ML20236V759
| ML20236V759 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 11/30/1987 |
| From: | Latham S, Mcmurray C, Zahnleuter R KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20236V761 | List: |
| References | |
| CON-#487-4971 CLI-87-05, CLI-87-5, OL-3, NUDOCS 8712070076 | |
| Download: ML20236V759 (29) | |
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00LKETED November 30, 1987RC 37 000 -3 R2:40 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE DF HQa IAi r 00CMETING A agi,yjcf' Before the Atomic Safety and Licensino Board BRANCH
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In the Matter of )
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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power )
Station, Unit 1) )
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RESPONSE OF SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON IN OPPOSITION TO LILCO'S MOTION FOR
SUMMARY
DISPOSITION OF THE WALK RADIO ISSUE I. INTRODUCTION Suffolk County, the State of New York, and the Town of Southampton (the " Governments") hereby respond to LILCO's Motion for Summary Disposition of the WALK Radio Issue (November 6, 1987) (the " Motion"). LILCO has used the Motion as a vehicle both to introduce a new Emergency Broadcast System ("EBS") scheme (albeit without submitting any actual Plan revisions or seeking any RAC review) and, at the same time, to attempt to foreclose any meaningful scrutiny of the details of that scheme. In doing so, LILCO continues its recent practice of unveiling for the l
B71207007b B71130 PDR ADOCK 05000322 G PDR
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. o first time an entirely new portion of its Plan, unilaterally declaring that the new provisions present no disputed facts, and, accordingly, simultaneously moving for summary disposition on the adequacy of the new provisions.
l LILCC's disregard for proper procedure must be rejected for a number of reasons. First, the Motion is contrary to:
(1) explicit instructions issued by the Commission in CLI-87-05 (reopening this matter); (2) the Licensing Board's plain intention, expressed in its August 31, 1987, Notice to the Parties, to establish an orderly process for hearing all remanded issues; and (3) the norms of NRC procedure. In particular, the Commission in CLI-87-05 explicitly provided that after LILCO unveiled a new EBS scheme, the Governments would have an l opportunity to submit new contentions. In light of this ruling, it was improper for LILCO to have filed its Motion, and thus to have required the Governments to prepare this Response, in the absence of the procedural steps mandated by the Commission.
Second, the Motion must be rejected because it is premature.
The Governments cannot be expected to reply to the merits of the Motion and LILCO's multiple new plan provisions in the absence of a fair opportunity to analyze and review the plan, conduct neces-sary investigations, retain experts, submit contentions, and pursue discovery. As recognized by the Board,1/ this is pre-1/ Egg Order (November 16, 1987).
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cisely the type of situation contemplated in 10 CFR S 2.749(c),
under which a Board should reject a motion for summary disposi-tion when the non-moving party has had inadequate opportunity to pursue,those avenues necessary to prepare an opposition on the merits. An affidavit specifying the factors which require such relief is Attachment 1 hereto.
For these reasons, which are more fully explained.below, LILCO's Motion should be denied.
II. BACKGROUND A. Procedural History LILCO's Plan' relies upon an EBS as the primary means to disseminate emergency information to the public. The EBS con-sists of a primary station and a number of smaller secondary stations.
The functions of the primary station are three-fold. First, it acts as "the primary direct communication link.to the public" in the event of a Shoreham emergency through direct broadcasts to the public. LILCO Plan, OPIP 3.8.2, at 1. Second, it activates the secondary stations which then rebroadcast the primary station's signal on their own frequencies. LILCO Plan, OPIP 3.8.2, at 2. Third, it is relied upon to activate tone alert
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radios located in various special facilities (such as schools, hospitals, nursing homes and major employers) in the EPZ. LILCO Plan, App. A., at IV-3, -170, -172, -173.
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Until the late summer of 1986, WALK Radio (97.5 FM, 1370 AM), located in Patchoque, Long Island, was designated by LILCO l as the primary EBS station. LILCO Plan, App. A, at IV-3. LILCO explained in its Plan that WALK was suited for this task because.
It is "the most powerful broadcasting station in the area and simultaneously broadcasts on AM and FM." LILCO Plan, App. A, at IV-3. Eleven smaller Long Island stations -- the secondary stations -- constituted the remainder of the Shoreham EBS. Egg l Motion, at 2. It was this WALK-based EBS which was previously submitted to the Board and parties for review and which was addressed in the Board's April 1985 Partial Initial Decision
("PID"). Egg LBP-85-12, 21 NRC 644, 763-64 (1985).
