ML20214P412

Response to Util Submission of Revised Std Version of Intervenor 860801 Exercise Contentions.Lilco Submission Should Be Modified to Conform to ASLB 861003 Prehearing Conference Order.Certificate of Svc Encl

ML20214P412
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	11/24/1986
From:	Bordenick B NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#486-1714 OL-5, NUDOCS 8612040188
Download: ML20214P412 (10)

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4 November 24, IRSA.KETEP

. USt1RC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION .

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD00CKEin GFricE'. cc _ .'-- '

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In the Matter of )

)

LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5

) (EP Exercise)

(Shoreham Nuclear Power Station )

Units 1) )

NRC STAFF RESPONSE TO LILCO'S SUBMISSION OF THE " REVISED STANDARD VERSION" OF THE INTERVENORS' EXERCISE CONTENTIONS I. INTRODUCTION Pursuant to the Licensing Board's November 13, 1986 " Memorandum and Order", LILCO on November 17, 1986 submitted its proposed " Revised i Standard Version" of the Intervenors' August 1, 1986 exercise conten-tions. The NRC Staff (Staff), pursuant to the Board's November 13, 1986, Order responds to LILCO's submission.

1 II. DISCUSSION LILCO states, at page 1 of its submission, that its proposed

" Revised Standard Version" includes only those contentions that were expressly admitted by the Board for litigation. In addition, the Staff believes any clarification of the contentions should also deal with instances where the Board ruled that a contention or some part of the basis of a contention was " subsumed within" or might be considered as evidence supporting another contention. The Staff belives that in instances where the Board stated that a contention or a part thereof was 2

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s subsumed within another contention, it was the intent of the Board to deny the independent admission of that contention but to allow such a contention (or a part thereof) to be considered as a basis for the referenced contention whose admission was allowed. Similarly, the Staff l l

believes that the matters which the Board stated could be considered in  !

connection with another contention whose admission was allowed might be .

offered as proof of the referenced contention.

Set out below is the Staff's analysis of those contentions and subcontentions which were denied independent admission by the Board, but which the Board stated to be " subsumed" within other admitted contentions or which the Board stated might be examined in connection with admitted contentions. This analysis does not include contentions where in the Staff's view LILCO adequately incorporated the Board's actions in its " Revised Standard Version" of the contentions. II -

Ex. ISL,16 and 18 - Subcontention 15L was stated to be subsumed under Ex. 21 (along with Ex. 32) as a basis for Contention 21.

Prehearing Conference Order, October 3, 1985 (PHCO) at 11.

Accordingly, tht: language of Ex. 15L , which alleges that the two congregate care facilities which were tested at the exercise were not i 1/ As a convenience to the Board, the Staff has prepared the Attached Appendix which sets forth a listing of admitted contentions, and those contentions which have been subsumed as additional bases for j admitted contentions. With regard to the Board's Order of November 18, 1986, inviting parties to set out the full text of the contentions, the Staff has not been able to do so because of the constraints of time and the fact that the Staff cannot incorporate a consideration of Intervenors' response to LILCO's submission which is due at the same time as the Staff's filing. However, if the Board wishes the contentions and all bases set forth in textual form, the Staff will undertake to do so.

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among those identified in LILCO's plan, should be listed as a " bases" for Contention Ex. 21.

The matters set out in Contention 16A-D, F-J, and N (listing specific organizations or entities whose failure to participate in the exercise led to an alleged failure to exercise a feature of the plan) were

" subsumed within" the bases for admitted Contention Ex.15 which deals with the purported limited scope of the exercise. PHCO at 12.

