ML20215D572
| ML20215D572 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 12/11/1986 |
| From: | Kline J, Margulies M, Shon F Atomic Safety and Licensing Board Panel |
| To: | LONG ISLAND LIGHTING CO., SHOREHAM OPPONENTS COALITION, SUFFOLK COUNTY, NY |
| References | |
| CON-#486-1887 86-533-01-OL, 86-533-1-OL, OL-3, NUDOCS 8612160409 | |
| Download: ML20215D572 (22) | |
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/ff7 UNITED STATES OF AMERICA Dh pCED NUCLEAR REGULATORY COPHISSION ATOMIC SAFETY AND LICENSING BOARD '85 CEC 15 E3 35 Before Administrative Judges:
Morton B. Margulies, Chairman Dr. Jerry R. Kline Mr. Frederick J. Shon SERVED DEC 151986
)
In the Matter of ) Docket No. 50-322-0L-3
) (Emergency Planning)
LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1) ) December 11, 1996
)
MEMORANDUM AND ORDER (Rulings on LILC0 Motion to Reopen Record and Remand of Coliseum Issue)
By motion dated September 30, 1986 LILCO seeks to reopen the evidentiary record in the subject proceeding on Contention 24.0 for the purpose of presenting evidence on replacing the Nassau Veterans Memorial Coliseum (Coliseum) as a reception center with three of its own facilities, the Hicksville, Bellmore and Roslyn Operations Centers.
Staff in a response of October 10, 1986 supports LILCO's motion.
Suffolk County, State of New York, and Town of Southampton, (Intervenors) in a response dated October 14, 1986 urge rejection of the LILC0 motion.
The Board on November 13, 1986 requested the parties' views on whether the Board has jurisdiction to entertain LILC0's motion and on the scope of the proceeding as proposed by Intervenors if the motion were granted. All parties filed timely responses to the Board's 8612160409 861211 2 DR ADOCK 050 J} $C b 1
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2 request. None exercised the option to file a response with the Board to the initial filings made by other parties.I For the reasons discussed below we find that the Board has jurisdiction to rule on the motion and that Applicant's motion should be granted. We further determine the scope of the reopened proceeding and rule that the reopened proceeding shall also constitute the hearing called for in the Appeal Board's remand of the Coliseum reception center issue in ALAB-832, 23 NRC 135, 157-162 (1986).
Jurisdiction LILC0 and the Staff advise that the Board has jurisdiction to consider LILC0's motion because the issue is one concerning the adequacy of reception centers and that issue, in Contention 24.0, was remanded to the Board by the Appeal Board.2 Staff contends that although the Board lost jurisdiction of the issue when it initially passed to the Appeal Board, the Board regained jurisdiction when the issue was remanded and the Commission by Order of September 19, 1986 directed that'the remand I Subsequent to the preparation of this Memorandum and Order a response from Intervenors that was due on December 8, 1986 was received on December 11, 1986. Nothing therein would cause us to change our conclusions in this Memorandum an'd Order.
That issue was defined in ALAB-832 at 162 as whether there were any factors, including the location of the reception center relative to the various portions of the EPZ, that might make the facility unsuitable to serve as a reception center for EPZ evacuees.
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3 take effect. Further, the Appeal Board recognized in ALAB-847, (Slip Op. at 17-18, Sept.19,1986), that the Board, under the remand in ALAB-832, should look at the adequacy of a relocation or reception center which might be designated as substitutes for the Coliseum. The Appeal Board stated in part: "We realize, of course, that LILC0 must now modify its plans because the Coliseum will be unavailable as a reception center. Presumably, the Board will need to reexamine the adequacy of any new facility selected by LILCO." Staff asserts this Board's jurisdiction was not narrowly limited by the terms of the remand to issues related only to the Coliseum but expressly included the authority to consider any new facility selected by LILCO.
