ML20215D589
| ML20215D589 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 06/11/1987 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| References | |
| CON-#287-3768 CLI-87-05, CLI-87-5, OL-3, NUDOCS 8706190070 | |
| Download: ML20215D589 (11) | |
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..'N' UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'87 JUN 11 PS :54 COMMISSIONERS:
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Lando W. Zech, Jr., Chairman DOC %.c C
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Thomas M. Roberts James K. Asselstine 1
Frederick M. Bernthal SRVB JUN 12 W Kenneth M. Carr In the Matter of LONG ISLAND LIGHTING COMPANY Docket No. 50-322 OL-3 (Shoreham Nuclear Power Station, Unit 1)
MEMORANDUM AND ORDER CLI-87-05 Intervenors ask the Commission to reopen the emergency planning record based on two "new" developments:
- 1) the withdrawal of WALK Radio as the primary emergency broadcast system (EBS) station for the Shoreham emergency plan, and 2) a letter from the Nassau County Chapter of the American Red Cross (ARC) to LILC0 denying that there is any agreement between LILC0 and ARC pertaining to emergency response for Shoreham.
These developments, intervenors allege, show that the LILC0 plan is deficient because there are no viable provisions for activating tone alert radios or for broadcasting EBS messages, there is no indication of the willingness or ability of ARC to provide assistance "as required under the plan," and there are no congregate care facilities due to ARC's " inability and refusal to agree, identify, designate, open, or 8706190070 870611 7
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. operate such centers in a Shoreham emergency.". Motion at 1-2 L'
(November 10,1986). While maintaining that there are existing I
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contentions under which these issues could be litigated, intervenors 1
submit proposed contentions with their motion so as to focus any further hearings. On the proper ground that it lacked jurisdiction to reopen as requested, the Licensing Board dismissed intervenors' request.I and intervenors now seek relief directly from the Consnission.2 The Commission's Reopening Standards The Commission has evaluated the motion under 10 CFR 2.734,' which-provides:
(a) A motion to reopen a closed record to consider additional evidence will not be granted unless the following criteria are satisfied:
(1)Themotionmustbetimely,exceptthatan-exceptionally 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 environmental issue.
(3) The motion must demonstrate that a materially different result would be or would have been likely had the newly proffered evidence been considered initially.
i IBoth the Licensing and Appeal Boards have already completed hearings and rendered decisions on the issues for which reopening is sought.
2The Licensing Board dismissed for lack of jurisdiction after the parties had submitted their pleadings on the motion. The parties agreed that the pleadings submitted initially to the Licensing Board represented their views sufficiently to avoid the necessity for new filings. The Commission endorsed this approach in a November 19, 1986 Order, permitting bu' not requiring new papers. Only LILCO submitted new material (in a brief " Answer...") (Nov. 21,1986). Thus unless otherwise noted, the pleadings referenced are those initially filed with the Licensing Board.
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i (b)Themotionmustbeaccompaniedbyoneormoreaffidavits which set forth the factual and/or technical bases for the movant's claim that the criteria of paragraph (a) of this i
section have been satisfied. Affidavits must be given by i
competent individuals with knowledge of the facts alleged, or
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by experts in the disciplines appropriate to the i'ssues raised.
j Evidence contained in affidavits must meet the admissibility standards set forth in i 2.743(c).
Each'of the criteria must
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i be separately addressed, with a specific explanation of why it has been met. Where multiple allegations are involved, the movant must identify with particularity each issue it seeks to litigate and specify the factual and/or technical bases which it believes support the claim that this issue meets the criteria in paragraph (a) of this section.
4 (d) A motion to reopen which relates to a contention not previously in controversy among the parties must also satisfy the i
requirements for nontimely contentions in 0 2.714(a)(1)(1-v).
We conclude, as to WALK radio, that the motion satisfies these standards and that, as to the other issues, it does not.3 a
WALK Radio The staff and LILC0 agree that the withdrawel of WALK radio does justify reopening the record, but submit that the admission of r
3 In assessing the motion, we also considered a recent FEMA evaluation of LILCO's plan. On December 30, 1986, FEMA delivered to the NRC's Executive Director for Operations an assessment by its Regional Advisory Committee (RAC) of LILC0's Plan. Letter from Dave McLoughlin (FEMA),toVictorStello(NRC).
Based on the letters from WALK radio and the ARC, FEMA concluded that there were several inadequacies in the Plan. As to the latter, the RAC concluded that the ARC letter " raises many questions concerning the participation of the Red Cross in a Shoreham incident...."
Id., Attachment 1 at 10.
The RAC also found
" unworkable" the lack of Tetters of agreement between the ARC and shelter owners.
Id.
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i contentions should await LILCO's proposal of plan modifications to deal with.the WALK situation.
