ML20234F453
| ML20234F453 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 06/30/1987 |
| From: | Latham S, Letsche K, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#387-3947 CLI-87-05, CLI-87-5, OL-3, NUDOCS 8707080224 | |
| Download: ML20234F453 (18) | |
Text
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June 30, 1987
'87 11 -6 P2 :49 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
,: n :
DOCH s.
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Before the Commission U
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l In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-3
)
(Emergency Planning)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON MOTION FOR RECONSIDERATION OF PORTIONS OF CLI-87-05 In its Memorandum and Order, CLI-87-05, dated June 11, 1987 (hereafter, "CLI-87-05"), the Commission denied the portions of the Suffolk County, State of New York, and Town of Southampton l
Motion to Reopen Record, dated November 10, 1987 (hereafter, 1
" Governments' Motion") pertaining to LILCO's lack of agreement with the American Red Cross (" ARC") and the lack of congregate l
care facilities.
By this Motion, Suffolk County, the State of New I
York and the Town of Southampton (the " Governments") request that the Commission reconsider those portions of CLI-87-05, and reopen the record of this proceeding to permit the submission of evidence i
on those matters.
We discuss below each of the rulings, and why each one should he' reconsidered and reversed.
8707080224%8h$22 PDR ADOCK PDR 0503
1.
The Commission Erred In Refusing To Reopen The Record On The Issue Of Whether There Exists An Agreement With The American Red Cross Which Provides Reasonable Assurance That It Is Capable Of And Willing To Provide The Services Relied Upon in the LILCO Plan We do not repeat here the facts and arguments, contained in the Governments' Motion, which support the reopening of the record on Contention EP 24.P.
We demonstrate here that the Commission's ruling in CLI-87-05 lacks basis, conflicts with undisputed and acknowledged facts, and violates the NRC's regulations and the Atomic Energy Act.
l l
The only stated basis for the Commission's refusal to reopen the record on the ARC issue is its assertion that the ARC's letter j
of August 21, 1986 "does not appear to erode" the ASLB's finding in the Partial Initial Decision ("PID") that the 1984 letter of agreement from the ARC provided " reasonable assurance that the Red Cross will perform the duties which LILCO relies upon the Red Cross to perform in the Shoreham emergency plan " CLI-87-05 at 6 l
(citino PID, 22 NRC at 420). The Commission noted, in addition, that the ARC's 1986 letter states that its letter was "a statement l
1 of policy" of the ARC.
Id.
Based solely on these assertions, the 1
l Commission held that the Governments had " failed to carry their j
burden as movants to show that reopening the record is likely to lead to a materially different result Id. at 7.
In CLI-87-05 the Commission states no basis for its assertion that the 1986 ARC letter "does not appear to erode" the teasonable assurance finding in the PID.
Indeed, there is no basis for such
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a finding, in the face of the following undisputed facts:
- 1. Contention 24.P, upon which reopening was sought, alleges that LILCO has no agreement with the ARC to provide the services relied upon in the LILCO Plan.1
- 2. The ASLB's PID " result" on Contention 24.P was expressly premised on its finding that the 1984 ARC letter constituted "an agreement between LILCO and the Red Cross" which enabled it to f
find reasonable assurance that the Red Cross could, and in fact l
would, perform the various duties and provide the assistance for l
l which it.is relied upon in the LILCO Plan.2 l
l 3.
The 1986 ARC letter states that-the 1984 letter, relied upon by the ASLB, "is noi an agreement" (emphasis in original) and J
that "it should be understood that there is no agreement between Long Island Lighting Company and this Chapter (of the' ARC) l relating to the Chapter's responsibility to provide emergency 1
The text of Contention 24.P is as follows:
CONTENTION 24.
LILCO has failed to obtain agreements from several of the organizations, entities and individuals for performance of services required as part of the.offsite response to an emergency pursuant to NUREG 0654, as follows:
l P.
LILCO relies upon the ARC to provide services, including medical and counselling services, at relocation centers.
(Plan at 2.2-1, 2.2-2, 3.6-7 and 4.2-1).
However, LILCO has no agreement with the ARC to provide such services.
In the' absence of such agreements, LILCO's proposed protective action of evacuation cannot and will not be implemented.
2 gee pID, 22 NRC at 416-17, 419-20. l
i assistance during a radiological emergency [at Shoreham]."