By letter dated September 16, 1986, LILCO informed the NRC and the Governments that WALK was no longer willing to partici-pate in LILCO's EBS. Accordingly, on November 10, 1986, the Governments moved the Commission to reopen the record on the adequacy of LILCO's EBS in light of WALK's withdrawal.2/ The Governments' Motion to Reopen included certain specific conten-tions to be considered in the proposed reopened proceeding, all premised on WALK's refusal to serve as LILCO's EBS radio station.
2/ Suffolk County, State of New York, and Town of Southampton Motion to Reopen Record (November 10, 1986) (" Motion to Reopen").
The Commission granted the Motion to Reopen on Jur<a 12, 1987, but did not' admit.the Governments' contentions at that time. Rather, the' Commission ruled that LILCO should first come
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' forward with a.new EBS plan, after which contentions on that plan would be filed and considered:
We grant the request to reopen.on this matter: _ interveners' request was timely, addresses a significant safety issue, demonstrates that a materially different result would have'been likely, and was supported by an appropriate affi-davit. However, we believe that it's oremature to admit contentions on the EBS situation until LILCO orovides uodated information on oublic notifica-tion orocedures which may elicit additional-contentions. We see no cain to coina throuch the contention admission orocess twice rather than once.
Memorandum and Order, CLI-87-05, 24 NRC , slip op. at 4 (June 12, 1987) (emphasis added).3/
l- Following the Commission's June 12 ruling, LILCO began to devise a new EBS plan. As its Motion and the attached materials demonstrate, that task required substantial time. On 3/ The Commission stated later in CLI-87-05 that:
The motion to reopen is granted as to WALK Radio.
. . ..We remand to the licensing board on the reopened issue, with the Board to ad.mit "new" contentions only to the extent they assist in focusing further the litigation on earlier-admitted issues, and only after LILCO provides updated information on public notification procedures.
CLI-87-05, slip op. at 10.
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' September 11, LILCO informed the Board and the parties that the EBS plan would be ready by about October 1.1/ LILCO did not meet that deadline, however, and on at least two occasions thereaf ter informed the Board and the parties that the plan was still not ready, but would be forthcoming.1/ Finally, on November 6, 1987, five months after the Commission's ruling and over a month after LILCO's initial deadline, LILCO served the Board and the parties with its Motion, which also contained the first skeletal description of its new EBS plan.5/ The LILCO submission con-tained no actual revisions to the LILCO Plan, but included cer-tain technical analyses and a general description of the new EBS.
B. The New Plan and the Governments' Inadeouate Oooortunity for Review The documents which LILCO appended to its Motion demonstrate that LILCO has substantially revised its EBS.1/ One of the most A/ LILCO's Views on the Priority of the Remaining Issues Before the Board (September 11, 1987), at 3.
1/ Letter dated September 30, 1987 from Scott D. Matchett of Hunton & Williams to this Board (extending deadline to October 21 because "one of the pieces of supporting information will not be available to LILCO for approximately two weeks"); LILCO's Views on the Issues and Schedule in the Realism Remand (October 30, 1987) at 10 ("LILCO will be submitting the details of the LILCO EBS to the Board within the next few days") .
5/ The Governments actually received the Motion on November 9.
1/ It is difficult to describe precisely the extent of the EBS revision because LILCO failed to supply any revisions (draft or final) to its emergency plan to reflect the EBS changes. This underscores that it is premature to address the merits of LILCO's new scheme.
