ML20236V013

Memorandum & Order (Ruling on Intervenors Motion for Mod of Ruling).* Order That Intervenors Motion Be Denied in Part as Applied to Lilco Facts 8-10 Which Assert That Radiological Emergency Communication Sys Lines Exist.Served on 871202

ML20236V013
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	12/01/1987
From:	Gleason J Atomic Safety and Licensing Board Panel
To:
References
CON-#487-4930 86-535-04-OLR, 86-535-4-OLR, OL-3, NUDOCS 8712040036
Download: ML20236V013 (6)

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USNRC l

UNITED STATES OF AMERICA '

NUCLEAR REGULATORY COMMISSION 87 DEC -1 P4 :62

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ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: kc'xYEaNIjy' BRANCH l James P. Gleason, Chairman Dr. Jerry R. Kline Mr. Frederick J. Shon g In the Matter of Docket No. 50-322-OL-3

) (Emergency Planning)

LONG ISLAND LIGHTING COMPANY (ASLBP No. 86-535-04-OLR)

(Shoreham Nuclear Power Station, Unit 1) ) December 1, 1987

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MEM0PANDUM AND ORDER

'(Ruling on Interveners' Motion for Modification of Ruling) '

On September 17, 1987, the Board issued a Memorandum and Order ruling on LILCO's Second Renewed Motion for Summary Disposition on the Legal Authority Issues (Contentions EP 1-10). In that Order the Board denied LILCO's motion but.found that 58 of the 63 material facts offered by LILC0 were admitted because of failure of Interveners to controvert them. We also concluded that the 58 facts were material to the resolution of the controversy in this case. In our Order we found that five of the material facts offered by LILC0 were adequately controverted by Interveners and remained in dispute. On October 5, 1987 Interveners filed their ". . . MOTION FOR MODIFICATION OF RULING" in which they request the Board to modify its ruling in one aspect. Interveners claim that in addition to the five facts which the Board found to be in controversy, three other allegedly undisputed facts were contested by l

8712040036eg2M22 PDR ADOCK O PER #i G

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] the Governments and that these should be recognized as not being admitted and therefore still in dispute.

Interveners concede in their motion that they did not bring these facts to our attention in their original response to LILCO's motion.

The assertions they now rely on were, in fact, contained in an attached affidavit which asserted a number of other matters as well as the ones now at issue but were not referred to in the section of their motion that discussed the facts they wished to controvert. We remind parties that it is their responsibility to clearly identify and discuss the facts they rely on in their pleadings. It should be self evident that the pleadings in this case are complex. The Board will not devote its time to canvassing each narrative statement in lengthy pleadings to determine whether it bears some relation to one or more of a lengthy list of asserted facts in a motion for sumary disposition. That process is prohibitive because of the burden of possible permutations and combinations. Parties failing in this matter risk adverse rulings.

We conclude in this instance however that the failing was inadvertent and that the motion should be considered.

Interveners claim specifically that paragraphs 8, 9 and 10 in LILCO's Statement of Material Facts were controverted by portions of the affidavit of James Papile which was submitted with the Governments answer to LILCO's motion. All three of these alleged material facts address the status of the Radiological Emergency Communication System (RECS) lines which LILCO says now connect the Shoreham control room and LEPO with a number of specified State and County offices that would be

3 contacted in an emergency. LILCO claims that the lines are installed ,

and that it is maintaining them (paying the telephone company for them) and that all of the RECS phones will ring simultaneously when the telephone receiver in the Shoreham control room is lifted and the ring button is depressed.

Mr. Papile's affidavit, however, states that four RECS lines allegedly connecting LILC0's f acilities with State offices are nonfunctional. This is said to be so because in two cases the State offices which could be contacted to obtain permission to sound sirens in an emergency have moved to other locations while the lines remain in the same place; in all four cases the wires connecting Shoreham with State offices are not operational and two of those offices are staffed only during ordinary business hours.

