ML20214Q467
| ML20214Q467 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 12/01/1986 |
| From: | Christman J HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#486-1733 ALAB-832, OL-3, NUDOCS 8612050167 | |
| Download: ML20214Q467 (11) | |
Text
Q1733 LILCO, December 1,1986 i
UNITED STATES OF AMERICA 00CMETED NUCLEAR REGULATORY COMMISSION USNHC
'86 DEC -4 All :42 Before~the Atomic' Safety and Licensing Board GFr= r 000h.
m 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)
)
LILCO'S BRIEF ON REOPENING THE RECEPTION CENTER ISSUE This is LILCO's brief in response to the Licensing Board's Memorandum and Order of November 13, 198'6. There the Board requested further briefing in connection with LILCO's motion of September 30,1986, to reopen the record on the reception cen-ter issue. LILCO's September 30 motion asked to r'eopen the evidentiary record on Con-tention 24.0 for the purpose of reflecting the replacement of the Nassau Veterans Me-morial Coliseum as a reception center with three LILCO facilities, namely the Hicksville, Bellmore, and Roslyn Operations Centers.
The Board's November 13 Memorandum and Order requested that the parties brief two issues:
i 1.
Does the Licensing Board have jurisdiction to reopen the evidentiary pro-ceeding on Contention 24.O?
2.
How does each additional element that the Intervenors wish included in the reopened proceeding specifically relate to the reopening issue, and how is each such element material to the disposition of the reopening issue?
LILCO addresses these two issues in Parts I and II below respectively.
8612050167 861201 ~
DR ADOCK 0500 2
. 3 I.
The Board's Jurisdiction to Reopen the Record As the Board points out, it recently ruled that it did n_ot have jurisdiction to en-tertain a motion to reopen the record submitted by the Intervenors. As a result, the In-tervenors refiled their motion with the Commission, and the Commission has it under consideration.
LILCO believes that its own motion to reopen on the reception center issue is different, because the Licensing Board has jurisdiction over that issue pursuant to the remand in ALAB-832. By contrast, none of the issues addressed by the Intervenors' motion - WALK radio, congregate care centers, and the role of the Red Cross - was remanded to the Board.
What is before the Board. and all that it may consider, is v' hat was remanded to it. Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Units 1-4),
ALAB-526,9 NRC 122,124 n. 3 (1979). The scope of the remand from the Appeal Board was defined in the following terms:
In short, especially given the concerns expressed by the intervenors from the very outset, the Board should have taken the issue before it to be whether there were any f actors -including the location of the Coliseum relative to the various portions of the EPZ - that might make that f acil-ity unsuitable to serve as the sole reception center for EPZ evacuees. On remand, the Board is to revisit the Coliseem issue in the context of that broader scope. And, in doing so, it is to admit the previously rejected testimony of all of the witnesses for the intervenors other than that of Mr. Campo (whose testimony, once again, did not deal witn the Coliseum but, rather, with already fully litigated issues concerned with designated shelters). Moreover, the Beard is to provide the intervenors with the opportunity for discovery that was im-properly denied to them and is to allow the introduction by any party of such additional evidence as may be germane to -
the Coliseum issue as delineated above.
ALAB-832,23 NRC 135,162 (1986)(footnotes omitted). Thus the issue before the Board is "whether there were any factors... that might make that facility unsuitable to serve as the sole reception center for EPZ evacuees."
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. s The jurisdictional question is whether "that facility" in the directions for re-mand, which at the time referred to the Coliseum, also covers the present three f acill-ties that have replaced the Coliseum. LILCO believea that it does. As distinguished from the congregate care center issue, which was expressly excluded from the remand, it seems evident that, if the Board has jurisdiction to consider the adequacy of the Nassau Coliseum,it has jurisdiction to consider the adequacy of the facilities that have replaced the Coliseum. Accordingly,in LILCO's view this Board has jurisdiction to re-open the record on the issue of the suitability of the three new reception centers.
4 The Scope of the Reopened Proceeding Also in its Memorandum and Order of November 13,1986, the Licensing Board asked the parties to address how each additional element that the Intervenors wish in-cluded in the reopened proceeding "specifically relates to the reopening issue and is material to its disposition." As near as LILCO can tell, the issues the Intervenors now wish to raise are the fo: lowing:
A.
The issues remanded in ALAB-832,23 NRC at 161-62:
1.
Shadow phenomenon. The Intervenors claim that the proposal to use the Nassau Coliseum would increase the size and extent of the
" shadow phenomenon." They claim that a f acility 43 miles from Shoreham would cause the perception that the area between the plant and the relocation center was unsafe, and that this would in-crease traffic congestion and evacuation times.
2.
