ML20215M256
| ML20215M256 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 10/27/1986 |
| From: | Christman J HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#486-1299 OL-3, NUDOCS 8610300129 | |
| Download: ML20215M256 (13) | |
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LILCO, October 27,1986 8
UNITED STATES OF AMERICA 00CHETED NUCLEAR REGULATORY COMMISSION usnac
'86 0CT 29 A10:59 Before the Atomic Safety and Licensing Board cFrr ~
In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station, )
Unit 1) )
LILCO's Answer To Suffolk County, State of New York and Town of Southampton, Motion to Reopen Record of October 15,1986
. On October 15, 1986, the Intervenors in this case filed their "Suffolk County, State of New York and Town of Southampton Motion to Reopen Record"(hereinaf ter
" Motion"). The Motion asks that the Board reopen the evidentiary record to consider new evidence about three issues:
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- 1. The withdrawal of WALK Radio as the primary emer-gency broadcast system (EBS) station,
- 2. The lack of an agreement with the American Red
, Cross, and
- 3. The " lack of congregate care center facilities."
The Intervenors argue that reopening is called for under the recently codified criteria of 10 C.F.R. S 2.734, 51 Fed. Reg. 19,535,19,539 col. 3 (May 30,1986), and,in the alter-native, that late-filed contentions should be admitted unoer 10 C.F.R. S 2.714(a)(1). For the reasons set out below, LILCO generally opposes the Intervenors' Motion. LILCO ,
f agrees that the issue of the EBS station must be addressed further; but it is premature to admit a contention at this point until LILCO has in place substitute arrangements.
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a p-i L Licensing Board Jurisdiction The Intervenors' Motion is defective, first, because it is addressed to the wrong
, foruct. There are currently no issues before this Licensing Board about radio station l WALK or the EBS system, about the role of the Red Cross, or about congregate care
- centers.M The issues on those subjects have now passed Appeal Board review, and the Commission has declined to review them further. Accordingly, the Motion should be addressed to the Commission, not the Licensing Board. LILCO will assume that the Commission, not the Licensing Board, will address the Motion on its merits.
I II. WALK Radio The Intervenors first move to reopen the issue of the EBS radio station, based on 1
a letter of August 8,1986, from the President and General Manager of WALK stating that the radio station finds it "necessary at this time to withdraw from participation in the Shoreham Emergency Response Plan." Letter from Alan S. Beck to Ira Freilicher, August 8, 1986.2/
1/ There are related contentions in the exercise litigation. Contention Ex 16.N says that congregate care centers did not participate sufficiently in the exercise. Ex 16.C i says that WALK did not participate. And Ex.18.C(lii) says that participation by Red Cross personnel was inadequate. None of the new matters raised by the Motion, howev- ,
er, has anything to do with the exercise.
2/ LILCO is compelled to correct the record on a collateral issue involving its noti-fication of radio station WALK's withdrawal from its role as primary station in the spe-cial EBS system set up for Shoreham. While not material to the arguments in their Motion, an attached affidavit from Michael S. Miller, Esq., one of Intervenors' counsel, insinuates that LILCO was definitively notified by WALK of a final decision to with-draw on or about August 8, and that LILCO concealed that information for over a month, until mid-September. That insinuation is false, and Intervenors can hardly help but know it is false. Both telephone and face-to-face discussions occurred between LILCO and WALK between August 13 (when LILCO received an unanticipated letter dated August 8 from Alan Beck, WALK's general manager) and September 16 and 17 (when LILCO was definitively informed by WA LK by telephone and in writing of its withdrawal). LILCO did not itself receive a copy of Mr. Beck's September 12 letter to Judge Margulies until it was served by the NRC's Docketing and Service Section on September 23. Intervenors were informed in detail of the chronology of events con-cerning these matters on September 23 in a letter to Mr. Brown, one of Mr. Miller's partners, from Donald P. Irwin, one of counsel for LILCO. A copy of the letter is at-tached to this Answer.
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LILCO agrees with Intervenors that the record needs to be reopened on this sub-ject. But LILCO does not agree that the time is ripe for the admission of a new conten-tion, nor that evidentiary hearings will be necessary.
In the first place, the pre-emergency withdrawal of WALK would not present a health and safety problem in a real emergency. LILCO does not understand the Inter-venors or anyone else to be claiming that WALK, or any radio station on Long Island, would decline to transmit safety information to the public in a real emergency.
