements."5 In response to ALAB-847, the Licensing Board advised us that, in its judgment, the evacuee issue was properly raised for litigation.6 The Board further observed (as we had'in i
ALAB-847) that the Nassau Coliseum is no longer available as
]- a relocation center and called attention to the pendency of a recent LILCO motion to reopen the record for the purpose of substituting three other facilities for the Coliseum.
i The Board indicated, however, that it would not act on that motion prior to our ruling on whether the obligation imposed 1
upon LILCO in LBP-85-31 flowed from a properly raised issue i and an existing regulatory requirement.
1 In light of this response, we entered an unpublished order on November 4 in which, after reciting the foregoing i history, we stated:
l 4
See 24 NRC at (slip opinion at 8-9).
5 Id. at (slip opinion at 9).
6
- LBP-86-36, 24 NRC , (October 29, 1986) (slip
} opinion at 19).
! 7 Id. at (slip opinion at 21).
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4 In our view, substantial deference should be given to the belief of the trial tribunal that a particular issue was presented to it by one of the litigants before it. This is particularly so where, as here, the relevant procedural history is exceptionally complex. Thus, it should be enough that, as also appears to be the case in this instance, the Licensing Board has supplied a reasonable foundation for its determination.
We nevertheless will withhold final disposition of the matter to afford the parties an opportunity to comment on the Licensing Board's discussion in its October 29 issuance. In addition, the parties may address further the regulatory requirements question. We are particularly interested in obtaining an elaboration by the staff of its views on that question. Possibly because its principal claim was that the Board-imposed obligation was not rooted in a properly raised evacuee issue, the staff's treatment in its prior submission of the regulatory requirements question was quite indecisive. At this stage, however, we are entitled to an unequivocal response from the staff on the question whether the obligation imposed upon LILCO by the Licensing Board can be squared with the Commission's emergency planning dictates.
All of the parties accepted that invitation to comment.
LILCO maintains that the Licensing Board clearly erred in concluding that the evacuee issue had been properly raised for litigation and, additionally, adheres to its previously expressed view that, in any event, the issue was incorrectly decided by the Board.8 Ti.e intervenors suffolk County, O
See LILCO's Supplemental Memorandum of Law on the Number of People Who Might be Monitored in a Radiological Emergency (November 21, 1986) [hereafter "LILCO Supplemental Memorandum"].
5 et al., disagree with LILCO on both scores.9 Adopting the standard of review suggested in our November 4 order, the staff no longer questions the Licensing Board's determination that the evacuee issue had been put before the Board. Moreover, in the staff's opinion, the disposition of that issue below is consistent with the Commission's emergency planning regulations.
- 1. We have reexamined the Licensing Board's conclusion that the evacuee issue was properly raised by the intervenors and thus warranted disposition on the merits.
As a threshold matter, we remain persuaded that the determination of a trial tribunal that an issue has been squarely presented to it is entitled to substantial deference and should be overturned only when it lacks a rational foundation. Although certain of LILCO's arguments have merit, we cannot find that the Board's determination lacks such a foundation.
See Suffolk County, State of New York, and Town of Southampton Response to Appeal Board Memorandum and Order of
, November 4, 1986, Concerning Monitoring of Evacuees (November 21, 1986).
10 See NRC Staff Comments Pursuant to Memorandum and j Order Dated November 4, 1986 (November 21, 1986). As noted in our November 4 order quoted above, in its initial response to the applicant's appeal the staff had taken the position that the issue was not embraced by the intervenors' contentions. See NRC Staff's Brief in Support of "LILCO's Brief on the Relocation Center Issues" (November 21, 1985) at 4-11.
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6 In ALAB-847, we pointed out that the intervenors argued that there was general' language in their contentions that was intended to permit inclusion of the issue. Contention 24.0, for example, stated in pertinent part:
The Plan designates Suffolk County Community College as the relocation center to be used by evacuees from eight of the nineteen zones in the EPZ. LILCO estimates the population of these zones to be 18,599 (26,574 in the summer) . . .
LILCO has no agreement with Suffolk County to use
[the] . . . College as a relocation center . . .
Therefore, there is no relocation center designated anticipated evacuees.
for a significan}yportion of the
, This contention can be construed narrowly -- as LILCO asks us to do -- to attack simply the lack of a formal agreement 4
.for the use of the Community College. But, given that the contention ultimately had to serve as a basis for litigation in light of substantial changes made by LILCO in its emergency plan, it can also be construed to reflect a concern that any center selected must be adequate to
-l accommodate all anticipated evacuees. In an effort to determine the meaning accorded to the contention by the Licensing Board during the course of the proceedings below, l we asked the Board to indicate whether it was significant that the intervenors did not expressly challenge LILCO's
- alleged failure to estimate and to plan for the number of i
11 See LBP-85-12, 21 NRC 644, 979 (1985).
7 evacuees who might seek monitoring and possible decontamination alone. The Board answered our inquiry in the negative. It explained:
The contention specifically stated the total population of the zones to be served by the relocation center and, at the outset, the Board presumed from the wording of the contention that some subset of that population would be identified in testimony as the number that would require service in the event of an emergency. This expectation was later borne out when LILCO stated its plannigg basis for population in prefiled testimony.