Exposure to radiation. The Intervenors claim that the distance to the Coliseum from the Shoreham plant, plus traffic congestion, will increase exposure times for contaminated people.
3.
Transportation and traffic problems. The Intervenors claim that traffic congestion would cause delays in reaching the Coliseum.
4.
Environmental impact statement. The Intervenors claim that state law requires that an environmental impact statement be prepared.
5.
SPDES permit. The Intervenors claim that state 11w requires a per-mit to discharge contaminated washwater.
6.
Contaminated groundwater. The Intervenors claim that washwater from decontamination showers might contaminate the groundwater.
They add that contaminated urine and feces might interfere with sewage disposal systems.
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l B.
LILCO's new monitoring procedures: The Intervenors claim that LILCO's plan to register and monitor evacuees in parking lots and decontaminate them in 60-by-12-foot trailers will not work. The Intervenors argue that i
the f acilities are inadequate for the numbers of people who might need monitoring and decontamination and that people might be exposed to the
. weather in the process. They claim that there are inadequate toilets, l
water fountains, food facilities, and waiting space. Also, the Intervenors complain that the monitoring method requires "only drivers, hands and feet, and portions of their vehicles" to be monitored, thus allegedly ignoring the possibility that occupants of one vehicle might come from dif-ferent places and the " human reality" that drivers "will not likely tolerate the refusal by LILCO workers to monitor.other family members who are passengers."
C.
Other issues listed on pages 21-22 of the Intervenors' October 14,1986,
" Opposition to LILCO's Motion to Reopen Record":
1.
the adequacy of evacuation routes to the three LILCO facilities pro-posed as reception centers, including the effects of traffic conges-tion on the way to ar.d in Me vicinity of the facilities, and LILCO's Revision 8 proposal to employ traffic guides on Nassau County road-ways; 2.
the impact of the new relocation scheme upon evacuation time esti-mates, and evacuation vehicle requirements; 3.
staffing requirements given the new scheme; i
4.
LILCO's proposal to transport all evacuees travelling on buses to the parking lot next to its Hicksville facility, when that facility itself is
- l also proposed by LILCO to be the LERO worker relocation center; i
5.
whether the public would ever comply with LILCO's suggested relo-
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cation proposal and registration, monitoring, and decontamination procedures; 1
i 6.
the adequacy of LILCO's public information and education materials and EBS messages regarding the locations for monitoring and l
decontamination and services to be provided evacuees; 7.
whether the propos'al to send evacuees to LILCO parking lots could or would ever be implemented in a way to protect the public health i
and safety The Board asks the parties to comment on how each of these " elements"(except the "A" issues) specifically relates to the reopening issue and is material to. Its disposi-tion. LILCO takes "the reopening issue" to mean the_ questions of whether the record should be reopened and what should be the scope of the reopening.
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1 -
V A.
Whether the record should be reopened at all As to the first of these questions (whether the record should be reopened at all),
l-LILCO submits that the " additional elements" and other issues raised by' the Intervenors have no bearing on whether the record should be reopened. The'Intervenors' claims about the inadequacy of the new reception centers go to the merits and are issues to be i
decided on the evidence, not issues to be addressed in deciding whether evidence will be 5
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^ heard at all.
j The Intervenors disagree. They have attempted to use their own claims that the facilities are inadequate as a reason why LILCO has not met the second criterion for opening f.he record, namely that the motion " demonstrate that a materially different result would be or would have been likely had the newly proffered evidence been con-i sidered initially." Intervenors' Opposition at 10, 14-18. This argument - that because Intervenors claim the new relocation centers are inadequate, LILCO has not shown that j
a materially different result would occur - is patently incorrect. In effect it seeks a i
judgment on the merits, something in the nature of summary disposition, without meet-ing either the procedural or the substantive requirements for summary disposition. The
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Intervenors' argument is that simply because they claim that LILCO's plan is inade-quate, the Board will find it inadequate, and therefore there is no point in reopening f
the record. Accepting this argument would be not only erroneous, but a denial of due i.
process'as well.
In short, LILCO submits that it is clearly correct to reopen the record for evi-l dence on the new reception centers. Indeed, it would be a violation of due process to refuse to allow an applicant to show that it can meet the regulations in these circum-stances, especially when the Intervenors that are opposing the reopening are largely re-sponsible for the need to reopen it in the first place. The various issues that the Inter-venors raise about the adequacy of the new f acilities go to the merits of the case and are irrelevant to whether the record should be reopened to hear the merits.
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B.
