ML20234C129

Memorandum & Order (Ruling on Applicant Motion of 871022 for Summary Disposition of Contention 25.C,role Conflict of School Bus Drivers).* Util Motion for Summary Disposition of Contention 25.C Denied.Served on 871231

ML20234C129
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	12/30/1987
From:	Gleason J Atomic Safety and Licensing Board Panel
To:	LONG ISLAND LIGHTING CO.
References
CON-#188-5264 86-529-02-OLR, 86-529-2-OLR, OL-3, NUDOCS 8801060113
Download: ML20234C129 (7)

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$ 2 6fl DOCKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ,

ATOMICSAFETYANDLICENSINGB0b Before Administrative JudgegF i Eg 5 Ci r,Ig.

0 James P. Gleason, Chairman Dr. Jerry R. Kline Mr. Frederick J. Shon SERVED DEC 311387 In the Matter of Docket No. 50-322-0L-3 4

) (Emergency Planning) i LONG ISLAND LIGHTING COMPANY )

) (ASLBP No. 86-529-02-0LR)

(Shoreham Nuclear Power Station, )

Unit 1) December 30, 1987 MEMORANDUM AND ORDER (Ruling on Applicant's Motion of October 22, 1987 for Summary Disposition of Contention 25.C l ole Conflict of School Bus Drivers)

Background

On October 22,1987, LILC0 filed a Motion for Sumary Disposition of Contention 26.C which involves the potantial role conflict of school bus drivers during emergency evacuation conditions in the Shoreham emergency plauning zone..

Subsoquent to a Licensing Board finding that role conflict between emergency duties and family obligation would not be a significant problem and that a sufficient number of emergency workers would respond to perform their assigned duties in a timely fashion, the Appeal Board remanded the issue with respect to bus. drivers. 23 NRC 135, 152-154.

Concluding that the record could not justify a finding that an adequate 8801060113 871230 ,

PDR ADOCK 05000322

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l number of school bus drivers would be available, the Appeal Board directed this Board to provide further exploration of the matter. In addition to opening the record for all parties to submit additional testimony on the issue, the Appeal Board called on us to accept testimony concerning a survey of volunteer firemen on role conflict.

That s Jrvey had been excluded during the previous hearing on the issue.

Prior to the establishment of a schedule for a rehearing, Applicant filed the summary disposition motion before us.

It is Appifcant's position that the Appeal Board, in its remand, did not mandate an evidentiary hearing on the issue and that a I consideration of the excluded survey evidence, supra, could be evaluated with the Licensing Board reaching the same conclusion it did previously.

In LILCO's view, the absence of material issues of fact would then necessitate approval of its summary disposition motion. In support of this logic, the Applicant relied heavily on the comparable results of the firemen survey to those of a bus drivers' survey which the Licensing ,

Board had, in the prior hearing, previously considered and discounted. i Accordingly, LILCO believas the Board can logically discount the firemen '

survey since in its opinion it raises no new factual issues. LILCO also suggests that reliance by the Licensing and Appeal Boards on FEMA's testimony concerning the reliability of teachers and ambulance drivers should be extended to school bus drivers since such drivers would receive training from LILCO and no evidence had been introduced on non-performance by bus drivers in emergencies. And finally, we are told that this Board's prior findings of the poor predictability of polls for i

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3 behavior during emergencies was soundly based in the record and should not be viewed any differently for bus drivers. No rationale existed in LILCO's views for constituting such drivers as the sole exception among j emergency workers. See LILC0 Motion at 5-12.

In further support of its motion and to remove any " lingering doubt" on the availability of bus drivers, LILC0 states it now plans to j work with school officials to train, equip and reimburse regular bus drivers and also to produce 562 auxiliary backup bus drivers-recruited from among its.own employees-for the evacuation of all school children in a single wave. The auxiliary personnel would be preassigned to various bus yard's to carry out emergency driving duties as a substitute for regular drivers who fail to report for duty. Additional buses would also be produced by the Applicant, where necessary, to accomplish the single evacuation. LILC0 supported its motion with affidavits, lists of school transportation requirements and a statement of material facts concerning which it contends no genuine issue existed to be heard. See LILC0 Motion at 12-17. The Staff, contending that Appiicant's detailed plans tssure the availability of an adequate number of scSool bus drivers, supports the Applicant's motion for sumary disposition.

In a lengthy response to LILCO's motion, supported by affidavit _of counsel and a statement of material facts of genuine issues to be heard, Interveners oppose summary disposition of the matter. The Interveners generally make the following points:

• LILCO's motion mischaracterizes and distorts the Appeal Board's remand decision on the evidentiary value of survey and opinion

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polls and is in error on results of both the excluded firemen's survey and the bus drivers' survey. Interveners at 20-25, 29-32.

