ML20236L873
| ML20236L873 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 11/06/1987 |
| From: | Kline J, Margulies M, Shon F Atomic Safety and Licensing Board Panel |
| To: | LONG ISLAND LIGHTING CO. |
| References | |
| CON-#487-4794, RTR-NUREG-0654, RTR-NUREG-654 86-539-07-OL, 86-539-7-OL, LBP-87-30, OL-3, NUDOCS 8711110094 | |
| Download: ML20236L873 (17) | |
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i l DOCHETED UNITED STATES OF AMERICA USNHC NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD E E O E'M Before Administrative Judges: OFFICE OF $[CROARY l 00CMETING a SERVICE I Morton B. Margulies, Chairman BRANCH Dr. Jerry R. Kline '
Mr. Frederick J. Shon SERVED NOV -91967 1
In the Matter of Docket No. 50-322-0L-3 f
) (Emergency Planning) l l
LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1) ) November 6, 1987
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MEMORANDUM AND ORDER-(Ruling on Applicant's Motion for Suninary -!
Disposition of Contention 92) ,
l Introduction On September 11, 1987 LILC0 filed a motion pursuant to 10 C.F.R. 2.749 for summary disposition of Contention 92, which alleges in part ;
that there is no New York State emergency plan to deal with an emergency at Shoreham and that the LILC0 plan fails to provide for coordination of Applicant's emergency response with New York State assuming such a response would occur. The Licensing Board's prior disposition of ;
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Contention 92 in favor of Interveners had been reversed and remanded by the Appeal Board.1 In support of its motion', claiming that there is no genuine issue as to any material fact and that it is entitled to a 1
ALAB-847, 24 NRC 412, 429-433.
8711110094 871106 PDR ADOCK 05000322 9502
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decision as a matter of law, Applicant relies upon the existing evidentiary record and the law of the case.
In an answer submitted October 5,1987, Interveners request that the motion be denied. They assert that there are unresolved issues of material fact and that the requirements of 10 C.F.R. 2.749 are not met to grant LILCO's motion for summary disposition. They too believe that the subject issues can be decidad based upon the law of the case and the existing evidentiary record. ,
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The Staff, in a response dated October 5, 1987, agrees with '
Applicant that it is entitled to a decision as a matter of law, and that LILCO's motion for summary disposition should be granted. l On October 20, 1987 Interveners filed a response to the Staff l
response in support of the LILC0 motion for summary disposition of Contention 92. They argue that_ contrary to Staff's assertion that there
- are material facts in dispute with respect to Contention 92.
In this Memorandum and Order, the Licensing Board. finds that the motion for sumary disposition of Contention 92 should be granted because there is no genuine issue as to any material fact and Applicant is entitled to a decision as a matter of law.
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Background
The Licensing Board considered and decided Contention 92 as part of a grouping of contentions dealing with the ingestion pathway,2 It found that no site specific plans for Shoreham exist in the New York State plan. We further found that LILCO has the capability to perform the four specific tasks3that have been identified as State functions, although we did not expect that is all that a state might do in a genuine emergency. We decided that the absence of commitment, resources, and decisionmaking capability and authority of the State together with similar absences on the part of the County constitute a serious deficiency in the LILCO plan and concluded that public health and safety could not be protected as well by LILCO acting alone as it could if LILCO were acting in concert with the State of New York and the County. The Board decided that the State and County prevailed on Contention 92, the lack of State participation constituted a serious substantive deficiency in emergency preparedness at Shoreham.
The Licensing Board also heard as part of the grouping of. ingestion pathway contentions, Contention 81, which alleges that the utility's plan contains insufficient procedures or means for implementing protective actions for the 50-mile ingestion exposure pathway.
2 LBP-85-12, 21 NRC 644, 647, 875.
3 (1) dose projection based on release data communicated to State officials; (2) ingestion pathway sampling in the 50-mileContinued (Footnote EPZ; (3) )
4 The Board ruled in LILCO's favor on Contention 81. It found that LILCO's plans are adequate for management, monitoring, issuance of warnings, and means for implementation, through notification of producers and through purchase of possible contaminated food in the ingestion pathway EPZ.4 The Licensing Board finding on Contention 81 remains intact. It was not disturbed on appeal. )
Also relevant, as part of the legal authority issue, we heard and decided Contention 7, which alleges that the LILCO plan provides that various LILC0 employees and contractors will be responsible for determining, making available to the public, and implementing prozective action recommendations for the 50-mile ingestion exposure pathways which activities under State and County law are unlawful for LILCO's employees and contractors to perfonn.