What the scope of the reopened proceeding should be The second of the " reopening issues" is the question of the scope of the reopen-ing. LILCO submits that in light of the Appeal Board's remand in ALAB-832, the Board is required to hear such issues about the adequacy of the reception centers as Interve-nors are able to articulate with the requisite basis, specificity, and plausible nexus to a
the new reception centers. In ALAB-832 the Appeal Board said that Contentions 24.0 and 75 manifested an " essential concern" whether the reception centers were adequate to fulfill their purpose if actually called upon to do so. ALAB-832,23 NRC 135,162 n.
104 (1986). The Appeal Board therefore concluded, as noted above, that the Licensing Board should have taken the issue before it to be "whether there were any factors -including the location of the Coliseum relative to the various portions of the EPZ - that might make that facility unsuitable to serve as the sole reception center for EPZ evacuees." ALAB-832,23 NRC at 162. Accordingly, LILCO believes that on remand the issue before the Board is whether there are any f actors -- including the 10-cation of the new reception centers relative to the various portions of the EPZ -- that might make these f acilities unsuitable to ' serve as reception centers for EPZ evacuees.
It does not follow, however, that all of the issues raised by the Intervenors, set -
out above, must be heard.M For example, of' the six issues remanded in ALAB-832 (the -
"A" issues above), at least one has been mooted by the repla' cement of the Coliseum V
Although ALAB-832 may have weakened the requirement that late-filed conten-tions must be justified by the five factors of 10 C.F.R. 5 2.714(a)(1), LILCO submits that.
the five factors are still relevant. In this case the fitth factor (whether the new issue would broaden the issues and delay the proceeding) clearly works against the Interve-nors. The first factor (good cause for lateness) works in their favor if they can show that the new issues are raised by the designation of new facilities, and the other three-
-f actors, given NRC precedent, would probably also be held to favor the Intervenors.
LILCO concludes, then, that the claims of the Intervenors that the reception centers are inadequate should be admitted for litigation (that is, for summary disposition or -
hearing) if the Intervenors articulate them;with basis and specificity and show an ade-quate nexus to the location or nature of the new facilities. If certain issues turn out
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not to meet this standard, LILCO expects either to move to strike testimony r' ising the a
issues or to. object to cross-examination questions attempting to raise them.
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with other f acilities. This is the issue of whether an environment impact statement
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. (Issue "A.4" above). Environmental impact statements under New York State law are required only for actions by government agencies.- ECL S S 8-0109:2,8-0105:1,2, and 3 i
(McKinney 1984). Since the new reception centers are owned by LILCO and not a gov-ernment, the issue raised in the Intervenors' testimony is no longer live. Moreover, since most of the rest of the "A" issues are dependent on the location of the reception i
center,it is up to the Intervenors to show in their testimony"that the issues rema'nded by ALAB-832 are still relevant to the new facilities, j
As for the monitoring procedures (Issue "B" above), in light of ALAB-832 it must be concluded that their adequacy has been put into issue by the Intervenors. However, f
here there is a real potential for duplicating some of the efforts of the 50-322-OL-5 i
Board in the EP exercise proceeding, where at least some of the "B" issue set out above i
is already being litigated (see, for example, Contention EX 49). This Board and the par-4 ties will need to be careful to avoid taking up and litigating issues already being decided in the -05 docket. LILCO expects to move to strike testimony and object to cross-i examination that duplicates the -05 proceeding.
Finally, among the remaining seven issues (the "C" issues), there may be admissi-l ble issues, but the Intervenors have not been sufficiently precise or detailed to tell.
Some of these issues are simply attempts to reopen issues already litigated; for exam-
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ple, the adequacy of LILCO's public information and education materials and EBS mes-l 1
sages (Issue C.6) is not called into question by a change in the reception center. Like-1 wise, Issue C.5, about whether the public "would ever comply," is simply an effort to relltigate the " shadow phenomenon" issue of whether people will follow emergency ad -,
i-l visories. Issues C.3 and C.7 are too vague to be admissible. The remaining "C" issues (C.1,2, and 4) may or may not be admissible, depending upon whether the Intervenors w..
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can truly tie them to the new reception centers. Again, LILCO will object to testimony or cross-examination that attempts to reopen old issues and that is not connected to the new reception centers.
C.
Further proceedinsts LILCO proposes the following procedure for resolving the remaining issues about the reception centers. First, in lignt of ALAB-832, the parties (LILCO as well as the Intervenors) must be afforded discovery on the new reception ~ centers. They should be given four weeks for this purpose, commencing on the day that the Board decides whether to reopen the record.
Two weeks af ter the close of this four-week discovery period, the Intervenors should file their testimony on the adequacy of the new reception centers. This filing would 'oe like that ordered in the earlier reopening of the record. The Board in 1985 re-opened the record to assess the adequacy of the Nassau Coliseum and ordered the par-ties to submit direct testimony or other evidence on the merits of the designation of the Coliseum. Memorandum and Order Granting LILCO's Motion to Reopen Record, at s
9 (Jan. 28,1986).