Intervenors agree that the Board regained jurisdiction over relocation center issues because of the remand but argue that our jurisdiction is narrowly constrained to considering only the specific issue which was remanded, i.e., the Coliseum issue. We have no authority in Intervenors view to consider any other facilities that LILC0 has proposed for use as reception centers. Intervenors assert that LILC0 itself acknowledged the validity of this position when it filed its motion to reopen the record to consider new evidence instead of attempting to have its evidence considered within the already reopened remand proceeding.
The Board agrees with LILC0 and Staff that we have jurisdiction to consider a motion to reopen the record on Contention 24.0 because this general issue has been remanded to us. We are not as narrowly
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4 constrained in our jurisdiction as Intervenors believe. The Appeal Board explicitly recognized that we would likely be required to consider on the remanded issue the adequacy of facilities other than the Coliseum. Our jurisdiction stems from the Rules of Practice and actions taken by the Appeal Board and the Commission. It is not derived from the mi,'er of LILCO's filing and thus it is irrelevant that LILCO might have cheten an alternative means of placing the issue before us.
We have the jurisdiction to decide the reception center issue as raised by Contention 24.0 and defined by the Appeal Board, irrespective of the individual facility identified to fulfill that role. The jurisdiction is there whether the matter of the substitution of reception centers is first raised as part of the remanded proceeding or as Applicant has done here. Form shall not overshadow substance.
Background
The matter of establishing a reception center for evacuees in case of a radiological emergency at Shoreham began with Applicant's emergency plan designating five facilities in Suffolk County to serve as primary arm backup facilities for providing radiological monitoring and ,
decontamination services, and emergency sheltering. The facility designed to carry out all three- functions was termed a relocatien center.
In Contention 24.0, Intervenors asserted that one of the primary designated centers was not available for use as a relocation center, and
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as a consequence, the evacuees for a significant portion of the plume EPZ would be without a designated facility. In succeeding months LILC0's plan went through significant changes resulting from its inability to establish and retain suitable relocation centers in Suffolk County. Whenever LILC0 identified facilities to be used as relocation centers, the specified centers became unavailable. LILC0 ultimately asked the assistance of the Nassau County Chapter of the American Red Cross to find suitable facilities in Nassau County. Under a revised plan, based on Nassau County facilities, reception centers were to be used to provide monitoring and decontamination services and separate congregate care centers were designated to furnish emergency sheltering for evacuees.
At the time of the hearing in August 1984 there was no designated facility to serve as a reception center. Negotiations were being conducted for the use of two facilities in Nassau County. LILC0 was reluctant to name them at that juncture for fear outside pressures might lead to their withdrawal if their identity become known. The record in the proceeding closed in August 1984 with the Board having declared a void in the record on the matter.
On October 30, 1984 LILC0 made available to the Board a letter dated October 1, 1984 from the Nassau County Executive to the General Manager of the Coliseum (Hyatt Management Corporation of New York, Inc.)
approving use of the Coliseum as a reception center under the LILC0 plan and a letter of agreement between LILC0 and the General Manager of the Coliseum, dated September 25, 1984 and approved on October 8, 1984, i
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allowing LILC0 to use the Coliseum as a reception center. Applicant expressed its belief that this information was merely a confirmation of commitments already reflected in the record that did not require a reopening of the record in order to be considered by the Board. The Board held to the contrary on January 4,1985 and gave LILC0 ten days to file a motion to reopen the record. LILC0 filed a timely motion to reopen. The motion was supported by Staff and opposed by Intervenors.
The Board granted the motion on January 28, 1985 and set a schedule for responses to Applicant's proffered testimony. Responses were submitted and ruled upon by the Board.
A hearing was held on June 25 and 26, 1985 on whether the Coliseum was functionally adequate to accommodate the number of evacuees that might be expected to appear in the event of a radiological emergency.
The Board found in LBP-85-31, 22 NRC at 417-19 that
. . . LILC0's overall procedures for processing evacuees at the Coliseum [are] conceptually adequate. However, LILC0 must provide more detail concerning the size of the areas and available facilities, and how that relates to the number of people that must be processed Furthermore, LILC0's time estimate must fall somewhere within the range contemplated by NUREG-0654 5 II.J.12:
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.