We found that the activities described in Contention 7 were prohibited by State law and that this defect in the LILCO plan was not eliminated by preemption or through Applicant's realism argument.5 l
Although the Licensing Board's ruling on the legal authority issue were upheld by the Appeal Board,6 they were reversed and remanded for further (FootnoteContinued) interdiction of contaminated foods; and (4) protective action recommendations. LBP-85-12, 21 NRC at 883.
4 LBP-85-12, 21 NRC at 877.
5 LBP-85-12, 21 NRC at 895-912, 919.
6 ALAB-818, 22 NRC 651, 673-676.
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5 evidentiary hearing based on LILC0's realism argument. The process has started for holding the hearing called for in CLI-86-13.
Position of the Partief.
Contention 92 on which LILCO requests summary disposition reads as follows:
There is no New York State emergency plan to deal with an emergency at the Shoreham plant before this Board. (See, Attach.1.4.2). In addition the LILC0 Plan fails to provide for coordination of LILC0's emergency response with that of the State of New York (assuming arguendo, such a response would be forthcoming). (See FEMA Report at 1). In the absence of a State emergency plan for Shoreham, there can be no finding of compliance with'10 C.F.R. $$ l 50.47(a)(2), 50.47(b), or NUREG-0654 561.E.1.F I.H or II.,
(footnote omitted),
i In support of its motion for summary disposition LILCO argues that the Board's bases for ruling in favor of Interveners on Contention 92 in its Partial Initial Decision have been specifically rejected by the Commission or the Appeal Board and that since the Board had resolved all disputed factual issues in LILCO's favor in its previous decision there is now no material fact in dispute on Contention 92 and LILC0 is entitled to a decision in its favor as a matter of law.
The elements of LILCO's argument are complex and they require further elaboration. According to LILCO the Board in its Partial Initial Decision refused to accept LILC0's plan for the ingestion pathway as an adequate interim compensating measure under the provisions i 7
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6 of 50.47(c) where there was a total absence of State emergency planning for Shoreham and no assurance existed that any coordinated response to an emergency from the State could be expected. This view of the regulations LILC0 argues was reversed and remanded by the Appeal Board which in turn based its opinion on the Commission's ruling in CLI 86-13 where the Commission determined in the context of reviewing LILC0's overall proposal, that a utility plan prepared without any governmental cooperation might pass muster under 10 C.F.R. 50.47(c). LILCO next argues that the Board's second ground for deciding Contention 92 was its belief that the public health and safety could not be protected as well by LILC0 acting alone as it could if LILC0 acted in concert with " govern-mental authorities and that this ground was set aside by the Appeal Board on remand in favor of a reexamination of whether there are identi-fiable deficiencies in LILC0's ability to fulfil four State functions (which were identified by LILC0 in hearing) so as to render the plan inadequate. As to that matter LILCO asserts that the Board found in its Partial Initial Decision that LILC0 could adequately perform the speci-fied functions and that there are no other issues within the scope of this contention specifying other possible deficiencies regarding actions to be taken in the ingestion pathway. There being no further material issue of fact in dispute according to LILC0 it is entitled to summary disposition on Contention 92.
LILCO appended to its motion a " STATEMENT OF THE MATERIAL FACTS AS TO WHICH LILC0 CONTENDS THERE IS N0 GENUINE ISSUE TO BE HEARD ON CONTEN- !
TION 92 (N0 NEW YORK STATE EMERGENCY PLAN)." LILCO's statement consists )
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I of five material facts.which in abbreviated form assert: 1) The State and County would make a best efforts response using the LILC0 plan-in an ,
emergency; 2) The four specific functions- performed by the State in an emergency.are dose projection, ingestion pathway sampling, interdiction.
of contaminated foods, and issuance of protective action recommen-dations; 3) The four State functions have no do with the ingestion )
pathway and are performed in the aftermath of an accident: 4)'The Applicant will perform the four State functions but will defer to decisions of the Governments if requested and 5) The Applicant' has the -
capability to perform the tasks that have been identified as State functions.
LILCO further asserts that coordina' tion with the State is not a !
litigable issue because the Board's original ruling on Contention 92 was based on the absence of a state response altogether and not on the
.1 absence of coordination and because the issue of coordination is.part of ]
the realism issue and should not be duplicated under Contention 92.
The Governments filed an answer to LILCO's motion on October 5, 1987 in which they opposed sumary disposition of Contention 92. The l 1
Governments base their opposition primarily on that portion of j Contention 92 which asserts that LILCO's plan fails to provide for i coordination of LILCO's emergency response with that of the State. -In I the Governments' view the evidentiary record is ' completely void of any.
demonstrated preparedness on the part of.the State of New York and this d
prohibits a finding that there will'be an integrated or coordinated .
response or that the response to an emergency will be adequate.
