ML20215K688

Opposition to Suffolk County,State of Ny & Town of Southampton 861008 Request That ASLB Admit Four Emergency Planning Contentions by Am D'Amato as Adjunct to Intevenors Contentions or Sua Sponte Issues.W/Certificate of Svc

ML20215K688
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	10/20/1986
From:	Mccleskey K HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	Atomic Safety and Licensing Board Panel
References
CON-#486-1264 OL-5, NUDOCS 8610280260
Download: ML20215K688 (11)

Text

my UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION DOCKETED USNRC Before the Atomic Safety and Licensing Boar 85 OCT 27 A10 :29 0FF!

In the Matter of ) DCC:n. i h6 o

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

) (EP Exercise)

(Shoreham Nuclear Power Station, )

Unit 1) )

LILCO'S OPPOSITION TO THE INTERVENORS' MOTION TO ADMIT CONTENTIONS SUBMITTED BY SENATOR D'AMATO On October 8,1986, Suffolk County, the State of New York, and the Town of Southampton (Intervenors) requested that the Board admit four emergency planning contentions submitted by Senator Alfonse M. D'Amato,1 either as an adjunct to the In-tervenors' contentions, or as issues taken sua sponte by the Board. The Intervenors' mo-tion should be denied, because (1) the issues raised by the contentions have alreacy been admitted for litigation, (2) the Intervenors' motion is untimely, and (3) these are not the sorts of issues appropriate for s_ua sponte review.

I. The Senator's Concerns Are Addressed by Contentions Already Admitted by This Board As the Intervenors note in their motion, the issues in each of the four conten-tions they seek to sponsor have already been raised in contentions timely proposed for litigation. These four contentions are therefore redundant and should not be admitted.

1/ The Senator submitted the contentions in a letter to Judge Margulies dated

! September 26,1986.

l pek 188eR 8t!8lh2 l G

Contention 1 alleges that the exercise does not meet NRC regulations because either (1) there is not a FEMA finding on the exercise or (2) the statements of former Regional Director Frank Petrone, that the exercise does not provide reasonable assur-ance, must serve as the FEMA finding. This contention merely repeats allegations contained in Contention Ex 19, which was admitted (for argument only) by the Board on October 3,1986. Contention Ex 19 provides as follows:

CONTENTION EX.19. The exercise demonstrated a funda-mental flaw in the LILCO Plan resulting from FEMA's inabili-ty to make a reasonable assurance finding in LILCO's favor regarding the implementability of the LILCO Plan. FEMA stated in advance of the exercise that it would not be able to make a favorable reasonable assurance finding based on the exercise results. See, el, Letter from Samuel W. Speck, FEMA, to William J. Dircks, NRC, October 29, 1985. After the exercise, FEMA reiterated this point. See, g, FEMA Report at ix. In fact, however, FEMA's former Region II Di-rector, Frank Petrone, stated on February 15, 1986, that a "no reasonable assurance" finding was necessary: "Since this Plan cannot be implemented without state and local government participation, we [ FEMA] cannot give reasonable assurance under NUREG 0654 that the public health and safety can be protected."

i The NRC's regulations require, as a prerequisite to licensing, that the NRC have and review FEMA " findings and determi-nations as to whether State and local emergency plans are ad-equate and whether there is reasonable assurance that they I can be implemented. . . ." 10 CFR S 50.47(a)(2) (emphasis added). The exercise results were so limited that FEMA was unable to make the required reasonable assurance finding.

Accordingly, the exercise confirmed a fundamental flaw in LILCO's Plan, b, that the Plan, as exercised, cannot provide a basis for a FEMA reasonable assurance finding. Thus, the exercise precludes the NRC from finding reasonable assur-ance that adequate protective measures can and will be taken in the event of a Shoreham accident, as required by 10 C.F.R.

S 50.47(a)(1).

This is precisely what Senator D'Amato's Contention 1 alleges, and the Intervenors con-cede as much in footnote 1 of their motion. Contention 1 is redundant to Contention Ex 19 and therefore should not be admitted.

e' Contention 2 suggests that "new information" about Chernobyl should be consid-ered by the Board in determining whether the " shadow phenomenon" would endanger the safety of people on Long Island in an evacuation. The Intervenors suggest that this contention could be considered in conjunction with Contention Ex 22, which alleges that the exercise was " premised upon certain assumptions, . . ., which conflict with es-tablished facts. . . ." But part F of Contention Ex 22, which suggests that in light of the Chernobyl accident, " shadow phenomenon" may be a safety problem, was not admitted by the Licensing Board for litigation.2/ The Board found that the substance of part F, that is, whether the public information program has been implemented as defined in the LILCO Plan in order ~to minimize " shadow phenomenon," will be litigated under Contentions Ex 38 and 39. Thus, the Intervenors in part are trying to raise an issue that has already been denied by the Licensing Board, because there is virtually no dis-tinction between the proposed Contention 2 and the denied Contention Ex 22.F.

