View source for CLI-87-05, NRC Staff Response to Intervernors Motion for Reconsideration of Portions of CLI-87-05.* Motion to Reopen Issues on Util Agreement W/American Red Cross Re Congregate Care Ctrs Denied.Certificate of Svc Encl

{{Adams
| number = ML20235M135
| issue date = 07/15/1987
| title = NRC Staff Response to Intervernors Motion for Reconsideration of Portions of CLI-87-05.* Motion to Reopen Issues on Util Agreement W/American Red Cross Re Congregate Care Ctrs Denied.Certificate of Svc Encl
| author name = Reis E
| author affiliation = NRC OFFICE OF THE GENERAL COUNSEL (OGC)
| addressee name = 
| addressee affiliation = NRC COMMISSION (OCM)
| docket = 05000322
| license number = 
| contact person = 
| case reference number = CON-#387-3968, CON-#387-4027
| document report number = CLI-87-05, CLI-87-5, OL-3, NUDOCS 8707170069
| document type = LEGAL TRANSCRIPTS &amp; ORDERS &amp; PLEADINGS, PLEADINGS
| page count = 10
}}

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I UNITED STATES OF AMERICA                                                   87 JU!.15 P 3 :j g
                                                                                                                                                                         .j NUCLEAR REGULATORY COMMISSION r
BEFORE THE COMMISSION                                                t<
                - In the Matter of                                                                                               )
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Docket No. 50-322-OL-3
          ,;      4.ONG ISLAND LIGHTING COMPANY                                                                                  )
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              '' T                                                                                                               )   (Emergency Planning)                    ,
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                ' (Shoreham Nuclear Power Station,                                                                               )                                           !
Unit 1)                                                                                    )                                         i 4
NRC STAFF'S RESPONSE TO INTERVENERS' M.OTION FOR RECONSIDERATION OF PORTIONS OF CLI-87-05 Edwin J. Reis 3                                                                                                                             Deputy Assistant General Counsel                              !
July 15, 1987 8707170069 870710 PDR                       ADOCK 05000322 G                                   PI)R M0 1

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!                                                                                                               1 UNITED STATES OF AMERICA                                   :
l-                                              NUCLEAR REGULATORY COMMISSION
!  q BEFORE -THE COMMISSION
: l.                            .
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                 - In the Matter of                                    )                                       j l                                             )                                       f i         .             .,1.ONG ISLAND LIGHTING COMPANY                )      Docket No. 50-322-OL-3
        .[.,  ^/                .
                                                                       )       (Emergency Planning)
                    ' (Shoreham Nuclear Power Station,                 )
Unit 1)'                                  )                                        1 NRC STAFF'S RESPONSE TO INTERVENERS' MOTION FOR RECON $1DERATION OF PORTIONS OF CLI-87-05 1
: 1. INTRODUCTION On June 11, 1987, the Commission issued its Memorandum and Order, CLi-87-05, which granted in part and denied in part certain portions of interveners' motion to reopen the record in. this proceeding.       See "Suffolk County, State of New' York, and Town of Southampton Motion to Reopen Record," filed November 10, 1986. O           Interveners now request that the Commission reconsider that portion of CLI-87-05 which denied reopening on the issues of LILCO's agreement with the American Red Cross and the lack of congregate care facilities.       "Suffolk County, State of New York, and . Town of Southampton Motion for Reconsideration of Portions of a                     -1/      The Motion was originally filed with the Licensing Board, which denied the Motion for want of jurisdiction.       The interveners then W                                 refiled. the Motion ;with the Commission , attaching the substantive U-                                responses LILCO and the Staff had filed with the Licensing Board.
The Commission , in a November 19, 1986 Order accepted these papers, and permitted, but did not require, further papers to be filed. LILCO filed a supplemental answer with the Commission on November 21, 1986.