LILC0 responded to Interveners' motion on October 9,1987. In its response LILC0 agrees that Interveners have not fully admitted statements of fact 8, 9 and 10. It argues however that only the matters st: tcd in Mr. Papile's affidavit are in controversy and that in any event the matters set forth in Mr. Papile's affidavit are not material to the ,esolution of the ultimate issue. We note however that LILCO all ged that the facts were material in its motion for summary

.sposition and we agree.

The NRC Staff responded on October 21, 1987 with an argument that the Board should grant the motion in part and deny it in part. In the Staff's view, the motion should be denied as to facts 8 and 9 because they address only the issue of the existence of RECS lines which is

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l uncontroverted in Mr. Papilet s affidavit. Fact 10 however addresses the operability of the lines which is in controversy in this case because it is included among the issues concerning the sounding of sirens and the process by which that will occur, and this is an issue the Board found to be in controversy in its Order. f t

DECISION The Board concludes that Mr. Papile's affidavit adequately controverts portions of LILCO's facts stated in paragraphs 8, 9 and 10 j of its Statement of Material Facts but fails in other respects.

Accordingly, we find that Interveners' motion should be granted in part and denied in part although not along the precise lines advocated by the Staff.

Mr. Papile's affidavit addresses only those RECS lines connecting the Shoreham control room with State offices. Those portions of LILCO's facts alleging that operable RECS lines exist between Shoreham and County offices have not been controverted by affidavit and therefore remain admitted. Interveners' motion is therefore denied as to any j i

facts alleged by LILCO in paragraphs 8, 9 and 10 which pertain to RECS i

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lines existence and operability between Shoreham and county offices.

Mr. Papile alleges two principal faults with the RECS line connections to State offices: the first is that in two cases the i relevant State office has been relocated while the lines remain

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installed !n the same location, and the second is that for all four ]

offices the lines are inoperable. These allegations are sufficient to i

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cause us to inquire further as to how communication between LILC0 and the State will occur in an emergency. We cannot follow the Staff's advice regarding disposition of paragraph 8 and 9 because while it may be uncontroverted that the RECS lines exist as LILCO states it is now alleged that they are in the wrong place for effective emergency communication. Interveners' motion is therefore granted as to LILC0's facts pertaining to the existence and operability of RECS lines in State offices.

The question of operability, however, requires further clarification. Both Staff and Applicant allege that " inoperable" as used by Mr. Papile translates into a simple assertion that the RECS telephones in State offices are unplugged. This is a matter with which we have experience because Interveners have previously stated on the record that their RECS telephones are unplugged. If the RECS telephones  ;

in State offices are inoperable solely because they are now unplugged, that matter could be imaterial to the resolution of remaining issues because it is within the power of the State to correct and it would be inconsistent with the "best efforts" assumption to consider the possibility that they would not do so. We address this matter now so that parties will be aware that it will not advance their case to devote time to insubstantial issues in future proceedings.

Mr. Papile's fundamental concern in raising communications issues related to the means by which LILC0 would obtain authorization to sound sirens or take other action in an emergency. That concern is one element of issues we have accepted for further exploration in future  ;

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h proceedings. The additional issues permitted by this Order will be consolidated within the scope of the legal authority contentions which are already admitted.

ORDER Based upon all of the foregoing, the Board hereby ORDERS:

1. Interveners' motion is denied in part as it applies to LILC0's l I

facts 8, 9 and 10 which assert that RECS lines exist and are operational between LILCO facilities and county offices.

2. Interveners' motion is granted in part as it applied to LILC0's facts 8, 9 and 10 which assert that RECS lines exist and are operational between LILCO facilities and State offices.

FOR THE ATOMIC SAFETY AND LICENSING BOARD M

tmes P. Gleason, Chairman V~

]MINISTRATIVE JUDGE Dated at Bethesda, Maryland this 1st day of December, 1987.

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