ML20215B011
| ML20215B011 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 09/30/1986 |
| From: | Zeugin L HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20215B013 | List: |
| References | |
| CON-#486-0964, CON-#486-964 OL-3, NUDOCS 8610060329 | |
| Download: ML20215B011 (7) | |
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LILCO, Sept:mber 30,1986 4
s UNITED STATES OF AMERICA DOCKETED UStiRC NUCLEAR REGULATORY COMMISSION 5 0CT -3 hli 51 Before the Atomic Safety and Licensing Board CFF'CE 0" % 4,'
r.00 tit In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
LILCO'S MOTION TO REOPEN RECORD LILCO hereby moves to reopen the evidentiary record on Contention 24.0 in this proceeding for the purpose of replacing the Nassau Veterans Memorial Coliseum as a reception center with three LILCO facilities - the Hicksville, Bellmore and Roslyn Operaticas Centers. The factual bases for this revision are detailed in the attached Affidavit of Elaine D. Robinson. The pertinent changes are contained in Revision 8 to the Shoreham Offsite Emergency Plan.
I. Background This motion to reopen must begin with a brief history of the reception center issue and with a description of why this Board once again has jurisdiction over the issue.
Contention 24.0 alleges that "there is no relocation center designated for a significant l
portion of the anticipated evacuees." See Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-85-12,21 NRC 644,979 (1985). In response to this conten-tion in 1984, af ter Suffolk County and New York State facilities were withdrawn from the plan, LILCO designated the Nassau Coliseum as the reception center for evacuees.
This change was supported by a letter of agreement between LILCO and the manage-ment of the Nassau Coliseum, and appropriate revisions to the Shoreham Plan to include the Coliseum. In its Concluding PartialInitial Decision (CPID), this Board ruled 8610060329 860930 PDR ADOCK 00000322 0
PDR 03 03
a that "LILCO's overall procedures for processing evacuees at the Coliseum (were] con-ceptually adequate." Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-85-31, 22 NRC 410, 419 (1985). However, the Board found that LILCO needed to provide more detail about the arrangements for the monitoring and processing of i
evacuees not seeking shelter. Id. at 417,419.
The Board's decision was appealed both by Intervenors and LILCO. Intervenors argued, in part, that the Board erred by excluding proffered testimony on:
i 1.
whether the evacuation shadow phenomenon would be increased as a result of the location of the reception center; 2.
whether use of the Nassau Coliseum would increase doses and adverse health effects following a Shoreham accident; 3.
whether evacuees would create serious traffic congestion around the Coliseum; 4.
whether Nassau County was required to prepare an environ-mental assessment and to obtain a discharge permit using the Coliseum as a reception center; 5.
whether the water supply would be affected by decontami-nation activities at the Coliseum; and G.
whether agreements existed with congregate care centers.1/
The Appeal Board concurred that the Board should have admitted evidence on items 1-5, but upheld the Board's denial of testimony on item 6.M The Appeal Board I
remanded Contention 24.0 to this Board with instructions to admit the excluded testi-t mony. Ld. The Appeal Board stayed. Its remand pending Commission review. On
]..
September 19, 1986, the Commission issued an order lif ting the stay of the remand on the five issues related to the Nassau Coliseum.3/
i 1/
See Intervenors Brief on Appeal of Licensing Board August 26, 1985 Concluding Partial Initial Decision on Emergency Planning, pp. 32-34 (Nov. 6,1985).
4 2/
Long Island Lighting Co. (Shoreham Nuclear Power Station Unit 1), ALAB-832,23 NRC 135,162 (1986).
l 3/
Commission Order, Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1) (Sept.19,1986).
4 1
.m.
a.