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t important revisions, which raises multiple issues about the effi-I cacy of LILCO's EBS system, is that LILCO's new primary radio station is WPLR, an FM-only station $/ based in New Haven, j Connecticut. Thus, LILCO now anticipates that in an emergency, WPLR, a Connecticut station serving a Connecticut audience, will
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be the primary source of emergency information for Long Island )
residents. In addition, WPLR is now the means by which the secondary stations in the EBS, as well as the tone alerts in various special facilities, will be triggered. This new reliance 9 on a Connecticut-based EBS raises multiple issues, including whether Long Island residents would tune to a Connecticut-based
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1 system. i LILCO's materials in support of the Motion also reveal for
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the first time that 4 of the 11 secondary EBS stations on Long Island (two AM and two FM) have removed themselves from LILCO's EBS network. Motion, at 6. LILCO has replaced those four Long Island stations with two other AM-only stations, both of which, like WPLR, are also located in Connecticut and serve a Connecticut audience. The two new stations are WICC (AM),
located in Bridgeport, Connecticut and WELI (AM), located in New Haven. Thus, a total of five Long Island stations have withdrawn from LILCO's EBS, to be replaced by three Connecticut stations 1
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$/ As noted above, LILCO has emphasized in its Plan that WALK was an appropriate EBS station because it could broadcast simultaneously on the AM and FM bands.
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with different broadcasting characteristics. The result of this revamping of LILCO's EBS is that the new system provides substan-tially different coverage of the area in and around the EPZ.
Recognizing that this wholesale revision of its EBS raises issues as to the adequacy of the coverage afforded by the new stations, LILCO included with its submitted materials two l
engineering reports which allegedly support LILCO's assertion that its new EBS's coverage is adequate. Egg Motion, Attachments 5 and 6. The reports include technical analyses, contour maps, tables of measured field strengths, and similar technical data. Not surprisingly, none of the Governments' attorneys is able to analyze these documents for technical accuracy, adequacy, or completeness. Egg Affidavit of Christopher M. McMurray, Attachment 1 hereto (the "McMurray Affidavit"), 1 4. Rather, expert review'is required.1/
Furthermore, while LILCO provided its experts' final reports, it did not provide any of the documents underlying those reports or the analyses they conducted. It has been standard practice in this proceeding for a party's underlying documenta-tion to be provided to opposing parties. McMurray Affidavit, 1/ LILCO's submission also contains an affidavit from the outside expert consultant who is said to have conducted the engineering reports for LILCO. None of the Governments' counsel is able to analyze the technical aspects of this affidavit for accuracy, adequacy, or completeness. McMurray Affidavit, 1 4.
Here, too, expert analysis is required. ;
1 5.1E/ It was of course clearly in LILCO's power to supply such data. Before any detailed review of LILCO's analysis can take t
place, it will be necessary to scrutinize the validity of LILCO's engineering reports. Discovery will also be required. The Governments will need to retain experts to assist counsel in this )
I effort. McMurrary Affidavit, 1 5.11/
LILCO's submission also concedes that nighttime AM coverage by its new EBS is flawed because some of the EPZ will not be covered by an AM signal. Motion, at 11-12. The precise geo-graphic and demographic scope of this inadequate coverage is not specified in the text of LILCO's Motion; nor have the Governments' attorneys been able to ascertain that information based on their review of the accompanying engineering reports. .
l This issue, too, requires expert analysis and discovery. Ege McMurray Affidavit, 1 6.
1S/ For instance, the raw data underlying the analyses conducted by Mr. Lieberman, LILCO's traffic expert, were provided to the Governments during discovery in the reception center proceeding.
11/ The Governments have not heretofore engaged experts on this coverage issue because LILCO's earlier EBS involved a Long Island-based system which presented far less significant coverage issues and utilized a primary station and secondary stations which were well-known to the Long Island population. Thus, there is a clear need -- which cannot be accommodated on the spur of the moment when LILCO filed an unexpected summary disposition motion -- for the Governments to retain expert consultants to analyze LILCO's reports and related data.
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LILCO states that the unspecified gap in its coverage is i i
insignificant for two reasons. First, based on a.LILCO-sponsored survey conducted by an outside consultant, LILCO states that it has determined that most people have FM radios. Motion, at 11 and Attachment 7. This survey, like the rest of LILCO's data, '
was revealed to the Governments for the first time on November 9.
Review of the survey by one of the County's experts reveals that the survey results cannot be taken at face value because the description of the methodology used in the survey is too incom-plete to determine whether the survey was conducted properly.
Here, too, discovery is required. McMurray Affidavit, 1 7.12/-
Second, LILCO proposes to remedy its inadequate coverage on the basis of a " informal alerting process" which it claims was accepted by the Shearon Harris Licensing Board in the context of a ruling on the adequacy of the Shearon Harris plant's siren system. Motion, at 12-13; agg Carolina Power & Licht Co.
