ML20215M318

Memorandum & Order Denying Intervenors 861008 Motion to Admit Senator D'Amato 860926 Contentions Re Emergency Preparedness,Info from Chernobyl Accident & Inadequacies of 860213 Exercise Into Proceeding.Served on 861029

ML20215M318
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	10/28/1986
From:	Frye J, Paris O, Shon F Atomic Safety and Licensing Board Panel
To:	NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY
References
CON-#486-1291 86-533-01-OL, 86-533-1-OL, OL-5, NUDOCS 8610300161
Download: ML20215M318 (8)

Text

W' / 21/

U UNITED STATES OF AMERICA ushc NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD '86 0CT 29 P2:46 Before Administrative Judges 0FFE OT ' , >

00CXETug s y, g"r John H Frye, III, Chairman E uNo.

Dr. Oscar H. Paris Mr. Frederick J. Shon OERVED OCT 291986

)

In the Matter of ) Docket No. 50-322-OL-5

) (EP Exercise)

LONG ISLAND LIGHTING COMPANY )

) (ASLBP No. 86-533-01-0L)

(Shoreham Nuclear Power Station, )

Unit 1) ) October 28, 1986

)

MEMORANDUM AND ORDER (Ruling on Intervenors' Motion to Admit Contentions)

On September 26, as a follow-up to his oral limited appearance statement, United States Senator Alfonse M. D'Amato wrote to the Chairman of this Board to urge that four contentions be accepted for litigation. These contentions concern the nature and effect of FEMA's finding with respect to Shoreham emergency preparedness, the necessity to consider new information resulting from the Chernobyl accident, the alleged inadequacies of the February 13, 1986, exercise, and the alleged inadequacy of FEMA's evaluation of that exercise. Senator D'Amato i closes by asking that his four contentions be considered in the forthcoming hearing on the February 13 exercise and that ". . . we deal with the facts of this particular, unusual case."

8610300161 PDR 861028ADOCK PDR 05000322 C

D303 i

On October 8, the intervening governments (Suffolk County, New York State, and the Town of Southampton), noting that we had not addressed Senator D'Amato's contentions in our October 3 Prehearing Conference Order, moved that they be considered either as Board contentions or as adjuncts to the admitted contentions. The intervening governments assert that the contentions satisfy the admissibility and pleading requirements applicable to this phase of the proceeding. They further argue that rejection of the contentions will render the limited appearance provisions of 9 2.715 meaningless.

1 LILC0 opposes this motion , noting that the contentions do not meet the criteria for acceptance of tardy contentions stated in 10 C.F.R. %

2.714(a) or the requirements for raising sua sponte issues. Further, LILC0 maintains that contentions 1, 3, and 4 are redundant of certain admitted contentions.

2 Staff also opposes the motion . In its opposition, Staff reviews the requirements for the admission of contentions related to the February 13 exercise and summarizes them as follows:

In sum, the Intervenors' late-filed contentions can be admitted in this proceeding if they -

1) allege "that the exercise demonstrated fundamental flaws in LILCO's plan" (CLI-86-11, 23 NRC at 581);

2) . . . have a basis which "if true, would demonstrate a fundamental flaw in the plan" (Id.);

1 LILCO's Response of October 20, 1986.

2 Staff's Response of October 23, 1986.

3) set out the bases of the contentions with " reasonable specificity" (10 C.F.R. 5 2.714(b));

4) are not duplicative of other contentions (October 3 Prehearing Conference Order at 9); and

5) meetthebalancingtestin10g.F.R.52.714(a)forthe late admission of contentions.

Staff believes that Contention 2 fails to meet the first requirement, Contentions 2 and 3 fail to meet the second, Contentions 1, 3, and 4 fail to meet the third and fourth, and all contentions fail to meet the last requirement.

A comparison of these contentions and their parallels among the other contentions is in order. Contention 1 ". . . addresses FEMA's assessment of the February 13 exercise and challenges FEPA's failure to make a finding of no reasonable assurance."4 The intervening governments assert that this contention is similar to and could be considered in conjunction with Contention Ex. 19 which has been admitted for argument only.

Both LILC0 and Staff point out that Contention 1 is redundant to Contention Ex. 19. We agree. Both contentions address the nature of the FEMA finding. The intervening governments' description of Contention 1 - that it addresses FEPA's assessment and challenges FEMA's M.atp.5.

4 Motion, p. 2.

i failure to make a negative finding - is reasonable. In fact, Contention 1 asserts that either:

1. there is no FEMA finding on which NRC may base a conclusion; or

2. there is a FEMA finding and that finding is negative. The contention relies on the limited appearance statement of FEMA's former Regional Director, Frank Petrone for the latter assertion. Contention Ex.19 also makes these assertions, and also relies on statements by Mr. Petrone.