To the extent that Contention 2 suggests that an EPZ beyond 10 miles is required or that an adjustment to the EPZ is necessary because of the effects of " shadow phe-nomenon," those issues have been taken up by the Commission in its September 19,1986 Order raising three issues on appeal from ALAB-832, 23 NRC 135 (1986),3/ and 2/ Only part A of Contention Ex 22 was admitted by the Licensing Board. See October 3,1986 Order at 14-15.

3/ Of the three questions, the two pertinent ones are whether:

1. the admission of Contention 22.B. impermissibly chal-lenges the generic rulemaking finding that a 10-mile EPZ will provide an adequate basis for satisf actory ad hoc emer-gency response beyond ten miles should this be required (s_ee 45 Fed. Reg. 55,406, col. 2 (August 19, 1980));

2. In the context of Contention 22.C: a) there is a logical connection between plume EPZ size and the ability to re-solve problems associated with possible spontaneous evacua-(footnote continued)

e A

therefore are not before this Board to be litigated again here. Finally, to the extent that Contention 2 raises issues about the adequacy of the LILCO Plan's public informa-J tion program and the likely response of Long Islanders based upon that program as it was exercised, the issues will be litigated under Contentions Ex 38 and 39.

r Contention 3 alleges, in essence, that the exercise cannot provide a basis for de-termining whether adequate protective measures can be taken for Shoreham because the exercise was limited in scope. Contentions Ex 15 and 16, already admitted by the

, Licensing Board (see October 3 Order at 11-12), address the scope of the exercise. The first sentence of Contention Ex 15 states that The scope of the February 13 exercise of the LILCO plan was so limited that it could not and did not yield valid or mean-

. ingful results on implementation capability as required by 10 i CFR S 50.47(a)(2), in that it did not include demonstrations or evaluations of major portions of the LILCO plan.

The subparts of Contention Ex 15 list numerous alleged deficiencies based upon ex-cluded parts of the LILCO Plan from the exercise. In addition, Contention Ex 16 al-leges that The scope of the February 13 exercise of the LILCO plan was so limited that it could not and did not yield valid or mean-ingful results regarding LILCO's capability to implement its plan, as required by 10 CFR S 50.47(a)(2), in that it did not in-clude demonstrations or evaluations of emergency response capabilities of many persons and entities relied upon to imple-ment the LILCO plan.

Together, Contentions Ex 15 and 16 provide ample opportunity for litigation of (continued from previous page) tion, and b) the regulations contemplate that the possibility of spontaneous evacuation is a " local condition" which should result in adjustments to an EPZ; Commission's September 19, 19.86 Order at 2.

l

2' whether the scope of the emergency planning exercise provides "a basis for determ-ining whether adequate protective measures can or will be taken" as alleged in Contention 3. To the extent that parts 1, 2, and 3 of Contention 3 allege that " shadow phenomenon" was not taken into account in the exercise, that issue will be litigated under Contentions Ex 38 and 39, as noted above in response to Contention 2, and is the subject of Commission review as a result of its September 19 Order. Therefore, there is no reason to admit Contention 3 in addition to the issues being litigated for the exer-cise.

Contention 4 challenges FEMA's evaluation of the February 13 exercise as "whol-ly inadequate." The Intervenors suggest that Contention 4 could be litigated in con-junction with Contention Ex 19. While it is difficult to know precisely from the lan-guage of Contention 4 how FEMA's evaluation of the February 13 exercise is allegedly "inadMuate," it appears that this contention raises the same issues admitted under Contention Ex 21. The first sentence of Contention Ex 21 says that FEMA had no basis or insufficient data to support its conclu-sion that certain exercise objectives identified in subparts A -

F below were met or were partly met during the exercise in that even with respect to the events and activities which FEMA did observe, the samples which FEMA reviewed were much too small to permit valid generalizations or to support FEMA's conclusions concerning these objectives.

Contention 4. like Contention Ex 21, challenges the basis of FEMA's evaluation of the exercise. The issue raised in Contention 4, therefore, will be fully alred in connection with Contention Ex 21.M There is no question but that the issues raised by the Contentions 1-4 which the l Intervenors now seek to " sponsor" have already been admitted for litigation by this 4/ Indeed, the Board found in its order ruling on the admissibility of contentions that "[t]he FEMA review is directly at issue in the proceeding." Order at 8.