Staff Response at 6, note 2; LILCO Response at 4.
LILC0 opposes the remainder of the. motion, while staff supports the remainder.
' We grant the request to reopen on this matter:
intervenors' request was timely, addresses a significant safety issue, demonstrates that a materially different result would have been likely, and was supported by an appropriate affidavit. However, we believe that 'it's I
premature to admit contentions on the EBS situation until.LILC0 provides i
updated information on public notification procedures which may elicit additional' contentions. We see no gain to going through-the contention admission ' process twice rather than once.
American Red Cross 1 Under LILC0's plan, the Nassau County Chapter of the American Red Cross is relied upon to provide substantial assistance in caring for evacuees, and is to identify, open and operate congregate care centers (shelters)forevacuees.
Intervenors' Contention 24.P. alleged that LILCO lacked an agreement with ARC to assure the provision of these services. Based on a 19841stter from the Chapter's then-Chairman to l'
the effect that there was such an agreement, the Licensing Board found for LILCO. PID, 22 NRC at 416-17, 420.
In an August 21, 1986 letter to LILCO, the present Chapter Chairman of'the ARC made clear that there's no ARC " agreement"'with the utility.
Rather, he characterized the 1984 ARC letter as a " statement of the policy of the Red Cross," as " mandated by the charter granted to the Red
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Cross by the U.S. Congress." LetterfromWalterOsterbrink(ARC)to-ElaineD. Robinson (LILCO). This letter, intervenors' assert, mandates a reopening of the record on Contention 24.P..The staff agrees, and LILCO opposes.
The' staff argues,that:
[t]he letter disavowing that such an agreement exists might be significant and might lead to a.different [ Licensing Board
' decision], lia't the ARC still has' an obligation, under its.
if the ARC did not in the same letter seem to.-
recognize t policies.and.under~ its charter from Congress, to provide aid ~
to LILCO in the event of an emergency at Shoreham. The '
meaning of the ARC letter, and just what aid the ARC would provide in the. event.of a Shoreham emergency, is far from clear..... Because... hearings are necessary on other matters
. raised by the letter in regard to whether the ARC-can provide an' adequate number of ~ [ shelters), this matter of the ARC's
' obligations in a Shoreham emergency should be consolidated-with those'other matters.
Staff Response at 7 (emphasis in' original)..The staff also notes that it may be possible to decide on the basis of documentary evidence ---
without an evidentiary hearing -- whether ARC's obligations under its policies are any different from its obligations under'the purported.
agreement.
Id_. at 8, n.4.
LILC0 argues, in contrast, that this issue fails to meet two of the three Commission criteria for reopening.. First, LILC0 argues, the issue-isn't a "significant safety or environmental issue."
Second, the new i letter doesn't " demonstrate that a materially different result would be or would have been likely had the newly proffered evidence been considered initially." Thus, according to LILC0, the ARC's "' statement of policy'... is at least as good as an agreement [because] the role
- described in the earlier letter is_ ' mandated by the charter granted to the Red Cross by the U.S. Congress.'" Answer at 5.
Further, says L
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LILCO, the proffered contention on this issue fails to satisfy the standards for late-filed contentions because it alleges the absence of an agreement where there's a " policy" as good as an agreement, thus j
raising no significant safety issue.
Id.
The critical questions here are whether the new letter raises j
a significant safety issue and is likely to lead to a differer.t result.
The staff observed that the ARC letter "might be significant and might i
lead to a different result i_f, the ARC did not in the same letter seem to f
recognize that the ARC still has an obligation, under its policies and l
under its charter from Congress, to provide aid to LILCO." But, staff i
adds, the letter is "far from clear," and FEMA's December 30, 1986 assessment states that the letter " raises many questions concerning [the Id., Attachment 1, at 10.
ARC's] participation in a Shoreham incident."
d We find no implication in the letter that for Shoreham, ARC is disavowing its general policy. The Licensing Board found the earlier letter to provide reasonable assurance that the Red Cross will perform the duties which LILC0 relies upon the Red Cross to perform in the Shoreham emergency plan.
22 NRC at 420. The new letter does not appear to erode this reasonable assurance finding.
Indeed, the ARC letter f
states that the earlier letter relied upon by the Board was "a statement 1
of the policy of the Red Cross in am radiological, or natural 1
disaster." Emphasis added. The apparent purpose of Mr. Osterbrink's j
i letter is to make clear that ARC neither " supports [n]or opposes the opening'of Shoreham."
j As we noted above, the Red Cross letter led FEMA to find the Plan inadequate in certain aspects. While we believe that FEMA's assessment
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7-is entitled to our deference, at least initially, for the reasons given above we are unpersuaded that the lack of an agreement in this instance would lead to a different result.