Contention 2 points to the effect which the Chernobyl accident will have on the local residents' response to a Shoreham accident and cites a recent Newsday poll to the effect that 1.8 million of them would imediately seek to evacuate. This contention thus raises the possibility of a " shadow phenomenon" in which people located more than 10 miles from the facility would seek to evacuate. The intervening governments assert that this contention could be considered with ". . .

Contention Ex. 22 which alleges that the exercise was ' premised upon certain assumptions . . . which conflict with established facts . . .

,. 5 LILC0 and Staff correctly point out that Part A was the only l

portion of Contention Ex. 22 admitted. Part A deals with the Motion, n.2, p. 4.

l i

P unavailability of the Nassau Veterans Memorial Coliseum as a reception center for evacuees. Part F, which raised the possibility of a " shadow phenomenon," was not admitted. Its substance will be dealt with in connection with Contentions Ex. 38 or 39 to the extent that it raises questions concerning LILC0's ability to disseminate information to the public and answer the public's inquiries. 6 These matters are not raised by Contention 2.

Contention 2 appears redundant of Contentions 22 C and 23 which also raise the problem of a possible " shadow phenomenon." Contention 22 C was denied admission by the Licensing Board.7 That ruling was reversed by the Appeal Board'.8 The Appeal Board's decision is now under review by the Comission.9 Contention 23 was heard and decided, and that decision was affirmed.10 Because the Comission has not elected to review that decision, it is now final. Finally, Contention 2 by no means raises a matter revealed by the February 13 exercise.II l

6 October 3 Prehearing Conference Order at p. 14.

7 Special Prehearing Conference Order (August 19, 1983) at 8-12.

8 ALAB-832, 23 NRC 135,148 (1986) .

9 Comission Order (September 19, 1983).

10 LBP-85-12, 21 NRC 644, 655 et seq. (1985); ALAB-832, 23 NRC 135 (1986).

11 Cf. CLI-86-11, 23 NRC 577, 581 (1986).

i

.t The intervening governments point out that Contention 3 may be considered in conjunction with admitted Contentions Ex.15 and 16.

Contention 3 asserts that the February 13 exercise provides no basis for concluding whether adequate protective measures can and will be taker; in the event of an emergency because:

1. [the exercise] was irrelevant to the actual conditions on Long Island;

2. it made believe that 130,000 people were evacuated without major problems;

3. it ignored the effects of a large-scale voluntary evacuation of hundreds of thousands of people; and

4. it was based on a scenario that LILCO wrote for which did not include difficult tasks for LILCO.gself and LILC0 and Staff believe that this contention is duplicative of Contentions Ex. 15 and 16. We agree. These contentions concern the scope of the exercise and spell out in detail its alleged deficiencies.

Contention 3 merely asserts generalities which are encompassed within Contentions Ex.15 and 16.13 Contention 4 asserts that FEMA's evaluation of the exercise is inadequate in that FEMA acted as a mere puppet of LILCO. The intervening governments assert that this contention may be considered with Contention Ex.19.

12 D'Amato letter, pp. 2-3.

13 In this connection, we agree with Staff's assertion (Response, pp.

10-11) that contention 3 is too vague to be litigated.

~

io l

LILC0 and Staff believe Contention 4 is subsumed within Contention i Ex. 21 which challenges the sufficiency of the data used by FEMA in its evaluation. We agree.I4 From the above, it is evident that Senator D'Amato's contentions do not add any new dimensions to the controversy. While, in general, these contentions raise matters within the scope of the Shoreham proeedings, the matters raised by Contentions 1, 3, and 4 will be addressed through the contentions which have been admitted in this portion of the proceedings. To the extent that the matters raised by Contention 2 have not been finally decided, they will be considered in another portion of this proceeding where admissibility of a similar contention is under Conunission review. Nothing would be gained by admitting these contentions as separate matters to be addressed, either as sponsored contentions or as sua sponte issues. Consequently, the intervening governments' motion must be denied. We will, in our initial decision, note Contentions 1, 3, and 4 in reaching our conclusions on the admitted contentions.15 14 Again, we agree with Staff (Response, pp. 12-13) that Contention 4 is also too vague to be litigated.

In reaching this result, we must note our agreement with Staff (Response, pp. 4-5) that in all cases a party seeking the admission of tardy contentions must make a satisfactory showing under s 2.714(a). No such showing was attempted here; that in itself dictates that these contentions be denied.

I It is so ORDERED THE ATOMIC SAFETY AND LICENSING BOARD W 0JYt Dr. Oscar H. Paris ADMINISTRATIVE JUDGE

. (JN__

Mr. FredericNL SFf56 ADMINISTRATIV JUDGE

%v John \H Fr ST

, III, Chairman IVE JUDGE Bethesda, Maryland l

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