(Shearon Harris Nuclear Power Plant), LBP-86-ll, 23 NRC 294, 388-89 (1986). LILCO, however, offers no evidence of how and whether that process would work in the Shoreham EPZ and whether it would be adequate to compensate for the admitted gaps in its 12/ LILCO's Motion also contained an affidavit from the consultant who conducted LILCO's telephone survey. Egg Motion, Attachment 10. None of the Government's attorneys is able to analyze this affidavit for technical accuracy, adequacy or
}' completeness, and there has been insuf ficient opportunity to retain appropriate experts. McMurray Affidavit, V 7.
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coverage.13/. Further expert analysis and discovery are necessary l
to determine whether LILCO's assertion that the same process
.would provide adequate compensation at Shoreham is accurate.
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l McMurray Affidavit, 1 8.1A/
LILCO's submission also reveals that neither WPLR nor the I
two secondary stations on Long Island have equipment to enable them 'now to perform their tasks in an emergency, although LILCO tums committed to providing equipment in the indefinite future. A list of equipment which LILCO proposes to provide WPLR is )
included with LILCO's Motion. Motion, Attachment 4. Again, however, none of ' the Government's attorneys is able to ascertain I whether such equipment, if provided, will be adequate; that is yet another area which will need to be pursued in discovery and with expert consultants. McMurray Affidavit, V 10.
13/ In citing Shearon Harris, LILCO has conveniently neglected to mention that the Shearon Board found that the " data base".
before it regarding " informed alerting" was "largely anecdotal 3
and not very robust." 23 NRC at 389. The Board also stated that
"[a]ny estimate of the extent of informal alerting has I substantial uncertainty." Id. Thus, the Shearon Harris 1
" precedent" is hardly a ringing endorsement of LILCO's proposal. l Again, dis-covery and analysis will be required to ensure a )
thorough under-standing of LILCO's proposal. LILCO's skeletal
. description in the Motion is clearly inadequate.
li/ Likewise, LILCO provides no adequate bases for the calcula-tions presented on pages 12-13 and note 21 of its Motion. The accuracy and basis of these calculations must be explored as well. McMurray Affidavit, 1 9.
In the short time available to review LILCO's new plan, counsel for the Governments has determined that, aside from
" technical" issues (e.4,, the strength of the EBS signal, the gaps in coverages, etc.) which require further exploration, there are certain emergency planning issues which LILCO has not addressed in its Motion, but which are likely to be in dispute.
In particular, LILCO's reliance on a Connecticut-based EBS raises l new issues regarding adequacy of the system. Based upon initial l
l discussions with emergency planning experts, counsel has dis-cerned that an EBS should consist c! stations (and particularly a primary station) which are recognized by and known to the popu-lation in and around the EPZ. EBS stations from outside of the region at issue and which are not recognized by the public may be inadequate because (1) they will not be considered to be credible and authoritative sources of information and (2) the public will not remember to tune to such unknown stations in an emergency.
Sjlte McMurray Affidavit, t 11.
An EBS such as LILCO's, which has lost two of the most popular stations in Suffolk County (WALK and WBLI) and which relies instead on Connecticut stations and a few additional very small Long Island stations, may have extremely low Long Island listenership. Thus, LILCO's EBS may be inappropriate because it cannot and will not perform its assigned function --
communication to the public. LILCO's Motion gives no indication whether anybody on Long Island has ever heard of, much less
listens to, WPLR, WICC or WELI. The extent of the anonymity of LILCO's new EBS (particularly its new primary station) and the effect which that anonymity will have on the effectiveness of the EBS are significant issues that must be pursued with experts, independent investigation, and discovery -- not in the haste of a surprise summary disposition motion. Egg McMurray Affidavit, 1 11.15/
It should also be noted that there has been no FEMA /RAC review of LILCO's new EBS, nor, to the Governments' knowledge, has one been requested. Thus, neither FEMA nor the RAC has yet had an opportun!ty to analyze and comment upon LILCO's new scheme and the obvious emergency planning issues it raises.15/ In fact, 15/ LILCO also argues that its EBS should be accepted summarily because it is " separate from and supplementary to the State EBS that will also be activated during an emergency." Motion, at 13.