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8 j As to the four State functions in emergency response that were proffered by LILCO in its defense against Contention 92 the Governments claim that LILCO cannot seek to prevail on Contention 92 based on its asserted capability to perform them because the New York Supreme Court 4 and the Appelate Division thereof ruled in Cuomo v_. LILCO that the functions to be performed by LILC0 under it's plan constitute illegal usurpation of the police power. Thus in the Governments' view LILC0's capability to per#orm the specified State functions is irrelevant to the msolution of Contention 92. l Additionally the Governments argue that following the Appeal j Board's remand in ALAB-847 there remain triable issues of material fact with regard to the adequacy of the LILC0 plan to fulfil the four State functions. In addition to the asserted legal prohibition cited above the l l
Governments now assert that the four functions cited by LILC0 are merely ,
1 representative of the kinds of functions that New York State might l perform in an emergency. Taking their cue from language used by the Board in its Partial Initial Decision ("we have a great deal of trouble accepting that that is all a State might do in an emergency.") Interve-nors assert that Contention 92 raises issues broader than the four State functions discussed in LILCO's motion. The primary issue they say concerns whether LILC0's plan provides for coordination of LILC0's emergency response with that of the State. Without stating specifically what else the State might do in an emergency, Interveners rely on in-structions from the Appeal board that the Board should determine on remand whether and how the States participation would make the plan
9 better. Thus, say the Interveners there is an absence of evidence of record that New York State would participa w in an emergency; that an ad hoc State response would comply with NRC regulations or that it would be meaningful, coordinated, or integrated with LILCO's response. Absent evidence of record on the nature of a State response in an emergency Interveners assert that the Board may not reach a conclusion other than that there is no reasonable assurance that an integrated or coordinated emergency response that includes the State would cccur. Interveners i
support their position by citation to the Comission's decision in j i
CLI-86-13 in which the Comission assumed that the Governments would j respond to an emergency with their "best efforts" but was unwilling to l assume that such efforts would be adequate without additional evidence.
Further support according to Interveners comes from the Board's decision ,
1 on LILC0's motion for sumary disposition issued September 17, 1987 l
wherein the Board found that the question' of adequacy of Government i response under the "best efforts" assumption required further develop-ment of evidence before it could be resolved.
Interveners acknowledge LILCO's argument that we should not dupli-cate our efforts and that the issues raised by Contention 92 are in some ways.similar to the realism and legal authority issues for which evidentiary hearings are to be held. They continue to oppose sumary disposition however on the basis that Contention 92 has been at issue i
since July 26, 1983; its admission was not opposed by LILC0; its allega-tions and issues raised have never changed. In Interveners view LILCO's C_'__.__._____.__._ _ _ . _ _ _ . _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . . _ _ _ _ _ _ _ _ _ . . . . _ _ . _ _ _ . _ _ _ _
4 10 assertion of duplication-is merely backdoor maneuvering seeking to oppose Contention 92's admission.
Interveners oppose.LILC0's claim that the four identified State i '
functions apply primarily to the ingestion pathway. They cite two-dose projection and protective action recommendations-which they claim are primarily related to plume exposure EPZ activities. Thus these are not activities to be done in the aftermath of an accident when there would. I be little time pressure on their accomplishment and in any event the Board has ruled that the timing and pressure under which a response must ]
be made are irrelevant to the requirements imposed by NRC's regulations.-
In sum Interveners claim that it is the coordination issue o'f.
Contention 92 that most clearly mandates denial of LILCO's motion. This is so say the Interveners because in its interpretation of CLI-86-13 all ,
l four State functions have been found by this Board'to involve factual disputes requiring denial of LILC0's motion for summary disposition of the legal authority issues. Interveners assert that renewed scrutiny is-required even for contentions that were previously resolved in LILCO's I favor such as Contention 81 because the situation confronting the Board was so changed by the Commission's decision in CLI-86-13.
.The NRC staff responded in support of LILCO's motion on October 5, 1987. In its response the staff reviews CLI-86-13 ALAB-847, and the
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Partial Initial Decision and concludes that there are no material facts in dispute. According to staf f our determinations under Contention' 81 and the facts in the record provide an ample basis for the Board to find under 9 50.47(c) that the LILCO plan constitutes adequate interim
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l 11 compensating action permitting a reasonable assurance finding, notwith-standing lack of literal compliance with 5 50.47(b)(10) and NUREG-0654.
