ML20236V028
| ML20236V028 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 11/25/1987 |
| From: | Lanpher L, Latham S, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#487-4927 OL-3, NUDOCS 8712040044 | |
| Download: ML20236V028 (11) | |
Text
-__
fl927 l
00CMETED USNRC November 25, 1987 W MN 30 Nii:57 '
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE CT tr ~Y
~ - a.v, Before the Atomic Safety and Licensino Board 00CKEipai nF AM-
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-3
)
(Emergency Planning)
(Shoreham Nuclear Power
)
Station, Unit 1)
)
)
RESPONSE OF SUFFOLK COUNTY, THE STATE OF NEW YORK AND THE TOWN OF SOUTHAMPTON TO NRC STAFF RESPONSE IN SUPPORT OF LILCO'S MOTION FOR
SUMMARY
DISPOSITION OF CONTENTION 25.C
(" ROLE CONFLICT" OF SCHOOL BUS DRIVERS)
Suffolk County, the State of New York, and the Town of Southampton (hereafter, the " Governments") hereby respond, pursuant to 10 CFR 52.749(a), to the NRC Staff's Response to LILCO's Motion for Summary Disposition of Contention 25.C (" Role Conflict" of School Bus Drivers), dated November 13, 1987 (hereafter, " Staff's Response").
The Governments continue to believe, for the reasons set forth in their November 13 Answer to LILCO's summary disposition motion,l/ that LILCO's motion for summary disposition of Contention 25.C1/ is wholly without merit and must be summarily 1/
Answer of Suffolk County, the State of New York and the Town of Southampton to LILCO's Motion for Summary Disposition of Contention 25.C
(" Role Conflict" of School Bus Drivers), Nov. 13, 1987 (hereafter, " Governments' Answer").
1/
LILCO's Motion for Summary Disposition of Contention 25.C (footnote continued) hdohh22 PDR
9.
l denied by the Board.
The Staff, however, would have this Board reach a different result.
The Staff's position is based upon a total misunderstanding of LILCO's Motion and particularly LILCO's entirely new plan for implementing protective actions for school j
children, however.
Further, the Staff misconstrues and misstates the issues raised by LILCO's Motion.
Thus, like LILCO's Motion, I
I the Staff's Response should be summarily rejected by this Board.
To the extent necessary, we explain our reasoning below.3/
1.
The Staff baldly asserts that "there is nothing in the results of the survey of firemen to suggest a conclusion with respect to the likelihood of a massive defection different from that reached by the Board regarding the bus driver survey.
Only 1% (in the case of firemen) said they would immediately leave the evacuation zone."
Staff's Response, at 5.
This distorts and (footnote continued from previous page)
(" Role Conflict" of School Bus Drivers), Oct. 22, 1987 (hereafter, "LILCO's Motion").
3/
We will not repeat here arguments already made in response to LILCO's Motion, but rely instead on our November 13 Answer.
That Answer demonstrates that LILCO's Motion is procedurally improper and totally without merit.
It must be noted, however, that, in our view, many of the positions advocated by the Staff are so wholly lacking in merit that little, if anything, need be said in this Response.
For example, to suggest, as the Staff does at page 3 of its Response, that the firemen survey only adds
" marginally" to the existing record on the issue of role conflict is absurd.
This same argument, as we have previously noted, has already been rejected by the Appeal Board and the Commission.
Ege Governments' Answer, at 22.
Indeed, in remanding the Contention 25.C issue for further evidentiary hearings, the Appeal Board expressly found that the results of the firemen survey "would provide insight into the likely course of conduct of school bus drivers."
Lona Island Liahtino Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-832, 23 NRC 135, 153 (1986).
Thus, it can hardly be suggested that the survey only adds
" marginally" to the record already developed before this Board on the issue of role conflict.
See also Governments' Answer, at 20-25. ____ - __
I misrepresents the results of the firemen survey.
The evidence from that survey was not that only one percent of the firemen f
surveyed would leave the EPZ (as the Staff asserts), but that at 1
l least 36 percent would do so.
Sag Governments' Answer, at 22-24.
\\
Further, the Staff's argument assumes that the consideration that i
j was given by this Board to the school bus driver survey that was admitted into evidence, and the conclusions reached by this Board on that survey, were not disturbed by the Appeal Board's holding in ALAB-832.
This assumption is plainly wrong, however.