In the second place, there is no federal regtdrement that there be an agreement with the EBS radio station. There used to be a federal guideline to that effect. In FEMA-43," Standard Guide For the Evaluation of Alert and Notification Systems for Nu-clear Power Plants"(September 1983), the Acceptance Criteria for planning standard E, relating to procedures for notification and instruction to the public, included a criterion that there be "some form of agreement":
An emergency plan will typically be acceptable under this evaluation criterion provided that it clearly describes a sys-tem of disseminating information that meets the following criteria:
- 3. References or includes some form of agreement, available for review, which states the station's or broadcast system's willingness to participate in the public notification process.
FEMA-43, at E-2 (September 1983) (emphasis added). In 1985, however, FEMA-REP-10 superseded FEMA-43. FEMA-REP-10 changed the acceptance criterion to specify, not some form of agreement, but rather "some form of documentation":
An acceptable emergency plan under Evaluation Criterion E.5 should describe a system of disseminating information to the public that meets the following criteria:
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- 3. References or includes some form of documentation, available for review, that states the station's or broadcast system's ability to participate in the public noti-fication process.
FEMA-REP-10, Guide for Evaluation of Alert and Notification Systems for Nuclear Power Plants, at E-2 (November 1985) (emphasis added).
This revision was prompted by FEMA's recognition, and acceptance, of the fact that stations able to participate effectively in an emergency might not be willing to agree in advance to do so, as FEMA made clear in its Notice of Availability of FEMA-REP-10:
One utility industry group also noted that since individual radio station participation in the EBS is voluntary, it may not be possible to obtain the formal participation agreements re-quired in FEMA-43.
In response to these comments, FEMA has . . . re- <
placed the requirement for written agreements that individu-al broadcasting stations will participate in the EBS with a re-quirement for documentation indicating that they are able to participate in the EBS.
50 Fed. Reg. 43,084, 43,085 col.1 (Oct. 23,1985).
It is still up to LILCO to explain to the Commission, now that WALK has withdrawn from the emergency plan, what form of " documentation" LILCO relles on.
This explanation will be forthcoming. In the meantime, it is premature to admit a con-tention, such as the one proffered by the Intervenors, about the EBS system. Accord-ingly, LILCO agrees that the Commission (since the matter appears to be beyond the ju-risdiction of the Licensing Board) should reopen the record on the question of the EBS system, but without deciding yet whether an additional contention is warranted or fur-ther evidence is necessary.
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III. The Red Cross The second issue that the Intervenors wish to reopen is the role of the American Red Cross. The Motion is based on the letter of August 21,1986, from the Chapter Chairman of the Nassau County Chapter stating that the letter from the Red Cross of July 25,1984, on which LILCO has relied is not an " agreement" but " simply a statement l of the policy of the Red Cross in any radiological, or natural disaster." Letter from ,
Walter Oberstebrink to Elaine D. Robertson, August 21,1986, at 1.
This development falls to meet two of the three criteria for reopening the record, codified at 51 Fed. Reg. 19,535,19,539 col. 3 (May 30,1986). First, it is not a "significant safety or environmental issue." Second, it is not enough to " demonstrate that a materially different result would be or would have been likely had the newly proffered evidence been considered initially."E The Red Cross letter states that the letter that LILCO has regarded as an " agreement" is instead a " statement of policy."
From LILCO's standpoint, a " statement of policy" of the Red Cross is at least as good as an agreement.N The August 21 letter says on its face that the role described in the earlier letter is " mandated by the charter granted to the Red Cross by the U.S. Con-gress."
! As for the standards for late-filed contentions, the Intervenors fall to meet them
! too. The principal reason is that, as pointed out above, the "new evidence" is immateri-al to any significant issue of public health and safety. A contention that says (as the In-
. tervenors' does) that there is no " agreement" with the Red Cross, when there is a Red l
3/ It is not enough to show a mere possibility of a different result; a likelihood is necessary. 51 Fed. Reg. at 19,537 col.1. Demonstrating this is a " heavy burden." Id. at 19,538 col. 2.
4/ The Newsday article of September 30,1986, adds no information whatsoever to the Red Cross letter. The headline (" Red Cross: We can't help on Shoreham") is the words of a journalist, not of the Red Cross, and finds no support either in the letter or
, in the text of the newspaper article.