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<i                                             - 2,-
C Ll-87-05 , " filed June 30, 1987.        No valid grounds for the' recon-sideration of CLI-87-05 are presented in the motion and the motion should be denied.
i                                11. DISCUSSION
     ,. A. The Motion is Untimely While no provision of the regulations sets an express time limit within which to move for reconsideration of a Commission decision denying a motion, analogy to other Commission rules indicates that the subject motion is untimely.
Title 10 C.F.R. 5 2.771(a) states that reconsideration of a " final decision" by the Commission must be made within ten days of the date of such a decision.      Title 10 C.F.R.      5 2.786(b)(1) provides fifteen days                                                   .
after the decision of an Appeal Board to file a petition for review with the Commission. The policy evidenced in those rules establishing a 10 or 15 day limit for petitioning for reconsideration of an entire case or for taking an appeal is applicable to the- instant case which only requests reconsideration of a ruling on a motion to reopen the record. Any motion filed after 15 days of such a ruling is patently untimely.
The instant motion was filed nineteen days after the Commission's ruling in CLl-87-05. No good cause is given for this delay in the motion.
No new information was discovered in that time frame that would have 8
Justified    the  delay. In deed ,  as detailed   below,   the motion                                                    for reconsideration presents nothing new that could not have been brought                                                           4 before the Commission in a timely manner.
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B. The Motion Presents No New information Not Previously _ Considered The interveners do not offer any new information that was not before the Commission .when it issued CLl-87-05.               The motion . for i
reconsideration merely challenges the Commission's conclusions while                                                      j J
j ,, .' resenting no matter that the Commission did not already consider before issuing the decision.
: 1. No ground exists to reexamine the conclusion
                         ' that the Red Cross would aid in an emergency.                                                                  '
Contrary to what interveners state, the Commission's refusal to reopen the record on the issue of whether an agreement exists with the                                                      '
ARC is not solely based upon the Commission's " assertion" that the ARC letter of August 21,1986, "does not appear to erode" the findings of the PID. See Motion, at 2. Rather, the Commission looked at the issue of                                                 I whether the ARC would aid in an emergency and,. considering both an                                                        3 i
earlier letter from the ARC and the {{letter dated|date=August 21, 1986|text=August 21, 1986 letter}}, determined that the ARC would aid in an emergency.         See CLl-87-05, at 4, 6.                                            The Commission viewed the August 1986 letter as a reaffirmation of the ARC's                                                  l policy to respond in the event of any radiological or natural disaster.
The Commission thus decided that reopening the record was not likely to I
I lead to a materially different result in the proceeding regardless of whether the ARC's duty to respond was founded upon a technical letter                                                     ,

i e
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                                                                                                                          \
agreement or upon the ARC's national policy. Id. at 7.          See 10 C.F.R.
6 2.734(a)(3). U
: 2. No ground exists to reexamine the conclusion that the Red Cross would supply shelters.
The    Interveners    also  ask   the    Commission  to    reconsider    its
      .!                 _. determination not reopen the record to further consider the availability of congregate care centers or shelters for evacuees.        Motion at 8-12. The motion to reopen in regard to the congregate care centers was premised on the same letter of August 21, 1986 from the Nassau County Chapter of the American Red Cross, which had also premised Intervenor's attempt to I
reopen the recorci on the issue of whether the ARC would aid in an                             j emergency.      This letter indicated, inter alla, that some owners of such shelters were withdrawing permission for their use in the event of a                         <
The Commission denied reopening radiological emergency at Shoreham.
the record on two grounds.      First, the matter of the withdrawal of of the                ;
congregate care centers was not new when the motion to reopen the record was made in October 1986; but had been known to the Interveners at least since June 1985, long before the record was closed.          Therefore, as the Commission concluded the motion was untimely.           CLI-87-05 at 9.
See 10 C.F.R. 6 2.734(a)(1).        Second , the Commission found that the motion did not meet the third test in 10 C.F.R. 6 2.734(a) for reopening 2/
                             ~
The Staff supported the the original motion to reopen concerning the                   i meaning of the ARC letter on the ground that a hearing was                              )
necessary on the congregate care center matter and that it would be                      j well to clarify any ambiguity in the letter at that time. The                           ]
Commission has determined that a hearing is not needed on the                            j congregate care center matters, and the Staff's predicate for                          1 supporting a reopening to clarify the meaning of the ARC letter no longer exists.
1 1
__           ____________-______a