Intervenors appealed tho Licensing Board's action on the reopening of the record and subsequent handling of the issue of the adequacy of the Coliseum on a number of grounds. ALAB-832, 23 NRC at 157-162. Some were found by the Appeal Board to be meritorious and others were not.
7 The Appeal Board upheld the Board on its finding that the motion to reopen was timely filed. It found error in not permitting discovery by Intervenors for the reopened hearing. Further, it found the Board too narrowly considered the issue of whether the Coliseum was functionally adequate to serve as a relocation center for the anticipated number of general evacuees. The Appeal Board concluded that not only did the matter involve the capability of the Coliseum's physical facilities but that it also extended to other factors that could affect its utility as a reception center. They included:
(a) whether transportation and traffic problems might develop as a result of the Coliseum's location and its distance from the plume EPZ; (b) whether the Coliseum's location might create problems in regard to the evacuation shadow phenomenon; (c) whether the proposed use of the Coliseum for reception center purposes requires authorization under state environmental law; (d) whether health and safety problems might be caused through the use of the Coliseum as a reception center through its effect on the water supply; (e) whether the distance of the Coliseum from the plume EPZ would increase exposure to radiation causing an additional problem.
The Appeal Board found it correct for the Board not to hear further evidence on congregate care centers, the sheltering facilities, because it was a matter that was fully litigated.
In filing the subject motion Applicant reports that the Coliseum has gone the way of the other facilities and it is no longer available for its use. LILC0 wants to substitute its Hicksville, Bellmore and Roslyn Operations Centers for service as reception centers.
8 Analysis The criteria to be met for reopening an evidentiary record in Commission proceedings are contained in 10 CFR 2.734. It requires that the motion: (1) be timely; (2) address a significant safety or environmental issue; and (3) demonstrate that a materially different I
result would be or would have been likely had the newly proffered evidence been considered initially. A party seeking to reopen a record bears a heavy burden. Pacific Gas & Electric Co. (Diablo Canyon Nuclear l
Power Plant, Units 1 and 2), ALAB-756, 18 NRC 1340, 1344 (1983).
(1) Timeliness LILC0 contends its motion to reopen the record is timely. It l
states that it was first on June 16, 1986, that the Nassau County Board of Supervisors by a resolution decided not to allow use of the Coliseum l in the Shoreham plan. On August 4,19C6 Applicant notified the Commission that alternative reception centers would be detailed in i
Revision 8 to the Shoreham plan. Revision 8 was transmitted to plan holders on September 8, 1986. Ultimate publication of the Revision was reported to be delayed by the magnitude of the plan revisions caused by the change in the reception centers, the final sign off procedures within LILCO, and completion of consultant work on the viability of the use of the three reception centers. The September 30, 1986 motion was ,
filed within two weeks of distributing Revision 8.
Intervenors argue that the LILC0 motion is absolutely untimely.
LILC0 was said to be on notice since at least February 1985 that there was never any valid agreement for use of the Coliseum as a reception
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center. They aade an offer of proof to that effect at the reopened hearing in February 1985. On May 2, 1986 the County Attorney of Nassau County wrote to the Commission that there had been no valid designation of the Coliseum for any purpose related to LILC0's plan. Intervenors argue Applicant was therefore on notice of the nullity of its agreement to use the Coliseum, long before a Suffolk County legislator and the New York Consumer Protection Board director appeared before the Nassau County Board of Supervisors in early June 1986 urging denial of the use of the Coliseum in the Shoreham plan. Intervenors assert that the reasons givsa for the delay are conclusory and without specifics. They want the matter of timeliness to be judged in the context that this latest change involves properties wholly within LILC0's control and could have occurred long ago. Intervenors note that the Board in this proceeding had found an Intervenors' motion to be untimely when as little as one month had elapsed between the occurrence of the event and the filing of the motion to reopen. They conclude that the pendency of LILC0's Petition for Review of ALAB-832, involving Contention 24.0 did not obviate LILCO's obligation to file its motion in a timely manner.