It defies reason and logic to assert that the fact that one i
party to a supposed " agreement" disavows the existence of that j
agreement does not " erode" the basis of a finding that an 4
agreement exists.
The Commission's conclusion has no basis; it I
.l must be reconsidered and reversed.
I 1
In CLI-87-05, the Commission not only ignores the facts, but n
also fails to state any basis for the conclusion it reaches.
Thus, there is no basis for the Commission's apparent belief that
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J a general " statement of policy" is equivalent to an agreement demonstrating the willingness and capability of performing specifically enumerated functions, particularly in the face of an concerning 'uch specifically express disavowal that any agreement s
enumerated functions exists.
There is no evidence in the record upon which the Commission's conclusion could be based, and the Commission provided no indication in its decision as to how it reached its conclusion.
Due process requires that. administrative decisions must be based upon evidence in the record and must include a statement of the basis for findings.
CLI-87-05 violates this well-established principle and must be reconsidered and reversed for that reason as well.
Moreover, the substantive issue raised by Contention 24.P and discussed in the ASLB's decision is whether there is reasonable assurance that the various services, which LILCO assumes in its
-4
J Plan the ARC will provide and perform adequately, will in fact be forthcoming.
Clearly, that is the underlying reason for the requirement in NUREG 0654, upon which Contention 24.P is premised, that emergency plans must include written agreements with entities relied upon for an emergency response.3 Indeed, in supporting the Governments' Motion, the NRC Staff recognized the need to face the substantive consequences of the 1986 ARC letter, by arguing that in light of that letter "just what aid the ARC would provide in the event of a Shoreham emergency, is far from clear."
Eeg CLI-87-05 at 5 (auotina the Staff Response at 7).
The issue of what the ARC response would be, if any, and whether it would be adequate, is the central point of Contention 24.P, the PID, and the Governments' reopening motion.
And, it certainly is material and relevant to any reasonable assurance finding.
A "different 3
The NUREG 0654 requirement is set forth in Section II.A.3:
Each plan shall include written acreements referring to the concept of operations developed between Federal, State and local agencies and other support organizations having an emergency response role within the Emergency Planning Zones.
The agreements shall identify the emergency measures to be provided and the mutually acceptable criteria for their implementation, and specify the arrangements for exchange of information.
(Emphasis added).
See also Section II.C.4, which states:
Each organization shall identify nuclear and other facilities, organizations or individuals which can be relied upon in an emergency to provide assistance.
Such i
assistance g_ hall be identified and supported by aporooriate letters of aareement.
(Emphasis added). l
result" would certainly be compelled if, as the 1986 letter indicates, there is no assurance of ARC support in an emergency.
Yet, the Commission has completely ignored this important matter in CLI-87-05.
The Commission's failure even to address this matter is yet another reason why its decision must he reconsidered and reversed.
l Finally, in addition to lacking basis, contradicting undisputed facts, and ignoring NUREG 0654 and the substantive issue raised by Contention 24.P, the Commission's ruling in CLI-87-05 also constitutes a clear violation of the NRC's regulations.
10 CFR S 50.47(a)(2) requires that any NRC finding on whether there is reasonable assurance under Section 50.47(a)(1) must be based on FEMA findings as to whether a plan is adequate.
It provides, further, that "in any NRC licensing proceeding, a FEhA finding will constitute a rebuttable presumption on questions of adequacy.
In this case, FEMA has made a finding that the LILCO Plan is inadecuate as a result of the 1986 ARC letter.
Nonetheless, the Commission rejected the FEMA finding, again failing to state any basis for doing so, and with no subsantive discussion of the requirements of Section 50.47(a)(2).
The Commission's comment that it "believe[s] that PEMA's assessment is entitled to (its] defe:ence, at least initially,"
followed by its wholly conclusory statement that "we are unpersuaded that the lack of an agreement in this instance would lead to a different result," CLI-87-05 at 6-7, fails to come to r
n l
l l
'l l
grips with either the " presumption" status granted to FEMA findings on adequacy, or the entitlement of parties to rebut that presumption, both of which are granted by Section 50.47(a)(2).
l l
Clearly, before the NRC can make a valid ruling that a FEMA I
finding on adequacy has been " rebutted," there must be a basis in the evidentiary record for such a ruling, the parties must have I
had an opportunity to address the issue and submit evidence to support, or to rebut, the FEMA finding, and the basis and rationale for ruling that the presumption has been rebutted must be stated in the ruling itself.