The Board's construction of Contention 24.0 is not unreasonable. Indeed, its reading of Contention 24.0 is consistent with the language of, and purpose behind, other contentions as well. Contentions 74-77 dealt generally with the adequacy of the relocation centers. A preamble to those contentions read, in part:
[R]elocation centers are essential to provide food and shelter to those evacuees who have no alter-native places to stay and also to provide radio-logical monitoring and decontamination for evacuees and their vehicles. The relocation centers must have sufficient personnel and equip-ment to monitor evacuees within a 12-hour period.
NUREG-0654,Section II.J.12. . . . The intervenors contend that LILCO will be unable to provide adequate relocation centers and services for evacuees, and thus the Plan fails to comply with 10 C.F.R. SS50.47 (a) (1) , 50. 4 7 (b) (8) ,
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12 LBP-86-36, 24 NRC at __ (slip opinion at 8).
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- 50. 4 7 (b added].{fl0), and NUREG-0654 S II.J. [ emphasis The language of the preamble reveals the intervenors' basic position that all evacuees may seek monitoring but that food and shelter will need to be provided only to those evacuees who do not have an alternative place to stay.
It also appears that LILCO was aware of the import of the intervenors' contentions. LILCO's direct testimony specifically took the preamble to contentions 74-77 into I4 account and, on cross-examination, its witnesses seemed to acknowledge that more people may need to be monitored than need to be sheltered.1 As far as we can now tell, the intervenors' position at the hearing was that LILCO needed to provide facilities sufficient to monitor and, if necessary, to decontaminate, the entire population of the EPZ, i.e., all 160,000 persons.16 LILCO disagreed. But, as the Licensing Board 13 LBP-85-12, 21 NRC at 1020.
14 See Direct Testimony of Cordaro et al., fol. Tr.
14,707, at 7-8.
15 Tr. 14,825-30; 15,898.
16 The Board now explains that the intervenors' direct testimony did not address the issue because, at least as to Contention 24.0, they elected to pursue their case on the basis of cross-examination alone. LBP-86-36, 24 NRC at ~-
(slip opinion at 13). Such an approach is perfectly (Footnote Continued)
9 observes, it offered no estimate other than to project th;t 32,000 individuals would require sheltering.17 The 32,000 figure was premised on a study that showed that roughly 10-20 percent of any population requires sheltering in the event of a disaster. The Board explains, however, that the study was based on natural disasters,18 where individuals seeking emergency services ordinarily need only temporary sheltering and do not require radiation monitoring. Hence, LILCO's planning estimate simply failed to take into account that radiological accidents produce a category of individuals who require monitoring and decontamination, even if they do not require sheltering.
In sum, the Licensing Board determined:
We conclude that Contentions 24.0 and 75 taken together properly raised the issue of population planning basis for evacuees arriving at a reception center, that LILCO had a fair opportunity to litigate the matter and that when the smoke had cleared it had simply fail l
thatpoint.ygtocarryitsburdenofproofon
! (Footnote Continued) permissible. See Louisiana Power and Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC 1076, 1096 n.30 (1983).
LBP-86-36, 24 NRC at (slip opinion at 12). The 32,000 figure is 20 percent oT the 160,000 EPZ seasonal resident population. Ibid.
18 Ibid.
19 Id. at (slip opinion at 18-19).
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10 Because we believe that these conclusions are reasonable, we decline to overturn its action in reaching the merits of the evacuee. issue. We therefore must now turn to whether that issue was correctly resolved.20
- 2. As recognized explicitly or implicitly by each of the parties, the Commission's regulations do not address in so many words the question whether emergency response planning must encompass suitable provision for-the monitoring and decontamination of EPZ evacuees not in need of sheltering. Although requiring that offsite emergency response plans reflect the development of a " range of protective actions . . .for the plume exposure pathway EPZ for emergency workers and the public," 10 CFR 50.47 (b) (10) neither specifies what that range must include nor makes mention of monitoring of evacuees from the EPZ. Similarly, 20 We disagree with LILCO that according deference to the Licensing Board's determination that the evacuee issue was presented to it for litigation runs afoul of the approach we employed in our Limerick decisions, Philadelphia Electric Co. (Limerick Electric Generating Station, Units 1 and 2), ALAB-836, 23 NRC 479, 504-05 (1986), and ALAB-819, 22 NRC 681, 707-09 (1985). Here, as in Limerick, we endorse the construction of the contentions placed upon them by the trial tribunal. To be sure, we took a somewhat closer look at the Licensing Board's determinations in Limerick. In those situations, however, we were called upon to decide whether an intervenor's contentions had been construed too narrowly -- a matter that gets our closest review in order to ensure that an intervenor is not deprived of its statutory hearing rights. Cf. ALAB-743, 18 NRC 387, 404 n.1 (1983) (.Mr. Edles, dissenting).