The Board admitted Basis C of Contention Ex.18 which also lists organizations that did not fully participate in the exercise as a basis for Contention 15 or 16. PHCO at 12. -

As the Board pointed out Contentions 16 and 18 name individuals or entities whose failure to participate led to a failure to exercise a feature of the Plan named in Contention 15. Id. Consequently, Contentions 16 and 18 are, in large part, redundant in that matters alleged in Contention 15 involve most of the entities specifically named in Contentions 16 an 18. Nevertheless, the Staff has set out below an itemized list of those portions of Contentions 16 and 18 which identify entities related to specific features of the plan which Intervenors allege were excluded from the exercise in admitted Contention 15. /

Admitted Contention Additional Bases "

15 A -

16 C, D 15 B - 16 B,18 C(vi) 15 D -

16 H, I -

15 E, F, G -

16 F,18 C(v) 15 G -

10 G,18 C(1,11) 15 I - 16 A, J,18 C(vi)

-2/ Subcontention ISC is not included in LILCO's " Revised Standard '

Version" . ,

s. V

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5 15 K -

16 N,18 C(iii, vi)

These three contentions (15, 16 and 18) as admitted should be jointly considered at the hearing.

Ex. 22 - This contention was admitted in part. PHCO at 14.

LILCO's November 17th submission only deals with Contention 22A and does not indicate the disposition of Bases F, I and K.,

The Board stated that "[T]he substance of basis F (of Contention Ex. 22) will be dealt with under Contentions Ex. 38 or 39". This action, however, did not reopen for rehearing questions involving the " shadow evacuation" phenomenon which had been decided by the Board in LB P-85-12, 21 NRC 644, 655-671. The only aspects of Basis F of Contention Ex. 22 which might be dealt with under Contention Ex. 38 or 39 are those that deal with subject matter of those contentions, to wit:

the providing of information to news media and responding to public inquiries. The Board in rejecting the body of Contention Ex. 44 (PHCO at 25-26) which also dealt with public information plainly indicated it was not reopening the proceeding to again try " shadow evacuation" issues.

The Board also stated, id., that Basis I, which alleges the number of roadway impediments tested was too small a sample, would be dealt with under Contention Ex. 41, involving LILCO's inability to deal with roadway impediments. Accordingly, Basis I of Contention Ex. 22 might be offered as evidence of Contention Ex. 41.

Basis K of Contention Ex. 22 was generally rejected. The Board indicated that only that part of the basis which averred that actions at only two congregate care centers was too small a sample to make a judgment on the adequacy of the LILCO plan might be considered under

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Contention Ex. 21. Therefore only the first sentence of Basis K of Contention Ex. 22, might be considered as a basis for Contention Ex. 21.

i As the Board pointed out (PHCO at 15), the rest of the matters in the basis had been dealt with in an earlier decision. See LBP-85-31, 22 NRC 410, 422-23 (1985). 3,/

Ex. 23 - This contention, alleging that an error in dose data was made and went uncorrected for 21 hours2.430556e-4 days <br />0.00583 hours <br />3.472222e-5 weeks <br />7.9905e-6 months <br />, was denied separate admission by the Board. PHCO at 15. However, the Board stated that the contention in question could be addressed in conjunction with admitted Contention 50, Basis C regarding the training of LERO workers.

, Accordingly, evidence r,egarding matters alleged in Contention Ex. 23 might be offered in connection with Contention Ex. 500.

"Ex. 27 and 28 - These two contentions (dealing with bus drivers and ambulance drivers , respectively) were not admitted. d., at 16.

- However, the Board stated that to the extent the allegations of these contentions demonstrate a. serious lack of training, they could be offered as evidence to prove the allegations of admitted Contention 50 (training deficiencies ), Basis H (regarding health physics training for bus and ambulance drivers).

Er. 30 - The Board also rejected this contention which involved a delay in dispatching bus drivers. Id. at 17. However, as stated by the

-3/ Subsequent to issuance of the October 3 Prehearing Conference Order, the County filed a motion to reopen the record on congregate centers which motion is presently pending before the Commission.

Thus, the admission of Basis K is limited to proposed evidence, otherwise admissible, gcing to the size of the sample at the exercise as opposed to the availability of congregate care centers.