Board. There is no need to burden this proceeding by adding the text of Contentions 1-4 to the already lengthy and detailed contentions previously admitted for litigation on the exercise. As the Board found in ruling upon the contentions previously submitted by the Intervenors, "[t}his proceeding, like any other, has no place for duplicative con-tentions, whether all of the repetitiveness occurs in the proposed contentions currently being filed or whether the contention now being filed repeats that which has previously been litigated." October 3 Order at 9.

II. Contentions 1-4 do not Meet the Criteria for Admission of Late-filed Contentions Under 10 C.F.R. S 2.714 (a), the Board is required to balance the following fac-tors to determine whether a new contention should be admitted:

1. good cause, if any, for failure to file on time;

2. the availability of other means whereby the petition-er's interest will be protected;

3. the extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record;

4. the extent to which the petitioner's interest will be represented by existing partics; and

5. the extent to which the petitioner's participation will broaden the issues or delay the proceeding.

Title 10 C.F.R. S 2.714(a)(1). As to the first factor, nowhere in their motion to admit Contentions 1-4 do the Intervenors offer a reason for their late submission of these contentions. None of the issues raised in these contentions depends on events occurring between the August i deadline for filing contentions and the October 8 motion in which the Intervenors requested the admission of Contentions 1-4. In addition, it appears from the text of Senator D'Amato's letter and the Intervenors' motion that Senator

_7_

i D'Amato does not ask to pursue the contentions himself before the Board. Consequent-ly, these contentions are untimely flied.M As to factors 2 through 4, all of the issues raised by the Senator's contention will be substantially available for review before this Board in its consideration of the Inter-venors' contentions. The Intervenors have zealously pursued the many contentions they have filed throughout the years of litigation in this proceeding, and there is no reason to believe that the issues raised in Contentions 1-4 will not be vigorously pursued by the Intervenors through litigation of their own contentions. Senator D'Amato does not al-lege either that his interests differ from those of the existing Intervenors or that his interests will not adequately be represented by them. And because it is the Intervenors who w'sh to sponsor these contentions, there can be no question that the record on these issues will be fully developed to the best of the Intervenors' ability, and their in-terests represented.

III. Contentions 1-4 Are Not Suitable for Sua Sponte Review The Intervenors ask this Board to take up Ccntentions 1-4 s_ua sponte. The Board's authority to raise issues sua sponte is provided in 10 C.F.R. S 2.760(a), which al-lows such action only af ter a determination that a " serious safety, environmental or common defense and security matter exists."

There is no automatic right to adjudicatory resolution of safety questions associ-ated with an operating license application, Cincinnati Gas & Electric Co. (Wm H.

Zimmer Nuclear Power Station), ALAB-305, 3 NRC 8 (1976), and the Licensing Board's i

5/ LILCO does not concede that even if Senator D'Amato were to decide to sponsor the four numbered contentions, they would be timely, since the c' tent: to "thich they relate could have all been set forth in contentions on August 1, and Senator D'Amato does not allege that they could not.

a 6'

su_a sconte authority should be used, sparingly. Consolidated Edison Co. (Indian Point, Units 1,2, and 3), ALAB-319,3 NRC 188,910 (1976). Serious safety matters justifying sua sponte action must be supported by specific facts. Se Texas Utilities Co.

(Comanche Peak Steam Electric Station, Units 1 and 2), CLI-81-24,14 NRC 614, 615 (1981). Thus, safety-related construction work has been raised sg sponte on more than one occasion. Duke Power Co. (Catawba Nuclear Station, Units 1 and 2). ALAB-813,22 NRC 59 (1985); Houston Lighting and Power Co. (South Texas Project, Units 1 and 2),

LBP-81-54,14 NRC 918 (1981). Similarly, in Zimmer, the Board raised very specific is-sues as to the safety of water-tight doors which leaked during pressure testing, certain electrical problems and the lack of stainless steel nuts and bolts in installation of a

" dragline." Cincinnati Gas & Electric Co. (Wm. H. Zimmer Nuclear Power Station, Unit 1), LBP-82-48,15 NRC 1549 (1982). S_ee also Texas Utilities Generating Co. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-83-60,18 NRC 672; LBP-83-43,18 ,

NRC 122; LBP-83-32,17 NRC 1164 (1983) (rather than admit s_u_a sponte emergency planning contentions on which intervenors had defaulted, Board requested limited in-formation from FEMA and Applicant).

Contentions 1-4 do not raise the sort of fact-specific problems suitable for su_a _

sponte review by the Licensing Board. Rather, Contentions 1-4 are general allegations about the emergency planning exercise for Shoreham and FEMA's review of that exer-cise. The contentions lack any basis for this Board independently to consider the issues raised in them. Further, there is simply no need for the Board to take up these conten-tions sua sponte, because the issues they raise are already being litigated in this pro-ceeding under other contentions.