The Commission ignored all these requirements.
Its rejection of the FEMA finding, without stated basis and without having afforded the parties the opportunity to present evidence on the subject, violates the regulations, the I
Atomic Energy Act's guarantee of the right to a hearing on matters material to a licensing decision, and the decision of the United l
\\
l States Court of Appeals in Union of Concerned Scientists v.
- NRC, 1
735 F.2d 1437 (D.C. Cir. 1984), cert. denied, 105 S.Ct. 815 (1985).
The Commission cannot decide whether it chooses to follow Section 50.47(a)(2):
it is bound to follow that regulation and to base the NRC's finding on its review of the FEMA finding.
Since FEMA has found the Plan to be inadequate and since there is no evidence to rebut FEMA's RAC finding, the NRC is absolutely barred from substituting its judgment for that of FEMA.
For this final 1
reason, the Commission must reconsider its ruling on the ARC issue.
i 2.
The Commission Erred In Refusing To Reopen The Record On The Issue Of Whether There Exist Adequate Congregate Care Center Facilities Which Would Be Available For Use By LILCO Or The American Red Cross In The Event Of A Shoreham Accident The Commission's decision to deny reopening on the question whether there are adequate congregate care facilities which either LILCO or the ARC could identify and use during a Shoreham accident must also be reconsidered and reversed, because that decision lacks basis, is contrary to the facts, and violates the NRC's
(
regulations.
The Commission appears to acknowledge that the ASLB's
)
i decision in favor of LILCO on the congregate care center issue (Contention EP 75) was premised on the ASLB's finding that the ARC had agreements with LILCO and with the owners of various I
facilities identified in the list attached to the 1984 ARC
" agreement" letter.
See CLI-87-05 at 7.
Furthermore, the Commission also acknowledges that the ASLB's reasonable assurance finding that the ARC could adequately perform the task of securing sufficient space for congregate care during a Shoreham accident 1
was directly premised on the existence of such ARC agreements with l
facility owners.
Id.
Inexplicably, however, the Commission nonetheless concludes in CLI-87-05 that the 1986 ARC letter "doesn't weaken th[e] basis for the Board's decision.
" and therefore denies the motion to reopen because it "does not demonstrate that a materially different result would have been reached by the Licensing Board."
Id.
This conclusion has no basis and is directly contradicted by the undisputed facts.
-8 L____-_---_--_-_-____.-.
The 1986 letter clearly states that the acknowledged premises of the ASLB's decision are no longer true.
In fact, the ARC acknowledged in 1986 that:
A significant number of-the owners of the[]
facilities [normally relied upon by the Red Cross to provide space for relocation centers and listed on the attachment to the 1984 letter] have informed us that their facilities would not be permitted for use as relocation centers in the event of a radiological emergency at Shoreham.
Others have advised us that their facilities have been withdrawn for use in any event either natural or radiological.
Even the Staff acknowledges that the premise of the ASLB's
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decision has been invalidated by the 1986 ARC letter, in its response supporting the reopening sought by the Governments.
l Thus, in the portion of the Staff's Response quoted by the l
Commission in CLI-87-05, the Staff stated that the 1986 ARC letter creates an issue "as to whether the extent of withdrawals causes i
the ARC, on whose representations the Board relied, to believe that it cannot implement the LILCO plan." CLI-87-05 at 8 (quotina Staff Response at 8, n.5).
The Staff, in addition, stated in its Response that:
A significant safety issue acoears now in reoard to the credicate to the conclusions favorable to LILCO on Contention 75. Further it appears that the matters reported in the ARC letter of August 21, 1986 would likely have produced a different result on Contention 75, had they been known when the contention was decided.
I Staff Response at 9 (emphasis added).
Thus, the Commission's l
conclusion that the new ARC letter "doesn't weaken" the basis for L__________
the ASLB's decision is simply inconsistent with the facts.
In addition, the Commission's assertion, in an apparent attempt to support its conclusion, that "the Licensing Board seems to have been well aware of the dispute over shelter availability 1
at the time it issued its PID," CLI-87-05 at 9, is speculative, and, more importantly, contrary to the record before the Commission.
Clearly, there is no basis to assert, or to assume, that the ASLB was aware of those dispositive facts set forth in the 1986 ARC letter which are directly contrary to the ASLB's findings derived from the 1984 letter.
The 1986 letter sets forth facts completely different from those asserted by LILCO and the ARC in the 1984 proceeding.
