ML20215N649

Memorandum & Order Withholding Final Disposition of Issue of Util Plan for Evacuees Not Seeking Sheltering & Affording Opportunity for Parties to Address Board 861029 Contention (That Issue Properly Raised) by 861121.Served on 861104

ML20215N649
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	11/04/1986
From:	Shoemaker C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
To:	LONG ISLAND LIGHTING CO., NRC OFFICE OF THE GENERAL COUNSEL (OGC), SHOREHAM OPPONENTS COALITION
References
CON-#486-1369 ALAB-847, OL-3, NUDOCS 8611070123
Download: ML20215N649 (4)

Text

~ /3M

DOCKETED US!4RC UNITED STATES OF AMERICA 86 my -4 P2

30 NUCLEAR REGULATORY COMMISSION OFFICE OF "f ATOMIC SAFETY AND LICENSING APPEAL BOARD 00Cs.t.T:tt t _ " l-LP/.n Cb l Administrative Judges:

Alan S. Rosenthal, Chairman November 4, 1986 l Gary J. Edles Howard A. Wilber ERVED NOV -41986

)

l In the Matter of )

)

l LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3

) (Emergency Planning) l (Shoreham Nuclear Power Station, )

Unit 1) )

)

! MEMORANDUM AND ORDER

1. In ALAB-847,1 acting on the appeal of the applicant Long Island Lighting Company (LILCO) from portions of two partial initial decisions rendered by the Licensing Board in

[ the emergency planning phase of this operating license proceeding involving the Shoreham nuclear facility, we remanded two issues to that Board for further consideration.

One of those issues concerned the portions of LILCO's i emergency response plan pertaining to the monitoring, decontamination and sheltering of persons removed from the facility's plume emergency planning zone in the event of an accident at Shoreham necessitating such evacuation.

l l

24 NRC (September 19, 1986).

8611070123 861104 PDR ADOCK 05000322 Q POR -

c_ -

-[.aC d-

I 2

More specifically, in LBP-85-31 2 the Licensing Board had concluded that, in addition to planning for the number of evacuees likely to' seek sheltering, LILCO was obliged to estimate and to plan for the number of evacuees likely to come to the Nassau Veterans Memorial Coliseum -- the then designated relocation center -- for radiological monitoring and decontamination alone. In challenging this result, LILCO had asserted on its appeal both that the Board's determination went beyond the issues admitted for litigation and that the imposition of the additional obligation was not justified by any regulatory requirement.

For the reasons set forth in ALAB-047, we decided to return the matter to the Licensing Board to enable it to consider in the first instance whether the issue of LILCO's plan for evacuees not seeking sheltering (hereafter the

" evacuee issue") had been properly raised for litigation.

We went on to note that, in light of this step, we were declining "at this juncture to rule on LILCO's alternative argument that the obligation imposed by the [ Licensing)

Board runs afoul of applicable regulatory requirements."4 22 NRC 410, 417, 430-31 (1985).

3 See 24 NRC at (slip opinion at 8-9).

4 Id. at (slip opinion at 9).

-l h 3 i

i The Licensing Board has now responded. In an October 29, 1986 issuance (unpublished), it advised us that, in its judgment, the evacuee issue was properly raised for j litigation. The Board further observed (as we had in ALAB-847) that the Nassau Coliseum is no longer available as a relocation center and called attention to the pendency of a recent LILCO motion to reopen the record for the purpose of substituting three other facilities for the Coliseum.

The Board does not intend, however, to act on that motion prior to our ruling on whether the obligation imposed upon LILCO in LBP-85-31 flowed from a properly raised issue and an existing regulatory requirement.5

2. In our view, substantial deference should be given to the belief of the trial tribunal that a particular issue was presented to it by.one of the litigants before it. This is particularly so where, as here, the relevant procedural history is exceptionally complex. Thus, it should be enough that, as also appears to be the case in this instance, the Licensing Board has supplied a reasonable' foundation for its determination.

We nevertheless will withhold final disposition of the matter to afford the parties an opportunity to comment on the Licensing Board's discussion in its October 29 issuance.

5 See October 29, 1986 issuance at 21-22.

1 4

In addition, the parties may address further the regulatory requirements question. We'are particularly interested in obtaining an elaboration by the staff of its views on that question. Possibly because its principal claim was that the Board-imposed obligation was not rooted in a properly raised evacuee issue, the staff's treatment in its prior submission of the regulatory requirements question was quite indecisive. At this stage, however, we are entitled to an unequivocal response from the staff on the question whether the obligation imposed upon LILCO by.the Licensing Board can be squared with the Commission's emergency planning dictates.

All supplemental memoranda shall be served and filed by November 21, 1986.

It is so ORDERED.

FOR THE APPEAL BOARD Q , b M __ A C. J an Shoemaker Secre(;ary to the Appeal Board 4

i i