- Indeed, in remanding the school bus driver availability issue, the Appeal Board expressly referenced the school bus driver survey and LILCO's failure to submit evidence to counter the facts revealed by that survey in concluding that the record did not support a finding that a sufficient number of drivers would be available.
Egg ALAB-832, 23 NRC at 152, 154; see also Governments' Answer, at 20-22 and n.7.
2.
The Staff glibly acknowledges that "[i]f one accepts the weight given the (school) bus driver survey by the Appeal Board," then LILCO's expectation that regular school bus drivers would do their jobs in a Shoreham emergency, because they would receive training and compensation, is unjustified.
This conclusion is based on the Staf f's belief that " training and compensation, by itself, does not, on its face at least, resolve doubts raised by the survey."
Staff's Response, at 5.
Nevertheless, the Staff concludes that LILCO should be granted summary disposition, based upon its understanding that "rather than relying exclusively on non-LERO bus drivers," LILCO _ - _ _ _ _ _ _ _ _ _ -
has devised a " detailed scheme for assuring that there are sufficient numbers of LILCO employees available and prepared to fill the ranks of needed bus drivers."
Such assurance, in the Staff's view, is provided by LILCO's commitments to " recruit, train, equip, compensate, and license LILCO employees as bus drivers."
Staff's Response, at 5-6.
The Staff's reasoning is illogical and provides no basis for granting summary disposition in LILCO's favor.
First, LILCO's wholly executory " commitments" cannot support the findings of fact and conclusions of law necessary for LILCO to prevail on summary disposition.
At this time, the recruitment of those LILCO employees who would act as bus drivers has not been completed, no drivers have been trained or licensed, and there has been no review by FEMA or anyone other than LILCO of the training program's adequacy or the appropriateness of LILCO's recruitment process.
Merely promising to do something is not sufficient to enable this Board to dispose of the school bus driver availability issue remanded by the Appeal Board for further evidentiary hearings.
- Egg, e.o., Governments' Answer, at 4.
The Staff offers no passible basis for accepting LILCO's multiple promises; the Staff response evidences no study whatsoever by Staff personnel regarding the adequacy of LILCO's l
new plan.
In short, the Staff evidences a willingness to accept j
i as true, established and adequate whatever LILCO says.
That clearly is not the basis upon which summary disposition might be l
I l
granted. _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ _ _
1 i
Second, LILCO's proposed new plan is completely lacking in detail -- there are not even draft plan or procedures to review and FEMA has not been asked to review the new approach.
- Indeed, in most respects, LILCO's " commitments" are mere generalized hyperbole; further, they amount to a fundamental change in LILCO's Plan.
Thus, LILCO proposes for the first time to use LILCO employees, rather than regular school bus drivers, to transport school children out of the EPZ and to conduct a school evacuation in one wave.
At least 222, but perhaps as many as 562 LILCO employees, would serve as primary bus drivers under LILCO's proposal; any LILCO employees not needed as primary drivers would serve as backup drivers.
Such a dramatic change in LILCO's Plan raises many issues and concerns not previously litigated or even addressed in the earlier litigation before this Board.4/
Under these circumstances, there must be an opportunity for review, for focusing issues through contentions, and for discovery before this Board could seriously consider LILCO's new plan, much less a summary disposition motion based upon such plan.
Egg cenerally Governments' Answer, at 2-6, 33-36.
Third, LILCO's new plan for implementing protective actions for school children does not even purport to address two of the issues directly presented in Contention 25.C:
early dismissal and bus availability.
The Staff recognizes that LILCO's Motion does not address the bus availability issue; thus, even the Staff 1/
See Governments' Answer, at pages 34-35, for a listing, by way of example only, of such issues and concerns.
l c-
I concedes that the Board's overall finding of lack of reasonable i
assurance with regard.to the evacuation of school children must remain intact, irrespective of the Board's ruling on LILCO's Motion.
Egg Staff's Response, at 3, 6 and ns. 2, 4.
The Staff ignores, however, the early dismissal issue.
l 3.
The Staff errs in assuming that LILCO's Motion does not j
raise questions concerning the ability of LERO bus drivers to perform their assigned duties.
Egg Staf f 's Response, at 6,. n.4.
j During the February 13, 1986 exercise, FEMA identified the poor
]
performance of LERO bus drivers as a " Deficiency" -- the most severe of.the ratings that can be given by FEMA.