Staff's position on the matter is that the filing was timely.
Applicant could not be certain of reception center availability until final arrangements had been made.
Basically, Applicant and Intervenors argue as to what the triggering mechanism should be to start counting the time for determining timeliness. Applicant would consider it to be the completion of all arrangements for the new facilities which occurred in
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10 mid September 1986, with the matter of the changed plan detailed in the Revision 8. Intervenors would count it from the first time Applicant was advised by a party that the agreement for use of the facility was a nullity. They would charge Applicant for all the time it took to arrange for the new farilities, which always have been under the direct control of LILCO.
Neither position is meritorious. Applicant should be charged with any unwarranted delay in making the changes that result in the motion for reopening of the evidentiary record. It would be error to permit an applicant to take undue time to make changes but to consider the motion timely because it is filed immediately on the heels of the final action to adopt the changes. However, Applicant cannot be charged with an untimely filing absent determinative notice that action was required, and that there was adequate opportunity to make the changes.
LILCO had a letter of agreement with the Hyatt Managecent Corporation of New York, Inc. for use of the Coliseum as a reception center. The former leased and managed the Coliseum under an agreement with Suffolk County. It was under no obligation to rely upon gratuitous advice of opposing parties as to the enforceability of its agreements.
It was on June 16, 1986 when the Nassau County Board of Supervisors decided not to allow use of the Coliseum in the Shoreham plan that Applicants had determinative notice of the need to take action.
It took Applicant three months to make the changes in the plan by substituting three of its own facilities for the county property. The magnitude of the plan revision, the completion of consultants work and
e 11 sign off procedures within LILCO were said to consume this time. There is no breakdown in the motion or the supporting affidavit as to how such time was spent.
That the revisions of the plan constitute a change of some magnitude is clear. Intervenors state that the changes " constitute a wholesale restructuring of large portions of the plan and the entire relocation and reception concept and procedures previously presented and litigated." From the information at hand, it is not possible to tell if the entire three month period was reasonably spent in effecting the changes. From their extensive nature and completness of the action not too much time could have been wasted in the three month period even taking into account that LILC0 operated facilities are being substituted.
The fact that this may be the fifth revision to the plan involving centers has not been shown to be something with which Applicant should be faulted in the motion to reopen. Its repeated loss of government facilities was not shown to emanate from anything it did. In fact, State and County officials were participants in requesting the Nassau County Counsel to take the action it did on June 26, 1986. It was LILC0's managerial decision to continue to seek the use of different j governmental facilities for centers even after they regularly became I
unavailable. The Board will not second guess the Applicant on its judgment in so doing.
Timeliness has to be judged in the context of the status of the proceeding. Although the record has closed, all issues have not yet
0-12 been resolved. The Appeal Board has remanded a number of matters including the reception center issue. The Commission has also remanded the " realism" issue to the Board. All of these issues have yet to be resolved. In addition, Intervenors have moved the Commission to reopen the record in three other areas. The length of time taken by Applicant to make the underlying changes and to file the motion were not shown to prejudice Intervenors or to interfere with concluding the proceeding.
The Appeal Board in ALAB-832, 23 NRC at 159 stated:
Licensing Boards are vested with broad discretion in the conduct of the proceedings before them.
Thus, so long as they have a rational foundation, board determinations on such questions as the timeliness of motions are not likely candidates for reversal.
The record before us presents an adequate foundation for us to determine that the motion was timely filed under the provisions of 10 CFR 2.734(a)(1). Applicant in fully arranging for new facilities within three months after formal notification of the unavailability of the Coliseum acted within a reasonable time in so doing. Similarly, its
. filing of the motion within two weeks thereafter was reasonable.