LILCO's appeal of the Board's decision on Contention 24.0 focused on the Board's conclusion that LILCO must plan not only for those evacuees needing sheltering and relocation services, but also for evacuees who are likely to come to the Coliseum only for radiological monitoring and decontamination. LILCO challenged this conclusion as to evacuees desiring only monitoring / decontamination on the grounds that it addressed matters outside the scope of the issues admitted for litigation and that the decision imposed obligations beyond those contained in NRC emergency planning requirements or guidance. On September 19, 1986, the Appeal Board remanded the issue to this Board and instructed it to reconsider whether the issue of planning for evacuees who would seek monitoring / decontamination, but not sheltering, had been properly raised for litigation.M As a result of the rulings, this Board now has before it a number of issues relating to the adequacy of the Nassau Coliseum as a reception center. Yet, while the Appeal Board and Commission were considering challenges to the CPID, the factual underpinnings of that earlier ruling were changing. In May 1986, the Nassau County Board of Supervisors began to reconsider whether they would continue to agree to allow the Nassau Coliseum to be used as a reception center for the Shoreham Plan. Af ter a process which included public lobbying by at least one Suffolk County legislator and by the head of the New York State Consumer Protection Board, the Nassau County Board of Supervisors, on June 16,1986, passed a resolution removing the Nassau Coliseum as a reception center for LILCO's emergency planning purposes.El See attached Affidavit of 4/
Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-847, slip op at 8-9 (September 19, 1986). The Appeal Board declined to rule on whether i
applicable regulatory requirements supported the Board's decision.
5/
The Nassau County action affects only the use of the Coliseum for planning pur-poses. During an actual emergency, LILCO believes, consistent with its realism theory, that the Nassau County Executive, pursuant to his Article 2B authority would authorize use of the Coliseum as a reception center. Nevertheless, LILCO has chosen to replace the Coliseum in the Plan with at least equivalent facilities.
L w,
Elaine D. Robinson. LILCO has since replaced the Co!!seum with three of its own facill-ties located in Nassau County, and has described them in Revision 8 to the Shoreham Offsite Emergency Plan, filed on September 18, 1986.
II. Basis for the Motion to Reopen The criteria for reopening a closed evidentiary record in a formal licensing pro-ceeding were recently codified by the Commission in 10 CFR S 2.734. 51 Fed. Reg.
19,535,19,539 (May 30,1986). The proponent of a motion to reopen must satisfy three criteria:
1.
The motion must be timely, except that an exception-ally grave issue may be considered in the discretion of the presiding officer even if untimely presented.
2.
The motion must address a significant safety or envi-conmental issue.
3.
The motion must demonstrate that a materially differ-ent result would be or would have been likely had the newly proffered evidence been considered initially.
Id. at 19,539 col. 3. As has of ten been noted, a party seeking to reopen the record bears a " heavy burden." Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-756,18 NRC 1340,1344 (1983); 51 Fed. Reg.19,538 col. 2. LILCO believes it meets these three criteria and that the record should be reopened to reflect the three new reception centers designated in the Shoreham Plan.
A.
Timeliness First, a motion to reopen a record must be timely. On June 16, 1986, the Nassau County Board of Supervisors resolved not to allow use of the Nassau Coliseum in the Shoreham Plan without the Board's prior approval.
On the following day, LILCO notified the Commission, Appeal Board and Licensing Board of Nassau County's ac-tion.EI s/
Letter, Donald P. Irwin to NRC Commissioners, et al. (June 17, 1986).
Subsequent to this initial notification, LILCO informed the Commission on August 4,1986 that alternative reception centers would be detailed in Revision 8 to the Shoreham Offsite Emergency Plan which LILCO expected to publish "in about two weeks."II The following week, in response to an Appeal Board question about the effects of the withdrawal of the Nassau Coliseum on the issues pending before it, LILCO again reported that Revision 8 "should be ready next week."EI Ultimate publica-tion of Revision 8 was delayed by a number of factors, including the magnitude of plan revisions caused by a change in reception centers, formal sign-off procedures within LILCO, and completion of consultants' work on the viability of the three new reception centers. Revision 8 was transmitted to plan holders on September 18, 1986. This motion follows.that distribution by just over a week. Accordingly, it is timely.EI In addition, there is no danger that any party has been surprised or otherwise prejudiced by the timing of this motion. Indeed, representatives of both Suffolk County and New York Stat 9 lobbied the Nassau County Board of Supervisors for removal of the Coliseum from' the LILCO Plan.