• No basis exists for extending teacher response in emergencies to bus drivers, an argument rejected by the Appeal Board in a Limerick proceeding (ALAB-836,23NRC479). Interveners at 25-29.

LILCO's proposal to recruit or train its own employees as auxiliary or backup bus drivers to accomplish a single-wave evacuation is essentially a new plan which requires analysis, evaluation, new contentions and discovery. Interveners at 33-39. Additionally, the .

1 plan does not demonstrate a compliance with New York State law on requirements for bus drivers. Interveners at 45-46.

LILCO's proposed licensing condition constitutes an erroneous !

l delegation to the Staff of the Board's legal responsibilities.

Interveners at 46-47.

Discussion It ir clear to the Board that the Applicant's motion for summary l

disposition fails for a number of reasons. As Interveners submit, no ]

1 basis exists for LILCO's argument that the Appeal Board did not specify j the necessity of an evidentiary hearing. By directing the Licensing Board to reconsider its original judgments on role conflict at a reopened hearing, we can only reach the conclusion that the Appeal Board expected its remand directive to be weighed in the environment of a litigated proceeding.

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5 The Board finds that LILCO's motion presenting a new arrangement for the supply of bus drivers has been sufficiently confronted by Intervenor to enable us to conclude that the plan presents material issues only resolvable in a future contested forum. As it exists now, although ultimately it may prove an adequate remedy to the availability of bus driver problem, LILCO's plan is executory and, as Interveners point out, requires analysis and review. Accordingly, since the new plan in its current posture cannot be considered as meeting the deficiency in the record perceived by the Appeal Board, LILC0's motion for sumary judgment must be and is denied. In light of the foregoing, there is no reason to decide whether the rules of practice for sumary disposition requires us, in these circumstances, to reject Applicant's motion on grounds the facts must be construed in a manner advantageous to an opponent.

However, the submittal of the auxiliary bus driver arrangement does not require consideration of new contentions. The basic issue to be explored by the Board is whether, in light of the potential for role conflict, a sufficient number of school bus drivers can be relied upon to perform emergency evacuation duties. To assure an adequate number of drivers, LILC0 has developed its new proposal for auxiliary drivers. It will suffice for our purposes that an opportunity to confront this plan be provided and a period for discovery on the plan's dimensions be i

authorized. Accordingly, the Board permits a discovery period of 30

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days on LILC0's new auxiliary proposal, commencing with receipt of this Order.

Both Staff and Interveners, in their respontes, have referred to 1 LILCO's motion as omitting mention of the availability of buses issue, a matter previously found by the Licensing Board to be a deficiency in LILCO's Emergency Plan (21 NRC at 874). As indicated heretofore, LILC0 does refer to arrangements it is currently making to secure an adequate number of buses for a single wave evacuation. See LILC0 Motion at 17 n. ,

.12. In the interests of expediting the resolution of any remaining emergency plan issues concerning the evacuation of school children, if Applicant desires to address that arrangement in the context of the current proceeding, we believe it should be pennitted to do so provided it presents the details of its plan to the parties in a timely manner and discovery with respect to it is arranged. See PID 21 NRC 844, 872-974 (1985).

In view of the foregoing decision, LILC0's recommended request for a license condition on its new bus driver plan is root.

The Board has received a December 16, 1987 motion submitted by the Governments and a LILC0 motion of December 28 in response. The first calls for us to ' summarily reject, for want of jurisdiction, LILCO's new proposal for evacuation of school children on grounds that LILCO has t failed to move to reopen the record with new issues; the second (LILCO's) to strike the Governments motion as an unauthorized pleading or, alternatively, to reject it on its merits. We find that the motion submitted by the Governments is untimely and arguments submitted therein

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7 should have been included in its response of November 13, 1987 to LILCO's summary disposition motion.

ORDER I

Based on the foregoing, the Board hereby Orders:

1. LILC0's_ Motion for Summary Disposition of Contention 25.C, tho Role Conflict of School Bus Drivers, is denied.

2. Discovery for a period of 30 days commencing with its official receipt of this Order is granted on LILC0's'new auxiliary bus driver proposal.

3. 'The Governments' motion of December 16, 1987 is denied.

FOR THE ATOMIC SAFETY AND LICENSING BOARD f i( % )

x /nl l (j Y d>' m /'

/%53' Ps lileason, Chairtnan

/ / ADMINISTRATIVE JUDGE

/

Dated at Bethesda, Maryland this 30th day of December, 1987.

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