1 l

CONCLUSION For the reasons stated above, LILCO requests that the Board deny the Interve-nors' motion to submit Contentions 1-4. LILCO requests that the denial be outright; there is no effect other than potential confusion associated with " subsuming" the lan-guage of a redundant contention within that of an already admitted one.

Respectfully submitted,

/

IDodald' . Irwin

/ ' "

N&/

Hathy .B. McCleskey / /

DATED: October 20,1986 Hunton & Williams 707 East Main Street P. O. Box 1535 Richmond, VA 23212 l

l l

LILCO, October 20,1986

}

00LKETEP CERTIFICATE OF SERVICE In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)0FFICE F :

00CKEiig_u.tbsi NICf Docket No. 50-322-OL-5 I hereby certify that copies of LILCO's Opposition to the Intervenors' Motion to Admit Contentions Submitted by Senator D'Amato were served this date upon the fol-lowing by first-class mail, postage prepaid.

Lando W. Zech, Jr., Chairman

• Morton B. Margulies, Chairman **

U.S. Nuclear Regulatory Commission Atomic Safety and Licensing 1717 H Street, N.W. Board Washington, D.C. 20555 U.S. Nuclear Regulatory Commission East-West Towers, Rm. 427 John H. Frye, III, Chairman 4350 East-West Hwy.

Atomic Safety and Licensing Bethesda, MD 20814 Board U.S. Nuclear Regulatory Commission Dr. Jerry R. Kline **

East-West Towers, Rm. 407 Atomic Safety and Licensing 4350 East-West Hwy. Board Bethesda, MD 20814 U.S. Nuclear Regulatory Commission East-West Towers, Rm. 430 Dr. Oscar H. Paris 4350 East-West Hwy.

Atomic Safety and Licensing Bethesda, MD 20814 Board U.S. Nuclear Regulatory Commission William C. Parler, Esq.

East-West Towers, Rm. 427 General Counsel

4350 East-West Hwy. U.S. Nuclear Regulatory Commission Bethesda, MD 20814 1717 H Street, N.W.

Washington, DC 20555 Mr. Frederick J. Shon Atomic Safety and Licensing Secretary of the Commission

' Board Attention Docketing and Service U.S. Nuclear Regulatory Commission Section

! East-West Towers, Rm. 430 U.S. Nuclear Regulatory Commission 4350 East-West Hwy. 1717 H Street, N.W.

Bethesda, MD 20814 Washington, D.C. 20555 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555

• Chairman Zech is being served with a courtesy copy because he was an addressee of Senator D'Am'ato's original letter.

1

" Judges Margulies and Kline are being served with a courtesy copy because they were addressees of Suffolk County's Motion.

3 s

6 Senator Alfonse M. D'Amato Stephen B. Latham, Esq.

United States Senate Twomey, Latham & Shea Washington, D.C. 20510 33 West Second Street P.O. Box 298 Bernard M. Bordenick, Esq. Riverhead, New York 11901 Oreste Russ Pirfo, Esq.

Edwin J. Reis, Esq. Mr. Philip McIntire U.S. Nuclear Regulatory Commission Federal Emergency Management 7735 Old Georgetown Road Agency (to mallroom) 26 Federal Plaza Bethesda, MD 20814 New York, New York 10278 Herbert H. Brown, Esq. Jonathan D. Feinberg, Esq.

Lawrence Coe Lanpher, Esq. New York State Department of Karla J. Letsche, Esq. Public Service, Staff Counsel Kirkpatrick & Lockhart Three Rockefeller Plaza Eighth Floor Albany, New York 12223 1900 M Street, N.W.

Washington, D.C. 20036 Ms. Nora Bredes Executive Coordinator Fabian G. Palomino, Esq. Shoreham Opponents' Coalition Spec:al Counsel to the Governor 195 East Main Street Executive Chamber Smithtown, New York 11787 Room 229 State Capitol Gerald C. Crotty, Esq.

Albany, New York 12224 Counsel to the Governor Executive Chamber Mary Gundrum, Esq. State Capitol Assistant Attorney General Albany, New York 12224 2 World Trade Center Room 4614 Martin Bradley Ashare, Esq.

New York, New York 10047 Eugene R. Kelly, Esq.

Suffolk County Attorney Spence W. Perry, Esq. H. Lee Dennison Building William E. Cumming, Esq. Veterans Memorial Highway Federal Emergency Management Hauppauge, New York 11787 Agency 500 C Street, S.W., Room 840 Dr. Monroe Schneider Washington, D.C. 20472 North Shore Committee P.O. Box 231 Mr. Jay Dunkleberger Wading River, NY 11792 New York State Energy Office Agency Building 2 Empire State Plaza p)

Albany, New York 12223 j Il' A / ~~L jff Kalhf'E.B Mc'Cle5ke9 Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: October 20,1986

- - - ., .- - . _-