Following Nassau County's action, LILCO has l
i I/
LILCO's Response to Intervenors' Supplemental Answer to LILCO's Petition for Review of ALAB-832 and Their Motion for Leave to File Same, p. 3 (Aug. 4,1986).
i 1/
LILCO's Views on the Effect of the Nassau County Resolutions, p. 2 (Aug.11, 1986).
2/
Intervenors can be expected to argue that LILCO should not be allowed "another bite at the apple" on the reception center issue. Intervenors made a similar argument when LILCO moved to reopen the record on the Nassau Coliseum. That argument was rejected by this Board and affirmed the Appeal Board in ALAB-832. See Memorandum and Order Granting LILCO's Motion to Reopen Record (Jan. 28,1985); ALAB-832, 23 i
NRC at 160 n.27 (March 26,1986). At that point, LILCO was, as it is again, in the posi-tion of having to find new relocation facilities since Intervenors had embargoed LILCO's intentions to use public facilities controlled by New York State or Suffolk County. At that time, the Board refused to hold LILCO liable for acts of its antago-nists. The situation is similar here, where Intervenors were actively involved in con-vincing the Nassau Board of Supervisors to end the Nassau Coliseum's availability to LILCO as a reception center for planning purposes.
l t
_ _ _ _ _ ____... ~ _ _., _ _,_. -
O 4 proceeded diligently to find alternative reception centers and has kept the parties and NRC updated on its progress. Once those plans were finalized in Revision 8, LILCO promptly filed this motion to reopen.
B.
Significant Safety Issue Second, a motion to reopen must address a "significant safety or environmental issue." In a ruling on a prior motion to reopen the record on reception center issues, this Board concluded that "the identity of the relocation center presents a significant safety issue." Memorandum and Order Granting LILCO's Motion to Reopen Record, pp. 7-8 (Jan. 28,1985). That ruling applies with equal force here.EI C.
Different Result Might Be Reached Finally, a motion to reopen must show that a "different result would be or would have been likely had the newly proffered evidence been considered initially." 51 Fed.
Reg.19,539 col. 3. In its prior ruling on a motion to reopen the record on reception centers, this Board found that the identification of reception centers "might result in a different outcome in this proceeding." Memorandum and Order, p. 8 (Jan. 28,1985).
The same reasoning applies to this motion. In addition, Intervenors have argued on numerous occasions that without the identification of a reception center, the Board cannot find for LILCO on the identity and adequacy of the reception centers. See Let-ter from Suffolk County Counsel to the Board, p. 2 (Nov. 7,1984); Suffolk County, State of New York, and Town of Southampton Supplemental Answer to LILCO's Petition for Review of ALAB-832, p. 4 (July 22,1986).
M/
Intervenors presumably agree that the identity of reception centers is a signifi-cant safety issue. In a recent filing with the Commission, Intervenors asserted that the withdrawal of the Nassau Coliseum from the LILCO Plan created "a substantial void in the record." Suffolk County, State of New York, and Town of Southampton Supplemen-tal Answer to LILCO's Petition for Review of ALAB-832, p. 3 (July 22,1986).
6 m
.o
. i III. Conclusion For the reasons stated above, LILCO has satisfied the three criteria for reopen-Ing. Accordingly, the record on Contention 24.0 should be reopened and the Board should promptly commence proceedings to consider the adequacy of the three reception centers identified in Revision 8 to the Shoreham Offsite Emergency Plan.
Respectfully submitted, ITohald P. Iryn G James N. Christman Lee B. Zeugin Kathy E. B. McCleskey
' Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: September 30,1986 l
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