However, summary reliance on the New York State EBS has already been rejected because factual issues are in dispute. Egg Memorandum and Order, (September 17, 1987), at 31. Egg also Suffolk County, State of New York, and Town of Southampton Response to Board's Memorandum to Parties of October 8, 1987 (October 30, 1987), at 5. Further, LILCO's suggestion raises serious issues about the potential dissemination of inconsistent data which could cause confusion and hamper emergency response.
15/ In a letter transmitting the most recent RAC review of the LILCO Plan (Rev. 8), FEMA noted that while Rev. 8 referenced WALK as the lead station, WALK had in fact withdrawn by the time of the RAC review. For' asserted administrative reasons, FEMA rated element E.5 of NUREG-0654 as adequate in its review of Rev. 8, but went on to state:
However in any future reviews of the plan, element E.5 (and perhaps others) would be rated inadequate unless a suitable substitute station has been established and is supported with the necessary letter (s) of agreement.
(footnote continued)
no party (and presumably neither the Board nor FEMA) has received actual Plan revisions which would normally be the basis for fur-ther proceedings and an RAC review.
Finally, the Board should recognize that most of the materials appended to LILCO's Motion were completed well before November 6, when the Motion was served. For instance, the two engineering reports appended to the Motion are dated June 1987 and September 1987. Likewise, the letters of agreement with the new stations are dated July 27, 1987 (WPLR), August 3, 1987 (WICC) and February 12, 1987 (WELI). In fact, the only
" technical" document not completed months before the filing of the Motion is the telephone survey. In light of these facts, it is apparent that LILCO could have informed the Board and the parties of the details of its new plan. LILCO chose not to do so, but instead hid the facts from the Board and the parties until the filing of its Motion. Thus, any LILCO claims of possi-ble " delay" involved in reviewing LILCO's new plan are not well-founded. It was within LILCO's power to minimize any asserted delay through more timely disclosure of its new EBS. The Motion offers no explanation for LILCO's own delay.
f (footnote continued from previous page)
Letter dated December 30, 1986 from Dave McLaughlin, Deputy ,
Associate Director of FEMA to Victor Stello, Jr., Executive '
Director for Operations, NRC (emphasis added). Thus, FEMA review of the suitability of LILCO's new EBS is required. See alsQ Guide for the Evaluation of Alert and Notification Systems for Nuclear Power Plants, FEMA-Rep-10, November 1985 (setting forth review criteria but also noting (at page v) that each case must l
be " handled on an individual basis.") '
C. The Summary Disposition Motion As noted above, LILCO coupled the unveiling of its new EBS plan with the Motion at issue here. Despite the fact that it took LILCO five months to develop and unveil the new plan, the
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Motion requires a response in 20 days under the Commission's regulations. 10 CFR S 2.749(a).
In its Motion, LILCO declares that there are only three issues to be resolved: the adequacy of LILCO's documentation; the adequacy of the equipment of the participating EBS stations; and the adequacy of the coverage of the EBS system. Egg Motion, at 7. LILCO then claims that based on ce sin asserted
" undisputed" facts, all three issues should be resolved in LILCO's favor without any Government right to meaningful review, to file contentions, to retain experts, or to pursue discovery.
Egg Motion, at 7-14 and Statement of Material Facts which LILCO Contends Are Not in Dispute. LILCO also suggests, although it does not say so explicitly, that the new EBS plan contains only minor revisions and involves only the substitution of certain f ungible stations in an already-existing system.
LILCO takes these positions despite the fact that: (1) its EBS system has been substantially revamped with five Long Island stations removed and three relatively anonymous Connecticut sta-tions added; (2) LILCO has failed to submit Plan revisions or to
seek a RAC review of its new revisions, despite the fact that such review clearly is required; (3) the coverage of the EBS system is different from the former system, prompting LILCO to commission engineering reports to attempt to support its argument that its coverage is adequate; (4) the new EBS radio stations are located in Connecticut (posing questions about: (a) how many people listen to them; and (b) how many people would find emer-gency information coming from a Connecticut station to be author-itative and/or credible); (5) the entirety of its new EBS may have a negligible audience, and certainly has a much smalJer audience than LlLCO's prior Long Island-based EBS; (6) there is an admitted, but poorly described, flaw in AM nighttime coverage; (7) LILCO attempts to remedy this flaw by relying upon informa-tion from a poorly documented survey; (8) LILCO also attempts to
, remedy this flaw by reliance on an " informal alerting process" (i .e. , word of mouth) which was accepted with reservations by the Shearon Harris Licensing Board in a different context and for a different plant; and (9) LILCO relies also on the possible con-current use of a State EBS system (which raises questions of:
(a) the possibility of lack of coordination between LILCO and the State which, even where the parties act in good faith, could lead to conflicting information; and (b) the consistency of LILCO's position with the Board's September 17 ruling that reliance on the State EBS involves disputed facts).