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Board, Id., the extent to which the allegations in this Contention, taken with other matters, may demonstrate a fundamental flaw in LILCO's plan, it could be examined under Contention 15, Basis G (involving evacuation of schools). Accordingly, evidence of the matters set out in Contention Ex. 30 might be offered in connection with Contention 15, Basis G.

Ex. 32 - Proposed Contention Ex. 32 was rejected by the Board.

Id. at 17. However, the Board specifically stated that this contention, to the extent it involves the failure to exercise a sufficient number of congregate care centers, would be deemed an additional basis for Contention 21. These matters also seem to be the same as the matters in Contention Ex. 22K which was also added to Contention Ex. 21 to deal with the size of the congregate care center samples.

Ex. 37 -

This proposed contention , which generally dealt with

protective action recommendations for the 50 mile ingestion pathway, was not separately admitted because the Board ruled it was redundant to other Contentions. Id_. at 20. Instead, the Board incorporated rejected Contention 37 into admitted Contention Ex.15. Id. The Board stated that Intervenors may present evidence concerning the ingestion pathway in connection with Contention Ex 15I. N Ex. 41 - LILCO's November 17th submission lists Contention Ex. 41 together with bases 41A, F and E. The Board also stated the matters alleged in Contention 1

x. 22I and 29 might be offered in support of Contention Ex. 41. See PHCO at 14,17.

-4/ If FEMA's motion for reconsideration as to the Board's admission of Contention 15 is granted, then, of course, the Board's action discussed above will be moot.

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Ex. 44 - See Staff's discussion of Contention Ex. 22F. Question involving the " evacuation shadow" phenomenon may not be relitigated.

Ex. 45 - The Board rejected proposed Contention Ex. 45 because it was redundant to admitted Contention 500, it lacked basis, it lacked specificity, and it did not show a fundamental flaw in the exercise. Id.

at 27. However, the Board specifically consolidated the bases cited in rejected Contention Ex. 45 with admitted Contention Ex. 50.

CONCLUSION Based on the foregoing, the Staff believes that the LILCO submission should be modified to conform to the Board's October 3,1986 Prehearing Conference Order in accordance with the above analysis. 5/

Respectfully submitted, b,  %=^

Dernard M. Bordenick Counsel for NBC Staff Dated at Bethesda, Maryland this 24th day of November,1986 5/ Staff agrees with LILCO's suggestion, at page 2 of its November 17, 1986, submission, that, in any event, the Board should retain the original Contention numbers in its designation of the final version of the contentions to' avoid confusion in light of the extensive discovery already proceeding under the original numbers.

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APPENDIX Shoreham Exercise Contentions Admitted, Subsumed or Incorporated by Yoard Order of October 3,1986 This Appendix sets forth a listing of the contentions admitted by the Board in its PHCO of October 3,1986 and the contentions or subconten-tions which the Board subsumed or incorporated as additional bases for admitted contentions, as well as matters which the Board stated may not be separate contentions, but might be considered as evidence of admitted contentions. The following list is broken down as follows: the 1st column lists the contentions specifically admitted by the PHCO. The 2nd column lists additional contentions or subcontentions which the Board directed to be " subsumed" as additional bases for the admitted contentions.

The third column sets forth those contentions or subcontentions which were denied separate admission by the Board, but which could be offered as evidence in connection with the named admitted contentions.

Duplication occurs where the Board specifically admitted a subcontention, but subsumed or incorporated it as part of another contention. For example , Contention EX 15.r, was admitted by the Board, but is to be considered as a basis for Contention 21. Thus, the attached list notices

in the right column the admission of the contention, and the left column places the various contentions in correct relationship with the admitted 1

contention as specified in the Board Order.