Finally, LILCO sh'ould have the opportunity to submit testimony of its own to rebut the Intervenors' testimony two weeks af ter the Intervenors' testimony is filed.
FEMA and the NRC staff should fil'e their testimony simultaneously with LILCO. Mo-N tions to strike any ' testimony should be filed one week af ter the testimony is filed, and responses to such= motions should be filed three business days af ter the motions are filed. The hearing should commence two weeks af ter LILCO (and the NRC Staff and FEMA) file their testimony.
Other procedural details can be worked out as the hearing date approaches. For example, summary disposition motions should be allowed, on a schedule to be developed j
i later. Also, there may be a need for limited additional discovery af ter testimony is 4
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filed; opportunity for such discovery should be afforded only on a showing of good
.cause.
Respectfully submitted, L^-24 b James N. Chrfitman Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: December 1,1986 I
o LILCO, December 1,1986
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DCLMEH E usHvc CERTIFIC ATE OF SERVICE
'86 DEC -4 All :42 In the Matter of 6FFin.- :
,M LONG ISLAND LIGHTING COMPANY 00CXi.imG A RPrci NCH (Shoreham Nuclear Power Station, Unit 1)
Docket No. 50-322-OL-3 I hereby certify that copies of LILCO's Brief on Reopening the Reception Center Issue were served this date upon the following by telecopier as indicated by one aster-isk, by Federal Express as indicated by two asterisks, or by first-class mail, postage pre-paid.
Morton B. Margulies, Chairman **
Atomic Safety and Licensing Atomic Safety and Licensing Board Panel Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 East-West Towers, Rm. 407 4350 East-West Hwy.
Bernard M. Bordenick, Esq. **
Bethesda, MD 20814 Oreste Russ Pirfo, Esq.
Edwin J. Reis, Esq.
Dr. Jerry R. Kline **
U.S. Nuclear Regulatory Commission Atomic Safety and Licensing 7735 Old Georgetown Road Board (to mailroom)
U.S. Nuclear Regulatory Commission Bethesda, MD 20814 East-West Towers, Rm. 427 4350 East-West Hwy.
Herbert H. Brown, Esq. **
Bethesda, MD 20814 Lawrence Coe Lanpher, Esq.
Karla J. Letsche, Esq.
Mr. Frederick J. Shon **
Kirkpatrick & Lockhart Atomic Safety and Licensing Eighth Floor Board 1900 M Street, N.W.
U.S. Nuclear Regulatory Commission Washington, D.C. 20036 East-West Towers, Rm. 430 4350 East-West Hwy.
Fabian G. Palomino, Esq. **
Bethesda, MD 20814 Richard J. Zahnleuter, Esq.
Special Counsel to the Governor Secretary of the Commission Executive Chamber Attention Docketing and Service Room 229 Section State Capitol U.S. Nuclear Regulatory Commission Albany, New York 12224 1717 H Street, N.W.
Washington. D.C. 20555 Mary Gundrum, Esq.
Assistant Attorney General Atomic Safety and Licensing 120 Broadway Appeal Board Panel Third Floor. Room 3-116 U.S. Nuclear Regulatory Commission New York, New York 10271 Washington, D.C. 20555
{. 1 Spence W. Perry, Esq. **
Ms. Nora Bredes William R. Cumming, Esq.
Executive Coordinator Federal Emergency Management Shoreham Opponents' Coalition Agency 195 East Main Street 500 C Street, S.W., Room 840 Smithtown, New York 11787 Washington, D.C. 20472 Gerald C. Crotty, Esq.
Mr. Jay Dunkleberger Counsel to the Governor New York State Energy Office Executive Chamber Agency Building 2 State Capitol Empire State Plaza Albany, New York 12224 Albany, New York 12223 Martin Bradley Ashare, Esq.
Stephen B. Latham, Esq. **
Eugene R. Kelly, Esq.
Twomey, Latham & Shea Suffolk County Attorney 33 West Second Street H. Lee Dennison Building P.O. Box 298 Veterans Memorial Highway Riverhead, New York 11901 Hauppauge, New York 11787 Mr. Philip McIntire Dr. Monroe Schneider Federal Emergency Management North Shore Committee Agency P.O. Box 231 26 Federal Plaza Wading River, NY 11792 New York, New York 10278 Jonathan D. Feinberg, Esq.
New York State Department of Public Service, Staff Counsel Three Rockefeller Plaza Albany, New York 12223 ames N. Chrtitman Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: December 1,1986
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