11 section'IV of Appendix E to 10 CFR Part 50, also concerned with the content of emergency response plans, is devoid of any direct reference to offsite radiological personnel monitoring.
The parties (particularly LILCO) have therefore looked to a different source in fashioning their positions on whether the Licensing Board went beyond the regulations.
That source is Revision 1 of NUREG-0654 (FEMA-REP-1), a November 1980 joint issuance of this Commission and the Federal Emergency Management Agency entitled " Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants." NUREG-0654 is a generally accepted guidance document used to evaluate the adequacy of emergency preparedness at nuclear power plant sites.22 21 All subsequent references to NUREG-0654 are to Revision 1.
At one time, 10 CPR 50.47(b) contained a footnote to the effect that the standards set forth in that section for emergency response plans "are addressed by specific criteria in NUREG-0654." While the footnote was removed in 1984, the Commission was careful to explain that its deletion would not affect the use of NUREG-0654 "as a guidance document for emergency planning," adding that that document "is endorsed by Regulatory Guide 1.101, and will continue to be used by reviewers in evaluating the adequacy of emergency preparedness at nuclear power reactor sites." 49 Fed. Reg.
27,733, 27,734 (1984).
Regulatory Guido 1.101, Revision 2 (October 1981),
(Footnote Continued)
12 The relevant broadly-stated planning standard of 10 CFR
- 50. 4 7 (b) (10) -- i.e., the development of a " range of protective actions" for (inter alia) the members of the public within the EPZ -- is covered in Section II.J of NUREG-0654, which also sets forth a number of more particularized planning standards (or " evaluation criteria"). In support of its acsertion that it is not obliged to concern itself with the monitoring of evacuees who do not seek sheltering, LILCO points to Planning Standards J.10.g, J.10.h, and J.12. The first two are to the effect that the " organization's plans to implement protective measures for the plume exposure pathway shall include . . .
(m]eans of relocation (and] [r]elocation centers in host areas which are at least 5 miles, and (Footnote Continued) entitled " Emergency Planning and Preparedness for Nuclear Power Reactors," states that:
The criteria and recommendations contained in Revision 1 of [NUREG-0654] are considered by the NRC staff to be generally acceptable methods for complying with the standards in 5 50.47 of 10 CFR Part 50 that must be met in onsite and offolte emergency response plans. Furthermore, FEMA, NRC, and other involved Federal agencies intend to use the guidance contained in Revision 1 of (NUREG-0654) in their individual and joint reviews of the radiological emergency response plans and preparedness of State and local governments and the plans and preparedness of applicants for and holders of a license to operate a nuclear power reactor.
13 preferably 10 miles, beyond the boundaries of the plume exposure emergency planning zone." Planning Standard J.12 states:
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 arriving at relocation centers.
As LILCO sees it, "when read together and in context" these provisions suggest that emergency planners are to provide a
" relocation" center -- i.e., "a place for ' relocating' people who have had to leave their homes without another sufficient predetermined destination" -- and not a 3
monitoring center. On this premise, LILCO moves forward to the conclusion that all that it need do is to " provide for housing temporarily homeless people and then also for registering and monitoring these people."24, The Commission does not appear to view Planning Standard J.12 in that light. For, in a decision involving the San Onofre facility, it specifically referred to that standard in observing that NUREG-0654 " requires relocation centers capable of registering and monitoring all residents 23 LILCO Brief at 24.
24 Ibid.
4 14 and transients in the plume exposure EPZ." LILCO asks us,
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however, to disregard that statement. According to LILCO, apart from being dictum, the statement (1) erroneously attributes " requirements" to NUREG-0654 and (2) inaccurately s
restates Planning Standard J.12.26 There is no occasion to explore here the bounds of our obligation to give effect to a Commission pronouncement that, albeit clear-cut, might not have been essential to the
, decision where it is found. Nor is it of present moment that NUREG-0654 is not a Commission regulation but, as its foreword points out, contains " guidance and upgraded acceptance criteria," said to be " consistent with NRC and FEMA regulations," for the purpose of providing "a basis for NRC licensees, State and local governments to develop radiological emergency plans and improve emergency preparedness."27 LILCO itself stresses that, even though not enjoying the status and effect of a regulation, 25 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 Com'n, 753 F.2d 1144 (D.C. Cir.