Since'intervenors have failed to carry their burden as movants to show'that_ reopening the record is likely to lead to a materially different result, we deny the motion to reopen on this issue.
Congregate Care Facilities Intervenors claim that the'recent ARC letter places in doubt the Licensing Board's findings concerning adequate shelter for evacuees.
Motion at 11-12, citing PID, 22 NRC at 422-23.
Intervenors had argued to the Licensing Board that the agreements for shelters between ARC and other organizations (generally churches and schools) were revocable at will, did not explicitly provide for the use of those shelters in a Shoreham emergency, and that the owners of the facilities would not agree to such use.
I Based in part on the letter from the ARC stating that there was an agreement with LILC0 for ARC to provide shelters, and based upon an attached list of facilities, the Board found that ARC's agreements with LILCO and with other organizations provided reasonable assurance that ARC would perform adequately the duties expected of it under the plan, including the securing of sufficient space for shelters. The Licensing Board didn't disagree with intervenors' assertions that the agreements were revocable at will and that they didn't explicitly provide for use
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t of the facilities in a Shoreham emergency. However, the Board noted that ARC is experienced in locating shelters using established criteria andprocedures,andthat"[i]ffacilitiesbecomeunavailabletheRed j
Cross finds other suitable facilities." PID, 22 NRC at 421. The Board
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viewd the identification of specific facilities as a " ministerial duty" not requiring formal adjudicatory procedures. See id. at 423.
i Intervenors argue that the recent ARC letter invalidates the Board's findings, asserting that:
(1)theRedCrosshasnotagreedtoidentify, designate,open, or operate congregate care centers in the event of a Shoreham J
emergency; and (2) in any event, the facilities to which LILCO
-- and [the] Board -- previously assumed evacuees could and would be sent in the event of a Shoreham accident, are not available for that purpose.
Motion at 12-13.
The staff agrees with intervenors that the record should be 1
reopened on this issue, hinging its agreement on the statement in the latest ARC letter that a "significant" number of facilities would be unavailable,thus"creat[ing]anissueas.towhethertheextentof withdrawals causes the ARC, on whose representations the Board relied, to believe that it cannot implement the LILCO plan." Staff Reply at 8,
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note 5.
LILCO, in contrast, argues that the letters from the facility i
owners are old news, having been argued about to the Board on many occasions since early 1985, to the Appeal Board since early 1986, and to the Commission shortly thereafter. Further, LILC0 argues, the Board relied not on specific facilities, but on "the standards the Red Cross uses to choose" shelters, the Board having directed the staff to verify
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3 that agreements for the facilities are up to date, a ministerial act not requiring an evidentiary hearing. LILC0's Answer at 6.
I While FEMA found " unworkable" the lack of agreements with shelter owners, we believe that several factors argue against. reopening. First, the Licensing Board seems to have been well aware of the dispute over shelter availability at the time it issued its PID. Second, while intervenors argue that 32 letters from facility owners attached to Mr.
~0sterbrink's letter support the request to reopen, adding that the letters also were attached to a Septenber 26, 1986 limited appearance statement, intervenors fail to note that most of these were bound into the transcript of the proceeding on June 25, 1985, two months prior to the Licensing Board's issuance of its PID.4 Thus we find that the bulk of the evidence presented in the motion to reopen is not, in fact, new I
evidence. Rather, it was available to the Licensing Board when'that Board rendered its PID.
It also appears that the Licensing Board was not relying specifically on listed facilities, but rather on the standards used by the Red Cross to choose and locate facilities, and on the ARC's past success in locating facilities. See PID, 22 NRC at 423.
The new ARC letter doesn't weaken this basis for the Board's decision, and therefore the motion to reopen does not demonstrate that a materially different result would have been reached by the Licensing Board, even assuming arguendo that the information is new.
4See Transcript at 15,986.
Intervenors should have noted their sponsorship of these letters in 1985. While intervenors don't claim that the letters are new, that is the implication of the motion.
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Conclusion 4
The motion'to reopen is granted as to WALK radio. As to agreements with the ARC and shelter owners, it is denied. We remand to the Licensing Board on the reopened issue, with the Board to admit "new" contentions only to the extent they assist in focusing further the litigation on earlier-admitted issues, and only after LILCO provides-updated information on public notification procedures.
Comissioner Asselstine approved in part and disapproved in part.
His separate views are attached.
It is so ORDERED.
For the Commission E
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SAMUEL J.
HILK Secretary of th Commission q
Dated at Washington, D.C.
this day of June,1987.
- Commissioner Bernthal was not present when this order was affirmed.
If he had been present he would have approved it.
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SEPARATE VIEWS OF COMMISSIONER'ASSELSTINE I: agree with the. decision to reopen the record on the WALK' radio issue.
o However, I would also have reopened the record on the other-two issues as
. well.
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