Matters which 4

may be offered as evidence of Additional " subsumed" the admitted Admitted Contentions Bases for Admitted Contention: Contention i 15 A-I , K , L , M 16 A-D , F-J, N , 18 C (1-v) 24, 26, 30, 37 16 E L, K 19 i

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21 A-F 22 K,15 L, 32 (bases for 21) 22 A 36 38 (except K) a 39 22 F, 44 (1st sentence) 40 A-C, E 41 A, B, E 22 I 25 47 A-C E 49 A-C 31 50 23, 27, 28 45 A-H

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00L t'.E T E:

u9iPC UNITED STATES OF AMERICA 86 DEC -1 Al0:42 NUCLEAR REGULATORY COMMISSION ,

P BEFORE THE ATOlt!IC SAFETY AND LICENSING BOARD OFFK. 00Chligt " g' ~"*WCL i

In the Matter of )

)

LONG ISLAND LIGIITING COMPANY ) Docket No. 50-322-OL-5

) (Emergency Planning)

(Shoreham Nuclear Power Station. )

. Unit 1) )

I hereby certi'ly that copies of "NRC STAFF RESPONSE TO LILCO'S SUBMISSION OF THE ' REVISED STANDARD VERSION' OF THE INTERVENORS' ' EXERCISE CONTENTIONS" 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 or, as indicated by a double asterisks , hand delivery or by telecopy, this 24th day of November,1986.

John H. Frye III, Chairman

• Fabian G. Palomino, Esq.**

Administrative Judge Special Counsel to the Governor Atomic Safety and Licensing Board Executive Chamber U.S. Nuclear Regulatory Commission State Capitol Washington, DC 20555 Albany, NY 12224 Oscar H. Paris

• Johnathan 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 Plara Washington, DC 20555 Albany, NY 12223 1

Frederick J. Shon* W. Taylor Reveley III, Esq.**

Administrative Judge Donald P. Irwin, Esq.

Atomic Safety and Licensing Board Hunton & Williams U.S. Nuclear Regulatory Commission 707 East Main Street ,

Washington, DC 20555 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, NY 12223 Albany, NY 12210

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4 Stephen B. Latham, Esq. Herbert H. Brown, Esq.**

Twomey, Lathrm & Shea Lawrence Coe Lanpher, Esq.

Attorneys at Law Karin J. Letsche, Esq.

33 V'est Second Street Kirkpatrick & Lockhart Riverhead, NY 11901 1900 M Street, NW, 8th Floor Washington, DC 20036 Anthony F. Earley Jr. , Esq.

General Counsel Dr. Monroe Schneider Long Island Lighting Company North Shore Committee 175 East Old Country Road P.O. Box 231 Hicksville, NY 11801 Wading River, NY 11792 Atomic Safety and Licensing Atomic Safety and Licensing Board Panel

• Appeal Board Panel

• U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Spence F. Perry, Esq. William R. Cumming, Esq.

General Counsel, Esq. Office of General Counsel Federal Emergency Management Federal Emergency Management Agency Agency 500 C Street, SW, Room 840 500 C Street, SW Washington, DC 20472 Washington, DC 20472 Ms. Nora Bredes Docketing and Service Section*

Shoreham Opponents Coalition Office of the Secretary 195 East Main Street U.S. Nuclear Regulatory Commission Smithtown, NY 11787 Washington, DC 20555 Martin Bradley Ashare, Esq. Dr. Robert Hoffman Suffolk County Attorney Long Island Coalition for Safe H. Lee Dennison Building Living Veteran's Memorial Highway P.O. Box 1355 Hauppauge, NY 11788 Massapequa, NY 11758 Robert Abrams, Esq. Mary M. Gundrum Attorney General of the State Department of Law State of New York of New York Attn: Peter Bienstock, Esq. 120 Broadway Department of Law 3rd Floor State of New York Room 3-116 Two World Trade Center New York, NY 10271 Room 46-14 New York, NY 10047

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< Edwin J. eis Deputy ssistant General Co nel

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