Intervenors had previously raised with the Appeal Board the Board's prior determination that a one month time interval for Intervenors to make the filing rendered it untimely. We find here, as the Appeal Board previously found in regard to the other situation', "the Intervenors have not established a similarity of relevant factors in the two situations."
ALAB-832, 23 NRC 135, 160, n. 97.
6 13 (2) Significant Safety Issue All of the parties are in agreement that the motion satisfies 10 CFR 2.734(a)(2) which requires that the motion address a significant safety or environmental issue. This Board in ruling on the prior motion to reopen the record on reception center issues, concluded that "the identity of the relocation center presents a significant safety issue."
Memorandum and Order Granting LILC0's Motion To Reopen Record, at 7-8 (January 28,1985). Applicant again seeks to do the same thing and there is no reason to alter the Board's prior finding. The matter presents a significant safety issue.
(3) Possibility of a Different Result The motion demonstrates that a materially different result would be likely had the newly proffered evidence been considered initially, as required by 10 CFR 2.734(3).
Applicant relies upon the Licensing Board's ruling on the prior motion to reopen the record on reception centers that the identification of reception centers "might result in a different outcome in this i
proceeding." Id. at 6. Also, Applicant asserts Intervenors have argued on numerous occasions that without the identification of a reception center, the Board cannot find for LILC0 on the identity and adequacy of the reception centers. ,
Staff also would rely on this Board's prior finding as Applicant does. It states that it is beyond argument that without an approved reception center, LILC0's plan would be deficient.
Intervenors' position is that with LILC0's admission that it will not use the Coliseum in its plan the record reverts to its posture as of
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August 29, 1984 when the record first closed and there was a void in the !
l record with respect to LILC0's relocation proposal. They state that as l a result, LILC0 was found on the record to have failed to sustain its burden of proof concerning the adequacy of its relocation center plan.
Intervenors assert that, although for different reasons, the new relocation scheme on its face is just as inadequate as was the case in August 1984 when there was a void in the record. Interveners state it must be concluded as a matter of law that LILCO's proposal could never result in a finding that the utility has sustained its burden of proof on the reception center issues sought to be reopened. The proposal is stated to be inadequate on its face. It argues that, "this Board could never approve of a scheme to monitor and decontaminate up to 100,000 evacuees in three parking lots and four trailers," which is what the plan consists of.
The withdrawal of the Coliseum from the Shoreham plan places the proceeding in the posture it was in when LILC0 had not identified a reception center and it was held to be a void in the record. The failure to identify the reception center was found by this Board to be of sufficient significance that it constituted a failure of proof, the correction of which "might result in a different outcome in this proceeding." On that basis we granted Applicant's motion to reopen the record to identify the reception center and show its adequacy. The same course should be followed here. Applicant has come forward to identify -
the reception centers and show their adequacy and that a different result could be reached than from where there had been a failure of
15 proof on an important element in the plan. 10 CFR 2.734(a)(3) has been satisfied and the motion to reopen the record should be granted, j Intervenors' argument that there would not be a different result because, as a matter of law, the proposed change is worthless, thereby perpetuating the failure of proof and maintaining the status quo, is without merit.
Although Intervenors claim that as a matter of law Applicant's reception center proposal is defective, they cite no factual or legal basis for this conclusion. Further, the claim is based on an assumption that up to 100,000 evacuees would have to be monitorev 'nd decontaminated. The figure is not supported by the record.
Intervenors' position is also invalid in that it would require the Board to factually determine the adequacy of the new facilities prior to deciding on whether to reopen the record. Intervenors have the procedure reversed. A factual evaluation of the proposal is to be made following a determination that the elements of 10 CFR 2.734 have been satisfied and after the record is reopened.
Applicant has satisfied the requirements of 10 CFR 2.734.
- Scope l
Events have overtaken planning for reception, centers, and the original wording of Contention 24.0 is no longer applicable to the factual situation before us. The essential concern stated in the
4 16 contention remains valid. It shall be determined whether LILC0's emergency response plan contains adequate provision for reception centers for use by the public in the event of an radiological emergency at Shoreham.