- Clearly, therefore, the ability of LERO workers (who are LILCO employees) to perform bus driving duties would need to be inquired into under LILCO's new scheme for using its employees to drive school buses.
4.
The Staff misleads this Board in claiming that the Limerick proceeding provides " adequate precedent for the use of utility employees to serve as bus drivers."
Staff's Response, at 6.
As we pointed out in our November 13 Answer (at pages 44-45),
the school districts surrounding the Limerick plant had agreed to accept the utility drivers as backups to regular school bus drivers.
The situation in this case is entirely different.
Here, LILCO's proposal calls for using its employees as primary drivers.
Moreover, there is no evidence that any school district within the 10. nile Shoreham EPZ has even been advised of, much less agreed to, LILCO's proposal.
In fact, nearly all school districts in and near the Shoreham EPZ have consistently refused to even participate in planning with LILCO -- as this Board has previously acknowledged.
Egg Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-85-12, 21 NRC 644, 856 (1985).
For all the foregoing reasons, the Staff's response in support of LILCO's motion for summary disposition of Contention 25.C should be rejected by the Board.
Respectfully submitted, Martin Bradley Ashare Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788 i
g Lawrence Coe Lanphef~
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
FM C. PaAa. CM)
Fabian G.
Palomino Special Counsel to the Governor i
of the State of New York Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Richard J.
Zahnleuter Deputy Special Counsel to the Governor of the State of New York Executive Chamber Room Number 229 Capitol Building Albany, New York 12224 Attorneys for Mario M. Cuomo, Governor of the State of New York Q Y S.
$Wf Stephen B. Litham Twomey, Latham & Shea P.O. Box 398
(
33 West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton i
l I
i i
I i
l 1
l l
i l
~
November 25, 1987 DocKcito USNRc I7 NW 30 41.57 UNITED STATES OF AMERICA l
NUCLEAR REGULATORY COMMISSION i
Before the Atomic Safety and Licensino B
((g khifj[
BRANCy
~
)
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 the RESPONSE OF SUFFOLK COUNTY, THE STATE OF NEW YORK AND THE TOWN OF SOUTRAMPTON TO NRCE STAFF RESPONSE IN SUPPORT OF LILCO'S MOTION FOR
SUMMARY
DISPOSITION OF CONTENTION 25.C (" ROLE CONFLICT" OF SCHOOL BUS DRIVERS) have been served on the following this 25th day of November, 1987 by U.S. mail, first class.
James P. Gleason, Chairman Mr. Frederick J.
Shon Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 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 Fabian G. Palomino, Esq.
W. Taylor Reveley, III, Esq.
Richard J.
Zahn16 uter, Esq.
Hunton & Williams Special Counsel to the Governor P.O.
Box 1535 Executive Chamber, Rm. 229 707 East Main Street State Capitol Richmond, Virginia 23212 Albany, New York 12224
i o
Joel Blau, Esq.
Anthony F.
Earley, Jr., Esq.
Director, Utility Intervention General Counsel N.Y. Consumer Protection Board Long Island Lighting Company Suite 1020 175 East Old Country Road Albany, New York 12210 Hicksville, New York 11801 l
Martin Bradley Ashare, Esq.
Ms. Elisabeth Taibbi, Clerk Suffolk County Attorney Suffolk County Legislature Bldg. 158 North County Complex Suffolk County Legislature Veterans Memorial Highway Office Building Hauppauge, New York 11788 Veterans Memorial Highway 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 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 Mr. Jay Dunkleburger Georgs E. Johnson, Esq.
New York State Energy Office Edwin J. Reis, Esq.
Agency Building 2 U.S Nuclear Regulatory Comm.
Empire State Plaza Office of General Counsel Albany, New York 12223 Washington, D.C.
20555 David A. Brownlee, Esq.
Mr. Stuart Diamond Kirkpatrick & Lockhart Business / Financial ILO' Oliver Building NEW YORK TIMES Pittsburgh, Pennsylvania 15222 229 W.
43rd Street New York, New York 10036 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ -
Douglas J. Hynes, Councilman Town' Board of Oyster Bay Town Hall Oyster Bay, New York 11771 Michael S. Miller KIRKPATRICK & LOCKHART 1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C.
20036-5891 j
4 I
i 1
E
+