Interveners found it necessary to respond to the Staff but their discussion was unproductive to disposing of the issues.
Discussion A literal reading of Contention 92 reveals that it makes two factual assertions and two legal assertions. The Contention alleges as factual matters that no State emergency plar is before this Board and i
that no planned coordination between LILC0 and the State is provided j for. It alleges as legal matters that as a consequence there can' be no compliance with specified portions of 10 C.F.R. 50.47 and portions of NUREG-0654. The Contention has specificity only for the things alleged and not for any additional specific defects that Interveners may wish to litigate by implication. LILCO in its defense against Contention 92 specified in testimony four issues which it said the State normally performs and claimed, on the basis that it could perfonn them, that it was entitled to prevail under the provisions of 50.47(c) which among other things would permit licensing where adequate interim compensating measures were taken for deficiencies found in an emergency plan. The Board was willing in its Partial Initial Decision to accept LILCO's demonstration, in essence, as a necessary one but could not find record support of sufficiency under a literal reading of the contention. We specifically expressed doubt as to whether the four matters raised by LILC0 were exhaustive of State functions in a planned response to an 9
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emergency. (We note here in passing that NUREG-0654 specifies 95 j elements as State responsibilities in emergency planning). We review this history to make clear that the four State functions which have become an issue in this contention arise from LILC0's litigation strategy and not from any specification of issues by the Interveners in their contention nor from anything the Board directed.
We initially admitted Contention 92 for litigation simply because it has the requisite basis and specificity for admission under NRC regulations. The specificity of the contention is not diminished because the matters alleged are broadly stated. The contention alleges, as comprehensive flaws, that no State plan is before the Board and that LILCO's plan fails to provide for coordination with the State in an emergency. There is no evidence that Interveners ever intended to litigate possible specific deficiencies in the LILC0 plan under this-contention or to extend its reach beyond the allegations plainly stated.
The evidence indeed is to the contrary because Interveners did not do so in the hearing, they submitted other contentions alleging specific deficiencies in the plan, and their references to violations in the i contention itself are broadly stated. For example they allege that the l violations they perceive include noncompliance with 9 50.47(b) in its ,
1 entirety even though that section contains 16 specific requirements on a broad range of subjects. Similarly Interveners reference perceived l violations of section I of NUREG-0654. That section however contains no specific planning requirements. That section states the underlying j rationale and conccptual bases for the emergency planning requirements l
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4 13 that are stated in detail in section II of NUREG-0654. Thus we are persuaded now as we were in our Partial Initial Decision that Contention 92 was intended to specify a global and conceptual deficiency in the plan which includes the full collection of State functions without-specifying each of them one by one. The truth of Contention 92 can therefore be determined by a simple measure of whether.a State plan for I Shoreham exists and whether there.is a planned coordination.between ]q LILCO and the State in the event of a radiological emergency at Shoreham. :
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l By that standard no party disputes and neither the Board'nor.the.
I Commission expresses any doubt that the factual allegations of Co'nten-tion 92 are true. Moreover the legal allegations of the contention are.
also recognized by the Appeal Board as literally true._ The Appeal Board l
stated in ALAB-847: "We agree with the Licensing Board.that, in terms, '
LILC0 cannot satisfy 9 50.47(b) or conform to the guidance in i NUREG-0654." Thus there are no material facts in dispute en Contention - )
l 92 and under the ruling of CLI-86-13 summary disposition _is required as a matter of law. l The foregoing conclusion is not at variance with the Appeal Board decision in ALAB-847 which instructed us on remand to " reexamine whether.
there are identifiable deficiencies to fulfil the four State functions so as to render the LILC0 plan inadequate." We.have conducted such a review ourselves and find no basis in the record or-in the parties I responses to this motion for altering our previous conclusion that LILCO. i has the capability to perform the four State functions that it
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identified in the hearing. No party has argued, and the Board does not believe that any possible insufficiencies in LILCO's plan result solely .]
from either (i) LILCO's inability to do things not required by regula-i tions, or (ii) the State's capacity to provide a level of safety beyond that considered adequate. The only insufficiencies alleged by Interve-nors are their perceived lack of LILC0's ' gal authority to perform the four functions and their view that a broa ;r inquiry into State emergen- i i
cy response function is now required by the Connission's decision in l CLI-86-13. However we have provided for adequate inquiry into the legal {
authority question in our decision denying LILCO's ir.otion for summary disposition of the ten legal authority contentions. Interveners'are not )
1 persuasive that a broader inquiry into State function is required since )
the Appeal Board has ruled that review of the four State functions proffered by LILC0 is adequate. If we were required by ALAB-847 to o
inquire into how the participation of the State would make' the plan l l
better we conclude that that issue is encompassed within the' issues )
that will be addressed as a result of our decision denying summary disposition of the ten legal authority contentions.