Controversy regarding the scope af factual evidence required to prove or controvert the matter at issue in the reopened proceeding has existed from the outset of litigation. In the previously reopened proceeding, the Board stated that the scope of the proceeding encompassed the " functional adequacy" of the relocation center itself.
In its remand order, the Appeal Board saw the issue more broadly as including "whether there are 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." This definition is the one that guides the scope of this reopened hearing. The Appeal Board specified five issues on remand for .
the Board to consider, which are set forth on page 7 above.
The issues shall be included within the scope of the reopened hearing although LILCO argues that at least one of them, the alleged need for a State Environmental Impact Statement for the county Coliseum under state environmental law, has been mooted by the replacement of the Coliseum with other facilities. LILCO argues tha.t no statement is now needed because its own private facilities require no such statement.
However, we shall not exclude any remanded issue at this time. With the simultaneous filings by the parties, Intervenors have not responded to the LILC0 claim. The matter can be raised at the next opportune time.
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17 In addition to the foregoing issues connected with relocation l center planning, Intervenors assert that the new radiological monitoring procedures for the public disclosed in Revision 8 of LILC0's Plan must be examined in this hearing. The Intervenors position is that the proposed monitoring procedures are inadequate because they will not ensure that all contaminated persons will be identified in a timely manner. LILC0 does not dispute that its monitoring procedures are material to the resolution of the relocation center issue. The Staff did not address this issue, however the Board concludes without the Staff's advice that monitoring of evacuees is an important function to be performed at relocation centers and that adequacy of proposed monitoring procedures is material to the resolution of the relocation center controversy.
Intervenors also submitted seven other issues in its " Opposition to LILC0's Motion to Reopen the Record" which it asserts must be considered before Contention 24.0 can be resolved. LILC0 and the Staff briefed us l on their views as to whether these issues must be considered, but the results were mixed. The Board has considered the parties' views and has reviewed the issues. We conclude that some of Intervenors' issues are matters which are properly within the scope of the reopened proceeding and that others are in the nature of new late-fil.ed contentions which may not be admitted absent a showing that the record should be reopened and that late-filed contentions should be admitted for litigation.
Issues Intervenors wish to have included in the reopened proceeding are as follows:
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.1) the adequacy of evacuation routes to the three LILC0 facilities proposed as reception centers, including the effects of traffic congestion on the way to and in the vicinity of the facilities, and LILCO's Revision 8 proposal to employ traffic guides on Nassau County roadways;
- 2) the impact of the new relocation scheme upon evacuation time estimates, and evacuation vehicle requirements;
- 3) , staff requirements given the new scheme;
- 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 also proposed by LILCO to be the LERO worker relocation center;
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- 5) whether the public would ever comply with LILC0's suggested relocation proposal and registration, monitoring, and decontamination procedures;
- 6) the adequacy of LILCO's public information and education neterials and EBS messages regarding the locations for monitoring and' decontamination and services to be provided evacuees;
- 7) whether the proposal to send evacuees to LILC0 parking lots could or would ever be implemented in a way to protect the public health and safety.
The Board accepts issues 1, 3, 4, and 7 as matters that must be considered in the resolution of Contention 24.0. This is in the context of whether there are any factors that might make the facilities unsuitable to serve as reception centers for EPZ evacuees. Issue number 7, although stated vaguely, is admitted because Intervenors have clarified in their response that it refers to LILC0's ability to perform radiological monitoring of the public in'its revised plan. LILCO's
19 ability to monitor evacuees is within the scope of this proceeding and issue 7 is admitted as so limited.3 Issues 2, 5, and 6 raise new questions which will not be considered without a showing under the regulations that the record should be reopened and late-filed contentions accepted.