  ,                                                              of a record which requires that a movant "must demonstrate that a materially different result would be or have been likely had the newly proffered evidence been considered initially."     Id.
Under Duke Power Co. (Catawba Nuclear Station, Units 1 and 2),
C Ll 19,    17 NRC 1041, 1049-51      (1983), one must raise late-filed
     , ,) 7 contentions, such as the ones sought to be raised in this motion to reopen the record, promptly after one fearns of the facts which form the basis of such a contention and not wait until the facts are set forth in official documents.      Here the Interveners knew of the facts predicating the motion before the Partial Initial Decision was issued in August 1985. U        There was no cause to wait until the Nassau County Chapter of the ARC formally stated these matters in its August 1986 letter before a motion was filed to reopen the record and submit a new contention on the availability of congregate care centers.        The motion to reopen the                           q record in October 1986 was untimely, and the motion was rightly denied by virtue of 10 C.F.R. 6 2.734(a)(1) alone.       See Catawba, supra.
The Commission further concluded that the motion to reopen on the congregate care center issue does not demonstrate that a different result would have been likely even if the information upon which the motion was predicated had been newly learned.           C LI-87-05, slip op. at 9. The Licensing Board knew that the agreements for shelters were revocable and                                 ,
1
              -3/    The issue of whether the Licensing Board accepted the letters from                                i the congregate care facilities into evidence in 1985 is not germane.                              !
It is clear by the Interveners offering the letters into evidence that                            l they knew of the letters.       The matters in the letters therefore                              ;
cannot be claimed to be newly discovered facts which could lead to a                              l reopening of the record late in 1986.                                                             l l

l 1
      .                                                                                                                                                                                                               l that   the    shelters   listed   by   the   ARC   could  become   unavailable.
LBP-85-31, 22 N RC at 421-23.        The Board further concluded that it could be expected that the ARC would find other shelters should any on its list become unavailable.       Id. The letter submitted does not demonstrate that
                  ,                ,a different conclusion would be likely even if, as stated in the letter,      "A
          . .;            ..a/ significant number of the owners of these facilities have informed us that their facilities would not be permitted for use as relocation centers in the event of a radiological emergency at Shoreham."           The Licensing Board implicitly recognized that this could occur in its decision and the proffered letter does not demonstrate that a different result would have been likely had the letter been considered initially.
Thus, although the Staff initially supported the motion to reopen the record on the congregate care center issue, the Commission's disposition of the matter on the ground of timeliness in view of the time when the factual underpinnings of the motion were known to Interveners, and in view of the Licensing Board's recognition that some relocation centers would become unavailable while others would be found, is reasonable.         No cause to reconsider Commission's disposition of this matter exists.          U
                                     ~4/   Interveners arguments with respect to the requirement of 10 C.F.R.
9 50.47(a)(2) are also ill-founded. See Motion at 6-7, 11-12. As the Regulation states, FEMA's findings are rebuttable presumptions and are not binding.       The Commission considered FEMA's assessment in ruling on the motion to reopen, but found that the subsequent I                                  ARC letter did not evidence any change in what the ARC would do in the event of a radiological emergency at Shoreham. Similarly, the Commission reached a different conclusion in regard to the notification that some shelters would not be available. The NRC did not in fact " substitute" its judgment for that of FEMA, but made the determination prescribed to it under 10 C.F.R. 5 2.734(a)(3) of ascertaining whether the proffered letter and FEMA's assessment would lead to a different result.

i c                                                                                                                     Ill. CONCLUSION.
For  the. reasons     stated  herein , .the   Commission should  deny intervenor's motion Lfor' reconsideration.                                       ,
                                                                                                            )
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Edwin' J. eis Deputy Assistant General Counsel    i Dated at Bethesda, Maryland this 15th day of July,1987