Indeed, in 1986, for the first time, the ARC -- the only provider of congregate care services under LILCO's Plan -- stated plainly that it has no confidence that it can obtain facilities necessary to the provision of those services.
There is no basis to believe that in reaching its 1985 PID ruling the ASLB was " aware" of the ARC's 1986 understanding that the facilities "normally relied upon" would not be permitted for ARC use in a Shoreham emergency.
Similarly, the Commission's " finding" that "the bulk of the evidence presented in the motion to reopen is not, in fact, new evidence," because certain letters from facility owners "were bound into the transcript of the proceeding on June 25, 1985" (CLI-87-05, at 9), is clearly wrong.
As the Commission should have noted from the transcript it cites, the referenced letters _ _ _ _ _ - - _ - _ - _ _ _ _ _ - _ _ - _ _ _ _ -
l l
were submitted by Suffolk County as part of an offer of proof pursuant to 10 CFR 2.743, arter the ASLB had refused to permit their admission into the evidentiary record.
See Tr. 15932-45 (June 25, 1985).
Thus, they were expressly denied the status of
" evidence," and the ASLB could not, and did not, rely on them in
)
i the PID.
The Commission's " finding" that their having been bound l
l l
into the record constitutes a reason to deny the Governments' motion to reopen is totally without basis.
l Moreover, the ASLB's " awareness" of a " dispute" about congregate care centers -- even assuming such " awareness" existed
-- is of no relevance to the issue presented by the Governments' reopening motion.
What is relevant, and dispositive, are the following facts:
the record upon which the ASLB based its findings no longer reflects the facts; the evidentiary record upon which the ASLB's findings were based does not include the new liformation set forth in the 1986 ARC letter; the new information in the ARC's 1986 letter is inconsistent with, and cannot support, the ASLB's 1985 findings on Contention EP 75 and the adequacy and availability of congregate care centers; and, the NRC Staff, FEMA, and the Governments all agree that the record needs to be reopened to take into account the new information.
These facts require that the Commission reconsider and reverse its decision in CLI-87-05.
Finally, for the reasons explained above with respect to the ARC issue, the Commission's offhanded, unexplained, and baseless
! l
F.
rejection of the FEMA findings of inadequacy and unworkability on the issue of congregate care centers is clear error and a violation of the NRC's regulations.
The Commission acknowledged that FEMA has found the LILCO Plan " unworkable" in light of the 1986 ARC letter and its contents relating to congregate care j
centers.
See CLI-87-05 at 9.
With even less discussion than the cursory half sentence included with respect to the ARC issue, however, the Commission rejects that FEMA finding by merely asserting its " belief" that "several factors argue against reopening.
Id.
For the reasons discussed in section 1 above, the Commission's failure to discuss, much less explain or state a i
basis for, its arbitrary rejection of these FEMA findings, alone requires the reconsideration of its decision.
In addition, the Commission's failure to base its rejection upon any evidence, and its failure to permit any parties to submit evidence on the subject of the FEMA findings, also violate 10 CFR S 50.47(a)(2),
the Atomic Energy Act, and the UCS case.
- 3. Conclusion l
For the foregoing reasons, the Commission should reconsider its denial of the Governments' motion to reopen the record on the i
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ARC and congregate care center issues, and should grant the motion as to those issues.
Respectfully submitted, Martin Bradley Ashare Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788 Lawrknce Coe,4ahpher Karla J.
Letsche Michael S. Miller KIRKPATRICK & LOCKHART 1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C.
20036-5891 Attorneys for Suffolk County Fabian G.
Palomino Special Counsel to the Governor of the State of New York l
Executive Chamber, Room 229 l
Capitol Building Albany, New York 12224 l
l Attorney for Mario M. Cuomo, Governor of the State of New York
{
pepher}//B. Latham TwomeyFLatham & Shea P.O.
Box 398 33 West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton 1
i
~
s L Of. g; Til
- w June 30, 1987
'87 JUL -6 P2 :49 UNITED STATES OF AMERICA NUCLEARREGULATORYCOMMISSION'frF GCt ono -
Before the Commission
~~
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-3
)
(Emergency Planning)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON MOTION FOR RECONSIDERATION OF PORTIONS OF CLI-87-05 have been served on the following this 30th day of June 1987 by U.S. mail, first class, except as otherwise
- noted, Lando W.
Zech, Jr., Chairman Comm. James K. Asselstine U.S.
Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Room 1113 Room 1136 1717 H Street, N.W.
1717 H Street, N.W.
Washington, D.C.
20555 Washington, D.C.
20555 William C.
Parler, Esq.
Comm. Frederick M.
Bernthal U.S.
Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 10th Floor Room 1156 1717 H Street, N.W.
1717 H Street, N.W.
Washington, D.C.
20555 Washington, D.C.
20555
0 b
Comm. Thomas M. Roberts Alan S. Rosenthal, Chairman U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Room 1103 Appeal Board 1717 H Street, N.W.
U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 Mr. Howard A. Wilber Gary J.
Edles, Esq.
Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Appeal Board U.S.
Nuclear Regulatory Commission U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 i
Morton B. Margulies, Esq.
Comm. Kenneth M.
Carr Atomic Safety and Licensing Board U.S.
Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 1717 H Street, N.W.
Washington, D.C.
20555 Washington, D.C.
20555 Dr. Jerry R.
Kline William R. Cumming, Esq.
Atomic Safety and Licensing Board Spence W.
Perry, Esq.
U.S.
Nuclear Regulatory Commission Office of General Counsel Washington, D.C.
20555 Federal Emergency Management Agency 500 C Street, S.W.,
Room 840 Washington, D.C.
20472 Mr. Frederick J.
Shon Anthony F.
Earley, Jr.,
Esq.
Atomic Safety and Licensing Board General Counsel U.S.
Nuclear Regulatory Commission Long Island Lighting Company Washington, D.C.
20555 175 East Old Country Road Hicksville, New York 11801 Ms. Elisabeth Taibbi, Clerk W. Taylor Reveley, III, Esq.**
Suffolk County Legislature Hunton & Williams Suffolk County Legislature P.O.
Box 1535 Office Building 707 East Main Street Veterans Memorial Highway Richmond, Virginia 23212 Hauppauge, New York 11788 Mr.
L.
F.
Britt Stephen B.
Latham, Esq.
Long Island Lighting Company Twomey, Latham & Shea Shoreham Nuclear Power Station 33 West Second Street North Country Road Riverhead, New York 11901 Wading River, New York 11792 Ms. Nora Bredes Docketing and Service Section Executive Director Office of the Secretary Shoreham Opponents Coalition U.S, Nuclear Regulatory Comm.
195 East Main Street 1717 H Street, N.W.
Smithtown, New York 11787 Washington, D.C.
20555 i
^b e
Mary M. Gundrum, Esq.
Hon. Michael A. LoGrande New York State Department of Law Suffolk County Executive 120 Broadway, 3rd Floor H.
Lee Dennison Building Room 3-116 Veterans Memorial Highway New York, New York 10271 Hauppauge, New York 11788 MHB Technical Associates Dr. Monroe Schneider 1723 Hamilton Avenue North Shore Committee Suite K P.O.
Box 231 San Jose, California 95125 Wading River, New York 11792 Martin Bradley Ashare, Esq.
Fabian G. Palomino, Esq.
Suffolk County Attorney Special Counsel to the Governor Bldg. 158 North County Complex Executive Chamber, Rm. 229 Veterans Memorial Highway State Capitol Hauppauge, New York 11788 Albany, New York 12224 Edwin J. Reis, Esq.*
David A.
Brownlee, Esq.
Richard G. Bachmann, Esq.
Kirkpatrick & Lockhart Oreste Russ Pirfo, Esq.
1500 Oliver Building George E. Johnson, Esq.
Pittsburgh, Pennsylvania 15222 U.S. Nuclear Regulatory Commission Office of General Counsel Washington, D.C.
20555 Mr. Jay Dunkleburger Mr. Stuart Diamond l
New York State Energy Office Business / Financial i
Agency Building 2 NEW YORK TIMES Empire State Plaza 229 W.
43rd Street Albany, New York 12223 New York, New York 10036 Joel Blau, Esq.
Mr. Philip McIntire Director, Utility Intervention Federal Emergency Management N.Y. Consumer Protection Board Agency Suite 1020 26 Federal Plaza Albany, New York 12210 New York, New York 10278 Douglas J. Hynes, Councilman Town Board of Oyster Bay Town Hall Oyster Bay, New York 11771 Y
Lawrence Coe Lanphp(
KIRKPATRICK & LOCKHART 1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C.
20036-5891 By Hand, 7/1 By Federal Express, 6/30