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l-Furthermore, LILCO's Motion does not address the Commission's ruling in CLI-87-05 which plainly gives the Govern-ments the right to study the plan and file contentions before being confronted with a dispositive motion. Indeed, the Motion makes no attempt to justify this departure from normal and fair procedure.
III. DISCUSSIQH 1
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A. LILCO's Motion Must Be Rejected Because It Is Contrary To CLI-87-05, This Board's Orderly Procedures, and the Norms of NRC Practice.
LILCO's Motion should be rejected summarily because it is contrary to the instructions given by the Commission when it reopened the record for further proceedings in this matter. In CLI-87-05, the Commission held that contentions should not be considered or admitted "until LILCO provides updated information on public notification procedures which may elicit additional contentions." CLI-87-05, slip op., at 4. The significance of this language is that the Commission clearly contemplated an l
orderly proceeding in which: (1) LILCO submits its revised EBS ]
plan; (2) the Governments are given a fair opportunity to review it; and (3) contentions are then submitted related to that plan.
While the Commission saw "no gaan to going through the contention ,
I admissions process twice rather than once," id. , it plainly rec-
ognized that the appropriate procedures must be afforded to the Governments at least once. In short, CLI-87-05 leaves no room for LILCO's Motion at this stage of the reopened proceeding.
Notwithstanding the Commission's clear instructions, LILCO never once comes to grip with -- or even addresses -- the issue of how its Motion is inconsistent with CLI-87-05. Rather, it ignores the issue entirely. The Commission's instructions, however, cannet be ignored by LILCO or by this Board.
LILCO's Motion also disregards the plain intent of the Board to establish procedures governing litigation of the EBS matter and other remanded matters. That intent was reflected in the Board's request to the parties for their views on how to "prioritize" the remanded issues. Egg Notice to the Parties (August 31, 1987). LILCO attempts to avoid such orderly procedure, however, by filing a premature summary disposition motion which requires the parties and the Board to waste valuable resources addressing it.
Finally, LILCO's Motion is contrary to established NRC procedure. It is rudimentary, and the consistent practice in this case, that when new plans are submitted, there must be an opportunity for review, for focusing issues (through contentions or other means), and for discovery, if necessary, prior to j attempting to dispose of issues through summary disposition.
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Motions for summary disposition on LILCO's new EBS proposal may be appropriate at some time later in this proceeding, but that phase of the proceeding clearly has not arrived. Indeed, it is l not even close, unless there were to be a total disregard for due process and fair procedures. At a minimum, there must first be contentions which address this new proposal,12/ followed by discovery, before the issues can properly be framed for a ruling on the merits. By coupling the issuance of its new plan with an immediate motion for summary disposition, LILCO seeks to circum-vent proper, logical, and fair procedure. This practice cannot be condoned by the Board.
l LILCO's Motion also appears to suggest that the Commission intended to reopen the proceeding only to consider how earlier-admitted issues are affected by LILCO's new plan, and that the Governments are therefore barred from raising it, sues about LILCO's new plan that were not properly raised about the old plan. Egg Motion, at 7, n.ll. LILCO apparently relies on the language quoted at note 3, above, in support of this implied argument. It would make no sense, however, to interpret the Commission's language in CLI-87-05 to limit the issues which may be heard in the reopened proceeding to previously-litigated issues. Obviously, a new plan such as LILCO's is going to raise new issues which could not possibly have been raised previously 11/ Indeed, before contentions are filed, LILCO should be required to provide the parties and the Board with Plan revisions.
(e , c _, the effectiveness of Connecticut stations alerting Long Island residents of an emergency; the scope of coverage provided by a' system comprised of different, Connecticut-based radio stations). The Commission recognized this fact when it ruled that the Governments would be permitted to file contentions on j i
the new plan after having the opportunity to review it. If the Commission had intended only to permit litigation of previously-raised issues, it could merely have reinstated the Governments' j previous EBS-related contentions. Instead, it recognized that '
the new plan "may elicit additional contentions." CLI-87-05, slip op, at 4 (emphasis added).