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Cross policy, mandated by its charter, that has precisely the same effect, is not an ad-l missible contention. I IV. Congregate Care Centers LILCO also opposes the Intervenors' motion to reopen the issue of congregate care centers. Many times in this proceeding the Intervenors have demanded a hearing based on the fact that a number of facilities on the Red Cross's list of congregate care centers have written to the NRC stating that they do not want to be a part of an emer-gency plan for Shoreham.EI The latest Motion simply repeats what has been said be-fore.
As with the Red Cross issue, the fact that certain facilities have disclaimed the LILCO Plan does not raise a significant safety or environmental issue or demonstrate that a materially different result would have been likely had it been considered ini-tially. The reason is that the NRC has already confronted this issue and resolved it.
Having approved the standards the Red Cross uses to choose congregate care facilities, the Licensing Board directed the NRC Staff to verify that agreements for congregate care centers are up-to-date. LBP-85-31,22 NRC 410,423 (1985).E This is a ministerial 5/ Every NRC judge who has sat on the relocation centers issue har been aware that some of the facilities on the Red Cross list of congregate care centers are unwilling to be a part of the LILCO emergency plan. Letters to this effect from several school dis-tricts and churches are a matter of common knowledge. The Intervenors argued about these letters in pleadings to the Licensing Board of March 1, March 20, and May 17, 1985. They tried to raise the issue again at the hearing in June 1985, and 32 letters were bound into the transcript. Transcript of June 25,1985, ff. Tr.15,986. The Inter-venors again argued the issue in their proposed findings of July 15, 1986. The ASLB was fully aware of the letters but declined to reopen the record.
The Intervenors also raised this issue in briefs to the Appeal Board on November 6,1985 (at 34, 45-46, 52, 53-57) and January 6,1986 (at 2-4). The Appeal Board also de-clined to reopen the issue. ALAB-832,23 NRC at 162.
The Intervenors then argued the issue to the Commission. Suffolk County, State of New York, and Town of Southampton Petition for Review of ALAB-832 (Apr.15, 1986), at 11-14. The Commission declined to reopen the issue.
S/ Intervenors emphasize the facilities that have been withdrawn but do not men-tion that congregate care facilities for some 18,000 people have been added since the (footnote continued)
6 matter than can easily be handled by the NRC Staff,E and this solution to the problem has passed Appeal Board review and been declined review by the Commission. Thus this issue does not meet the criteria for reopening the record.
As for the late-filed contention about congregate care centers, it also does not meet the Commission's requirements. In particular, there is no " good cause" for filing it now, when the Intervenors have been pressing the issue for almost two years. The fact is that there is nothing new that would justify a new contention. The Intervenors rely on the limited appearance of Dr. Howard Koenig, Superintendent of Schools of the East Meadow Union Free School District, on September 26,1986. See Motion at 13; Tr.
16,999-17,009 (Koenig limited appearance). But Dr. Koenig merely repeated arguments that the NRC has heard many times before, and appended to his statement " letters from 34 facility owners which were submitted to you in 1985." Tr.17,003 (Koenig limit-ed appearance). Likewise the Red Cross letter simply acknowledges what everyone al-ready knew.
Moreover, the contention if admitted would certainly " broaden the issues" and
" delay the proceeding," since it raises a problem that the Licensing Board has already confronted and solved. In short, the Intervenors have failed to meet the standards for admitting late contentions.
(footnote continued) hearing on this issue. As the Licensing Board's resolution of this issue recognizes, con- ,
gregate care centers may come and go, and a change in the roster of such facilities l does not call for a public hearing. ,
7/ Post-hearing verification by the staff of emergency planning measures is proper l in such circumstances. See Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), ALAB-836,23 NRC 479,495,512 (1986).
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V. Conclusion For reasons stated above, the Commission should decline to reopen the record on congregate care centers and on the role of the American Red Cross. The Commission should hold the record on radio station WALK open, however, awaiting a further filing from LILCO to explain precisely how it plans to communicate with the public during a radiological emergency.
Respectfully submitted, Donald P. Irwir James N. Chris(tman Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: October 27,1986
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8357 Herbert H. Brown, Esq.
Kirkpatrick & Lockhart 1900 M Street, N.W. BY TELECOPIER Eighth Floor Washington, DC 20036
Dear Herb:
As to your letters of the 17th and 22nd, in my judgment there are no issues concerning WALK's withdrawal other than those relating to (1) WALK's replacement in LILCO's offsite plan (which will be forthcoming) or (2) potentially improper interference with LILCO's business relationship with WALK if any evidence thereof is uncovered. Perhaps you can assist our exploration of the latter. Some background is useful.