The Board has considered Intervenors assertion that each of the issues we reject is linked in some way to LILCO's new proposal for relocation centers. That fact of linkage and the consequent need for LILC0 to make conforming changes in other parts of the plan is not dispositive. We are required to determine in this litigation whether there are any factors that might make the newly designated centers unsuitable to serve as reception centers for EPZ evacuees. The determinative element is whether the issues raised are material to establishing the suitability of the three locations to serve as reception centers for EPZ evacuees or whether they represent the conscquences the new relocation centers have on other parts of the LILC0 plan which were the subject of contentions heard separately and independently of Contention 24.0 and decided as such. Those issues falling within the second category do not come within the reopened 3
LILC0 has stated its concern that there not be duplicate litigation of monitoring issues in the 50-322-0L-5 Exercise proceeding and this one. The Board agrees that the same issues should not be litigated in both proceedings but concludes that it would be premature to rule on that matter in this Order. We expect the parties to advise us when it becomes evident that there will be duplication of issues in the two proceedings.
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20 proceeding. They should be heard separately upon a showing that the record on the other contentions should be reopened. Issues 2, 5, and 6 fall into the last category. We have previously resolved in LILCO's favor contentions that directly involve evacuation time estimates, evacuation vehicle requirements, the adequacy of public information and public response to emergency information. Information on reception centers was not necessary to reach a decision on these matters. Their resolutions are contained in LBP-85-12, 21 NRC 644 (1985). See p. 687 et seq. (Credibility); p. 757 g seq. (Notification); p. 768 g seq.
(Brt, dure); 781 et seq. (Evacuation time estimates); p. 817 et seq.
(Buses); p. 828 et seq. (Ambulances). The findings of the Board were approved upon appeal. ALAB-832. Review was declined by the Comission.
Order of Sept. 19, 1986. What Intervenors propose in issues 2, 5, and 6 i are not material to the disposition of the subject matter of the reopened hearing but are a collateral attack on the disposition made of the other contentions. Issues 2, 5, and 6 are outside the scope of this reopened proceeding and no evidence of these matters shall be heard.
Remand of Coliseum Issue The issues raised in the approved reopened proceeding encompass all of the issues contained in the Appe,al Board's remand of the Coliseum matter in ALAB-832. The reopened proceeding subsumes the remanded matter and shall become the mechanism for hearing and deciding the Coliseum remand issue.
- l 21 The action taken by this Memorandum and Order does nothing to affect the remand by the Appeal Board in ALAB-847, 24 NRC at (slip opinion at 8-9) for clarification as to whether the issue of LILC0's plan for monitoring evacuees not seeking shelter had been properly raised for litigation in Contention 24.0 and whether it constitutes a regulatory requirement. The issues raised are currently before the Appeal Board for determination. Memorandum and Order (November 4, 1986). We will deal with whatever matters may be raised by the resulting decision when it issues.
Request for Proposed Discovery and Hearing Schedule Applicant as part of its response to the Board's requested briefing on jurisdiction and the scope of the proceeding voluntarily submitted a proposed discovery and briefing schedule. Now having decided the motion for reopening in Applicant's favor, it is appropria+e for the Board to request a proposed discovery and hearing schedule for the reopened proceeding. The parties shall make the filing with the Board no later than 14 days from the issuance date of this Memorandum and Order ORDER Based upon all of the foregoing the Board hereby orders:
- 1. That Applicant's motion for reopening the record be granted.
- 2. That the scope of the reopened proceeding is as set forth in this Memorandum.
- 3. That the reopened proceeding constitutes the mechanism for hearing and deciding the remanded Coliseum issue.
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- 4. Parties shall file their individual proposed discovery and hearing schedules no later than 14 days from the issuance date of this Memorandum and Order.
FOR THE ATOMIC SAFETY AND LICENSING BOARD M
Mbrton B. Margulies Chairman ADMINISTRATIVE LAW DGE
/AM parry R.lKline XDMINISTRATIVE JUDGE
/ ,
f(M// .
J FredeFtcR J ADMINISTRAT U E Dated at Bethesda, Maryland this lith day of December,1986 9