1985) (emphasis supplied).
26 See LILCO Supplemental Memorandum at 10 n.8.
27 NUREG-0654 at i. See also Philadelphia Electric Co.
(Limerick Generating Station, Units 1 and 2), ALAB-819, 22 NRC 681, 709-10 (1985), review declined, CLI-86-5, 23 NRC 125 (1986).
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(
15 NUREG-0654 is nonetheless instructive on the question whether, in LILCO's words, "there is a requirement for
' relocation' centers for the homeless (with an attendant requirement to be able to monitor those people) or a requirement for ' monitoring and decontamination centers' for the public."28 And there seemingly is no disagreement among the parties respecting the probative value of NUREG-0654.
Rather, the controversy focuses upon whether it supports LILCO's assertion that there is no obligation to plan for L
those evacuees not asking to be sheltered.
We think such support to be wholly lacking. To begin with, LILCO offers no basis in the terms of NUREG-0654 or its history for the premise that a " relocation" center is designed to serve only those individuals "who have had to leave their homes without another sufficient predetermined destination."29 In our view, the term " relocation" can justifiably be given a much broader scope than LILCO accords to it. In a real sense, any person who voluntarily or involuntarily leaves the EPZ as a direct consequence of a radiological accident at the nuclear power facility is undertaking a " relocation." This is so irrespective of whether that person requires only monitoring and possible O
LILCO Supplemental Memorandum at 10.
' See supra p. 13.
r 16 decontamination (i.e., is prepared to make his or her own sheltering arrangements) or, instead, expects sheltering to be provided as well. In this regard, it is worthy of note that a report prepared for the NRC by the Sandia Laboratories (which was specifically referred to in Section II.J of NUREG-0654) defines " relocation" as " essentially a post-accident evacuation of persons in affected areas."30 We know of no good reason (and LILCO assigns none) for inferring that the authors of Planning Standard J.12 intended " relocation" to have a more limited ambit. To the contrary,-had it been their purpose to confine the reach of the term " evacuees" as used in that planning standard to persons.in search of sheltering in addition to monitoring, the authors of NUREG-0654 presumably would have said so explicitly.
But the flaws in LILCO's position go beyond the unduly restrictive interpretation it gives the term " relocation."
LILCO does not explain why it should make a difference
.whether the person seeking m'onitoring 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 30 Examination of Offsite Radiological Emergency Measures for Nuclear Reactor Accidents Involving Core Melt, SAND 78-0454 (June 1978) , at 52.
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17 make their own sheltering arrangements.31 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 CFR 50.47 (b) (10) requires be developed for all members of the public within the EPZ.
To be sure, in the case of persons not seeking sheltering, LILCO might choose to arrange for the availability of such services at a facility other than a designated " relocation" center. (As noted above, NUREG-0654 leaves room for satisfying regulatory requirements in ways other than those specifically set forth in that document as
" guidance".) There is nothing in the record, however, to indicate that LILCO has that intent; to the contrary, insofar as we can tell, the LILCO emergency response plan contemplates that all monitoring and decontamination activities take place at the " relocation" center (s). In any event, to ensure the fulfillment of the section
- 50. 4 7 (b) (10) mandate, the Licensing Board justifiably imposed upon LILCO the added duty of estimating and planning 31 It seems highly probable that many individuals who manifestly should be monitored as a matter of caution will both wish and be able to obtain sheltering at other than a facility supplied by LILCO or another participant in the emergency response plan.
See Tr. 14,825-26.
r 18 for the number of evacuees desiring monitoring but not sheltering -- whether the monitoring would be made available at the " relocation" center (s) or elsewhere.
That portion of LBP-85-31 considered in this opinion is affirmed. With the foregoing determinations as guideposts, the Licensing Board should now proceed to consider the pending LILCO motion to reopen the record for the purpose of substituting other facilities for the Nassau Coliseum.
Should that motion be granted, the Board may be called upon to examine an additional assertion LILCO put before us.
Ir LILCO's judgment, its planning basis of 32,000 persons is
" conservative" and therefore "can be expected to cover, in most cases, both evacuees who need housing and others who want monitoring or are advised to be monitored."34 This factual claim is not pertinent to the narrow legal issue presented by the LILCO appeal and, moreover, appears to us to be of dubious validity. If it so desires, however, LILCO may reassert the claim before the Licensing Board.
Alternatively, it may proffer a new estimate.
33 See supra p. 3.
LILCO Brief at 28.
35 See supra p. 9.
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19 It is so ORDERED.
FOR THE APPEAL BOARD O. bh C. Qean" Shoemaker Secretary to the Appeal Board i
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