LILCO received an unsolicited initial letter on about August 13 from Alan S. Beck, the owner of WALK, referring to "the ruling of the Supreme Court of the State of New York (Cuomo, Suffolk, Southampton v. LILCO./ Judge Geiler)" and stating that "on the advice of counsel" he "found it necessary at this time to with-draw" from WALK's EBS agreement with LILCO. Immediately after receipt of the letter, LILCO contacted Mr. Beck to set up a meet-ing to discuss the reasons for WALK's apparent decision and to inquire whether Mr. Beck would reconsider the letter. At the meeting Mr. Beck agreed to reconsider the letter but stated that
, he had to discuss the matter with his attorneys, whom he would l not name. In early September LILCO, having heard nothing further I
from Mr. Beck, requested his final word. LILCO received it by telephone on September 16; it was parallelled by a letter from Mr. Beck also dated the 16th but not received by LILCO until the
, 17th. That letter stated that while Mr. Beck " appreciate [d] the l points you raised in our recent discussions, at this time we must
! stand by our position as stated." As you know, LILCO notified l the Commission and all parties by Federal Express on the 16th, l
1 even before receiving Mr. Beck's final determination in writing.
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D Huwrow 8e WILLIAus Herbert H. Brown, Esq. l September 23, 1986 Page 2 I received your initial letter by telecopier, of course, around the middle of the day on the 17th, apparently within a couple of hours of the arrival of your Federal Express notifica-tion.
That is the correspondence concerning WALK's withdrawal.
There is apparently other correspondence from a couple of years ago concerning the backup generator, worth about $25,000, which LILCO supplied to WALK at the station's request in order to increase that station's reliability as an EBS station, but I am" not in possession of it.
I have no idea what Mr. Beck was referring to in his refer-ence to the " advice of counsel" which was provided him in connec-tion with his decision, and thus cannot enlighten you on that score. I wish I could, since it strikes me as strange legal advice given the fact that Judge Geiler's decision is more than a year and a half old and its holding has been widely publicized during the entire period. Yet not until the Commission in CLI-86-13 provided a legal rationale that eliminates any poten-tial jeopardy from participation in the LILCO plan (since WALK could now presume conclusively that New York State and Suffolk County would lend best-efforts assistance) did WALK withdraw on the advice of unnamed counsel.
That background indicates to me that if anything further is to be known about the current situation, it must include knowl-edge of why WALK acted as it did at this time. Accordingly, I request your help. I would appreciate your providing me with the following information, which I realize is perhaps sensitive, but no more than the situation itself:
- 1. Are you aware of whether any person other than LILCO has ever contacted Mr. Beck or other representatives of WALK concern-ing the station's participation in the Shoreham EBS network, spe-cifically, with reference to a proposal or suggestion that he withdraw from it and reasons why?
- 2. If so, I would appreciate your telling me the identity of each such person.
- 3. Mr. Beck refers to the " advice of counsel." Do you know any attorney who may have provided legal advice regarding WALK's withdrawal, including but not limited to a reference to Judge Geiler's decision?
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HUNTON dc WILLIAMS Herbert H. Brown, Esq.
September 23, 1986 Page 3 1
- 4. If so, I would appreciate your telling me the identity i of each such attorney.
- 5. Are you aware of any person other than an attorney who may have provided Mr. Beck with the suggestion that he refer in his letter to Judge Geiler's decision and a reference to " advice of counsel"?
- 6. If so, I would appreciate your telling me the identity of each such person.
- 7. When did you first learn that WALK had withdrawn (and, if the answer is any different, was contemplating withdrawal) from the Shoreham EBS network? How did you learn?
I hope you can help me with these questions. Whether or not one likes CLI-86-13, it seems clear to me that in light of that decision Mr. Beck's decision was premised on faulty legal advice and it does not enhance the quality of debate on important issues when decisions are made on such flawed premises.
Sincerely yours, b 4 Donald P. Irwin 91/730 l
a i LILCO, October 27,1986 DOLKETEP UwC CERTIFICATE OF SERVICE '86 0CT 29 A11:00 0FF C L- *-
In the Matter of $$lkc0 LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
Docket No. 50-322-OL-3 I hereby certify that copies of LILCO's Answer to Suffolk County, State of New York, and Town of Southampton Motion to ROopen Record of October 15,1986 were served this date upon the following by first-class mail, postage prepaid.