Y, 3% R*ip UNITED STATES OF AMERICA                                                           ,
NUCLEAR REGULATORY COMMISSION                                                          i 87 JUL 1h P3 ;I9
                                                                                                                           -l BEFORE THE COMMISSION crn.
DGUi'N  N ",
3 In the Matter of                        ).                                                                  !
                                                         )
LONG ISLAND LIGHTING COMPANY            )        Docket No. 50-322-OL-03 i
                                                         )         (Emergency Planning)                                      ;
V g(Shoreham Nuclear Power Station,            )                                                                   i
      ,,            Unit 1)                              )
i CERTIFICATE OF SERVICE l hereby certify that copies of "NRC STAFF'S RESPONSE TO INTERVENERS' MOTION FOR RECONSIDERATION OF PORTIONS OF CLl-87-05" in the above-captioned proceeding have been served on the following by deposit                                    ~
In the United States mall, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail                                         i system, this 15th day of July,1987.                                                                           ,
Morton B. Margulles, Chairman
* Joel Blau, Esq.
Administrative Judge                          Director, Utility Intervention Atomic Safety'and Licensing Board              Suite 1020 U.S. Nuclear Regulatory Commission            99 Washington Avenue Washington, DC 20555                          Albany, NY 12210 Jerry R. Kline*                                Fabian G. Palomino, Esq.
Administrative Judge                           Special Counsel to the Governor Atomic Safety and Licensing Board             Executive Chamber U.S. Nuclear Regulatory Commission            State Capitol Washington, DC 20555                          Albany, NY 12224 Frederick J. Shon*                            Jonathan D. Feinberg, Esq.
Administrative Judge                           New York State Department of Atomic Safety and Licensing Board                Public Service U.S. Nuclear Regulatory Commission            Three Empire State Plaza Washington, DC 20555                           Albany, NY 12223 Philip McIntire                               W. Taylor Reveley lil, Esq.
Federal Emergency Management                  Donald P. Irwin, Esq.
Agency                                      Hunton 6 Williams 1        26 Federal Plaza                               707 East Main Street Room 1349                                     P.O. Box 1535 New York, NY 10278                            Richmond, VA 23212 Douglas J. Hynes, Councilman Town Board of Oyster Bay Town Hall Oyster Bay, New York 11771

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.                                              2 Stephen B. Latham, Esq.               Herbert H. Brown, Esq.
Twomey, Latham & Shea                 Lawrence Coe Lanpher, Esq.
Attorneys at Law                      Karla J. Letsche, Esq.
33 West Second Street                 Kirkpatrick & Lockhart Riverhead, NY 11901                  South Lobby - 9th Floor 1800 M Street, NW Atomic Safety and Licensing           Washington, DC 20036-5891 Board Panel
* UlS. Nuclear Regulatory Commission    Jay Dunkleberger
       ') _b'eshington, DC 20555                 New York State Energy
    '~
Office Ntomic Safety and Licensing           Agency Building 2 Appeal Board Panel
* Empire State Plaza U.S. Nuclear Regulatory Commission   Albany, NY 12223 Washington, DC 20555 Spence W. Perry, Esq.
Martin Bradley Ashare, Esq.           General Counsel Suffolk County Attorney,-             Federal Emergency Management H. Lee Dennison Building                 Agency Veteran's Memorial Highway            500 C Street, SW Hauppauge, NY 11788                  Washington, DC 20472 Dr. Monroe Schneider                  Robert Abrams, Esq.
North Shore Committee                Attorney General of the State P.O. Box 231                            of New York Wading River, NY 11792                Attn:    Peter Eienstock, Esq.               L Department of Law Ms. Nora Bredes                       State of New York Shoreham Opponents Coalition          Two World Trade Center 195 East Main Street                 Room 46-14 Smithtown, NY 11787                  New York, NY 10047 Anthony F. Earley, Jr.                William R. Cumming, Esq.
General Counsel                      Office of General Counsel Long Island Lighting Company         Federal Emergency Management 175 East Old Country Road               Agency Hicksville, NY 11801                 500 C Street, SW Washington, DC 20472 Dr. Robert Hoffman Long Island Coalition for Safe       Docketing and Service Section*
Living                            Office of the Secretary P.O. Box 1355                        U.S. Nuclear Regulatory Commission Massapequa, NY 11758                 Washington, DC 20555 I
Mary M. Gundrum, Esq.                 Barbara Newman New York State Department of Law     Director, Environmental Health 120 Broadway                         Coalition for Safe Living 3rd Floor, Room 3-116                . Box 944 New York, NY 10271                   Huntington, New York 11743 1        -
Edwin J.      'eis Deputy      ssistant General Counsel i>}}