It should be noted further that LILCO attempted to raise a similar argument in the Exercise proceeding. That argument was properly rejected by that Board. Egg October 3, 1986 Prehearing Conference Order (ruling that contentions regarding scope of the exercise were proper; fact that Commission language in CLI-86-11 could be construed more restrictively was immaterial because Commission did not have specific facts in front of it at the time of its ruling), at 2-9, reconsideration denied, December 11, 1986, interlocutory acoeal dismissed, ALAB-861, 24 NRC (March 2, ~087). Using the same analysis as the Exercise Board, this Board must also reject LILCO's arguments to the effect that l the NRC ruled upon f acts and arguments that it could not possibly l have known.
B. The Governments kree Not In a Position To Respond To LILCO's Premature Motion Given the scope of the changes to LILCO's new EBS plan, and the emergency planning consequences of those changes, it is !
impossible for the Governments to respond to the motion for sum-l mary disposition immediately af ter the plan (or, more accurately, a skeletal outline of the plan) is made public for the first time. LILCO has submitted an entirely new EBS plan based on new radio stations with broadcasting characteristics different from its earlier plan. The plan is unique in that the primary station is outside the State and outside of the realm of stations which Long Islanders are likely to listen to. The plan also raises questions, which must be more fully explored, about whether or not the EBS will be listened to. The multiple issues revealed by the new LILCO Plan are summarized in Section II.C of this Response. In light of these circumstances, it is clear that 10 CFR S 2.749(c) applies: the Governments cannot respond to the merits because LILCO's Motion is grossly premature; the appro-priate remedy is rejection of the Motion.
It took LILCO at least five months to develop and unveil the plan. It is absurd for the Governments to be e>.pected to be able to answer such a motion in 20 days. As noted above, it is appar-ent from the dates of the engineering reports and the letters of agreement attached to the Motion that LILCO could have provided i
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'the details of its new plan to the Governments much earlier.
LILCO chose-not to do so. It cannot now claim'that undue delay would result'from providing the Governments.with sufficient opportunity to conduct necessary analyses and reviews of-those
' materials. LILCO's own actions are the true cause of any asserted delay.
Furthermore, LILCO's' suggestion in its Motion that its new EBS has only undergone minor revision because only a few stations (which LILCO further suggests are fungible) have changed-in specious. The adequacy of the stations comprising an EBS --
e.g., their technical capabilities, how well the public knows of, and would respond to, those stations, etc. - go to the very heart of the adequacy of an EBS. When the' stations change, and particularly when.the changes are as radical as'LILCO has proposed, the consequences of those changes must be scrutinized.
LILCO apparently recognized this when it commissioned two engineering studies and a telephone survey to support its revised EBS. It cannot now be heard to argue that its revisions are so insignificant as to foreclose meaningful scrutiny by the parties and by this Board.
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I Governments require adequate time for expert review of the plan (once the details of the plan are provided), discovery, and per-haps independent investigation. In particular, the plan must be analyzed by: <
- l. Technical experts capable of analyzing LILCO's engineering reports, the significance of the gaps in LILCO's nighttime coverage, and the adequacy of the j equipment which LILCO intends to provide in the indefinite future;
- 2. Experts capable of judging whether LILCO's new stations are capable of performing as proposed;
- 3. Emergency planning experts capable of analyzing the )
l consequences of a station foreign to Long Island listeners being designated as the primary station;18/
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- 4. Experts capable of assessing the extent of listenership of all of the stations in LILCO's EBS, the impact of that listenership on the adequacy of LILCO's Plan, and 18/ As indicated above, preliminary reviews by emergency )
planning experts have begun, leading to the conclusion that i significant issues are raised. Further analysis and I
investigation is necessary, however, to define specifically the scope and content of the factual issues that exist.
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I whether LILCO's remaining small Long Island stations can compensate for the anonymity of the new Connecticut stations;
- 5. Survey experts capable of reviewing LILCO's telephone surveys.