Lando W. Zech, Jr., Chairman Alan S. Rosenthal, Esq., Chairman U.S. Nuclear Regulatory Commission Atomic Safety and Licensing 1717 H Street, N.W. Appeal Board Washington, DC 20555 U.S. Nuclear Regulatory Commission Fif th Floor (North Tower) .
Commissioner Thomas M. Roberts East-West Towers U.S. Nuclear Regulatory Commission 4350 East-West Highway 1717 H Street, N.W. Bethesda, MD 20814 Washington, DC 20555 Gary J. Edles, Esq.
Commissioner James K. Asselstine Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Appeal Board 1717 H Street, N.W. U.S. Nuclear Regulatory Commission Washington, DC 20555 Fif th Floor (North Tower)
East-West Towers Commissioner Frederick M. Bernthal 4350 East-West Highway U.S. Nuclear Regulatory Commission Bethesda, MD 20814 1717 H Street, N.W.
l Washington, DC 20555 Dr. Howard A. Wilber l Atomic Safety and Licensing l Commissioner Kenneth M. Carr Appeal Board i
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission
! 1717 H Street, N.W. Fif th Floor (North Tower) -
! Washington, DC 20555 East-West Towers 4350 East-West Highway -
William C. Parler, Esq. Bethesda, MD 20814 General Counsel i
U.S. Nuclear Regulatory Commission 1717 H Street, N.W.
Washington, DC 20555 l
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John H. Frye, III, Chairman Atomie Safety and Licensing Atomic Safety and Licensing Board Panel Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 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. Oscar H. Paris 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. Lawrence Coe Lanpher, Esq.
Bethesda, MD 20814 Karla J. Letsche, Esq.
Kirkpatrick & Lockhart Mr. Fred 2 rick J. Shon Eighth Floor Atomic Safety and Licensing 1900 M Street, N.W.
Board Washington, DC 20036 U.S. Nuclear Regulatory Commission East-West Towers, Rm. 430 Fabian G. Palomino, Esq.
4350 East-West Hwy. Special Counsel to the Governor Bethesda, MD 20814 Executive Chamber Room 229 Morton B. Margulies, Chairman State Capitol Atomic Safety and Licensing Albany, New York 12224 Board U.S. Nuclear Regulatory Commission Mary Gundrum, Esq.
East-West Towers, Rm. 427 Assistant Attorney General 4350 East-West Hwy. 2 World Trade Center Bethesda, MD 20814 Room 4614 New York, New York 10047 Dr. Jerry R. Kline Atomic Safety and Licensing Spence W. Perry, Esq.
Board William E. Cumming, Esq.
U.S. Nuclear Regulatory Commission Federal Emergency Management East-West Towers, Rm. 430 Agency 4350 East-West Hwy. 500 C Street, S.W., Room 840 Bethesda, MD 20814 Washington, DC 20472 Secretary of the Commission Mr. Philip McIntire Attention Docketing and Service Federal Emergency Management l
Section Agency U.S. Nuclear Regulatory Commission 26 Federal Plaza 1717 H Street, N.W. New York, New York 10278 Washington, DC 20555 Mr. Jay Dunkleberger Atomic Safety and Licensing New York State Energy Office Appeal Board Panel Agency Building 2 U.S. Nuclear Regulatory Commission Empire State Plaza Washington, DC 20555 Albany, New York 12223
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Stephen B. Latham, Esq. Gerald C. Crotty, Esq.
Twomey, Latham & Shea Counsel to the Governor 33 West Second Street Executive Chamber P.O. Box 298 State Capitol Riverhead, New York 11901 Albany, New York 12224 Jonathan D. Feinberg, Esq. Martin Bradley Ashare, Esq.
New York State Department of Eugene R. Kelly, Esq.
Public Service, Staff Counsel Suffolk County Attorney Three Rockefeller Plaza H. Lee Dennison Building Albany, New York 12223 Veterans Memorial Highway Hauppauge, New York 11787 Ms. Nora Bredes Executive Coordinator Dr. Monroe Schneider Shoreham Opponents' Coalition North Shore Committee 195 East Main Street P.O. Box 231 Smithtown, New York 11787 Wading River, NY 11792 y\
/ James N. Christ nan Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: October 27,1986
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