Interveners argue that our interpretation of CLI-86-13 in our decis, ion denying summary disposition of the ten lega1' authority conten-tions requires us to take a consistent positien here. In-our previous decision we concluded that. summary disposition of those contentions must be denied because there existed unresolved issues of fact related to'the-
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nature and adequacy of government response under the Connission's best efforts assumption. We agree that Contention 92 could be viewed as w.___-__.___._----..-__.---.___-.-_---- - . - - . - _ - . - . - _ _ _ . . _ _ -. - _ - - _ _ . _ _ _ . . - -
c 15 raising the same issues particularly regarding the four State functions.
The issue of the adequacy of government response is however new to the case because of the Commission's decision in CLI-86-13. Our previous decision provides an adequate mechanism for inquiry into the new issue of adequacy of government response. Subsequent to that decision we afforded the parties the opportunity to advise us on the proper specifi-cation of issues for trial. Those matters have not yet been decided.
We are persuaded by the foregoing considerations of the validity of LILC0's argument that we should not duplicate our inquiries under Contention 92.
Interveners' arguments to the contrary were generalized and unpersuasive and they acknowledged that the four State function '
issues were also raised within the scope of the ten legal authority contentions.
We therefore conclude that any issues related to the adequacy of government performance that arguably might be included within the scope of Ccntention 92 can be consolidated within the scope of issues remaining for trial without prejudice to any party. We conclude that sunnary disposition of Contention 92 would not be incon-sistent with our previous action dealing with the ten legal authority contentions.
The essence of the dispute on Contention 92 is legal rather than i
factual ln our Partial Initial Decision we found that the truth of Contention 92 had adverse cov.equences to the acceptance of LILC0's plan.
The Comission however has decided with finality the legal effect of the absence of a State emergency plan for Shoreham.
The Comission has ruled that LILCO's plan can serve as an adequate interim
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I 16 j compensating action under s 50.47(c) even in the totai absence of State planning; that the State and local governments can be expected to !
participate in an emergency response with their best efforts even though that response is unplanned; that the standard of equivalent protection employed by the Board in its Partial Initial Decision was too stringent j nd that a more flexible interpretation permitting LILCO to demonstrate that it can achieve results-that are generally comparable to what could I he achieved with State and County participation should be employed.
With those interpretations by the Commission the Board concludes that the truth of Contention 92 does not require a finding adverse to LILC0. ,
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The Board has considered the five material facts as to which LILCO l claims there is no genuine issue and the Interveners response. We !
conclude that LILC0's facts are supported by the record and that they have not been adequately controverted by Interveners. The Governments argue generally that LILC0's facts are not material to the resolution of ]
Contention 9? and they specifically challenge LILC0's assertion in its statement uf uncontested facts (number three) that the four State functions have to do primarily with the inge:, tion pathway. That {
1 assertion is contrary to the record however because the parties i litigated this co.1tention as part of a cluster of ingestion pathway contentions and the entire record of this case was assembled witbout dispute among the parties that the functions of State and local government were apportioned in a manner which assigns responsibility for the 10 mile EPZ primarily to local government and responsibility for 9
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17 l the ingestion pathway primarily to the State. Interveners response therefore does not raise a material issue on Contention 92.
1 The Board co1cludes that Contention 92 has served its purpose of I I I establishing on the record that no State emergency plan for Shoreham is ;
before this Board and that there is no provision for planned coordina-tion between LILCO and the State. The Contention as written is clearly true and according to our interpretation of the Co,nmission's decision in j i
CLI 86-13 it does not raise any other unresolved health and safety issue and sumary disposition is required. Applicant's motion is therefore
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ORDER Based upon all of the foregoing, it is hereby ordered that Applicant's motion for suninary disposition of Contention 92 is granted.
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- FOR THE ATOMIC SAFETY AND l
LICENSING BOARD l
b Morton B. Marg 0 lies / Chairman :
l ADMINISTRATIVE LAW 00DGE l
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' 4A I J#rry R. K1 ihe'
/EMINISTRAT.:VE JUDGE I
sh>
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l I Frederick J. f , ~" j l
ADMINISTRATIVE JUQ6E 4 i Dated at Bethesda, Maryland this 6th day of November, 1987 1
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