Such reviews alone, however, will not enable the Governments to respond to LILCO's motion because discovery is required on, among other things:19/
- 1. The geographic and demographic scope of the gaps in LILCO's nighttime coverage;
- 2. The methodology used in LILCO's telephone survey;
- 3. The effectiveness of the " informal alerting process" and its applicability in the Shoreham EPZ;
- 4. The documentation and methodology underlying LILCO's engineering reports;
- 5. The adequacy of the equipment LILCO proposes to provides; 12/ Until experts can review LILCO's plan in detail, it is not {
possible to suggest that this is a complete list of issues. ;
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- 6. Whether the new stations' personnel have received or will receive appropriate training; l
- 7. . Whether there are any obstacles to the new stations performing their designated duties;
- 8. The facts underlying LILCO's agreements with each of the new stations.
In addition, the Governments are likely to need independent investigation of numerous matters, including:
I 1. The extent to' which WPLR and the other Connecticut stations are.known, or' listened to, by Long Island residents and the effects of the stations' anonymity on the adequacy of LILCO's EBS; I 2.. Whether the small Long Island stations. remaining in the EBS compensate for the< anonymity of LILCO's Connecticut stations;
- 3. Materials and information available publicly through the FCC, broadcasting industry groups or other such sources;
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- 4. The scope and quality of the coverage provided by LILCO's new EBS system.
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- 5. Whether a Connecticut-based EBS is or could ever be a t credible source of information regarding a shoreham emergency.
Until the Governments are given a reasonable opportunity for the analysis, discovery, and investigation outlined above, they can- '
not reasonably be expected to respond to LILCO's Motion.
The Commission's regulations provide for relief when circum-stances, such as those generated by LILCO's premature and improper filing of its Motion, make it impossible to respond to a motion for summary disposition. Pursuant to 10 CFR S 2.749(c):
Should it appear from the affidavits of a '
party opposing the motion that he cannot, for 1 reasons stated, present by affidavit facts essen- i tial to justify his opposition, the presiding !
officer may refuse the application for summary disposition or may order a continuance to permit i affidavits to be contained or mak.e such other j order as is appropriate and a determination to '
that effect shall be made a matter of record.
For all of the reasons stated above, the Governments are not in a position to be able to present by affidavit the facts essential to an opposition to LILCO's Motion. McMurray Affidavit, 1 12.
In light of the Commission's ruling in CLI-87-05, the need to I
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adhere to orderly procedures, the fact that the Governments have '
never before even seen LILCO's plan, the novelty of the plan, LILCO's delay in submitting the plan, and the need for review and l discovery, the appropriate remedy is plain. The Board should
" refuse the application for summary disposition."
IV. CONCLUSION LILCO's Motion is premature and not in accordance with the Commission's rulingLin CLI-87-05, this Board's intentions to impose order on ~these proceedings, ar.d the norms of NRC practice. .
Before the issues can properly be framed for disposal on the merits, the Governments must have an opportunity to review and analyze ~the new EBS scheme (including revisions to the LILCO Plan), file contentions and conduct discovery. Until that time, the Governments are in no position to respond definitively to the Motion. To the limited extent that the Governments have been able to review LILCO's new EBS, it is probable that genuine issues of material fact exist. Accordingly, the Motion must be denied.
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Respectfully submitted, k e ,
Lawrence C. Lanpher Christopher M. McMurray KIRKPATRICK & LOCKHART 1800 "M" Street, N. W.
South Lobby - Ninth Floor Washington, D. C. 20036-5891 Attorneys for Suffolk County
_n Fabian G. Pa% ming / /
Richard J. Zahnleuter Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 Capitol-Building Albany, New York 12224 Attorneys for Mario M. Cuomo, Governor of the State of New York AL&raL/L Stephen 4. . Latham /
Twomey, Latham & Shea Post Office Box 398 33 West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton l
November 30, 1987 l
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STATEMENT OF MATERIAL FACTS AS TO WHICH THERE EXISTS A GENUINE ISSUE TO BE HEARD ON MATTERS RAISED BY LILCO'S MOTION FOR
SUMMARY
DISPOSITION OF THE WALK RADIO ISSUE For reasons stated in the Governments' Response to LILCO's Motion, and the Af fidavit of Christopher M. McMurray, attached hereto, the Governments inform the Board that they are unable to determine which, if any, of LILCO's so-called " undisputed" facts are in fact in dispute. Further time for review and analysis of LILCO's new proposal, the framing of contentions, and discovery are required before the Governments will be in a position to do so.
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