ML20213F487
| ML20213F487 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 10/15/1986 |
| From: | Latham S, Mark Miller, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20213F468 | List: |
| References | |
| OL-3, NUDOCS 8611140230 | |
| Download: ML20213F487 (27) | |
Text
e October 15, 1986 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensino Board
)
In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL ) (Emergency Planning)
(Shoreham Nuclear Power Station, )
Unit 1) . )
)
SUFFOLK COUNTY, STATE OF NEW YORK AND TOWN OF SOUTEAMPTON MOTION TO REOPEN RECORD Pursuant to 10 CFR S 2.734, Suffolk County, the State of New York and the Town of Southampton (hereinafter, the " Governments")
hereby move to reopen the evidentiary record in this proceeding for the purpose of considering new evidence relating to three offsite emergency planning issues. These issues are as follows:
- 1. The withdrawal of WALK Radio as the primary emergency broadcast system ("EBS") station, responsible, for activating tone alert radios and broadcasting all EBS messages under the LILCO Plan; i
8611140230 DR 861110 ADOCK 05000322 PDR
(
- 2. The lack of any agreement from the American Red Cross to LILCO indicating either the ability or willingness to provide emergency services or assistance in the event of a Shoreham emergency, as assumed and required under the LILCO Plan; and
- 3. The lack of congregate care center facilities for use in a Shoreham emergency under LILCO's Plan, now acknowledged by the Nassau County Chapter of the American Red Cross, and the Red Cross' inability and refusal to agree, identify, designate, open, or operate such centers in a .
Shoreham emergency.
The factual bases which demonstrate that the criteria of 10 CFR S 2.734(a) have been satisfied and the evidence which document the need for re~ opening are set forth in the attached Affidavit of Michael S. Miller, including the attachments thereto, and are discussed in Section II below.
I. Backaround This motion to reopen is necessitated by recent events which make clear that provisions and assumptions in LILCO's Plan, as well as evidence previously submitted by LILCO, which were relied upon by this Board in ruling in LILCO's favor on certain issues -
in this proceeding,, are no longer true. The facts concerning LILCO's proposed EBS and " prompt notification" systems, the role of the Red Cross, and the existence of congregate care facilities 9
(
- have all materially changed from those previously "found" by this Board, such that a different result would almost certainly have been reached by the Board if, at the time of its decision, it had been aware of the facts which now exist. The Governments submit that the reopening criteria are met with respect to each of the three issues identified above. The following discussion places these issues and the events which triggered this reopening motion in proper context.
A. WALK Radio ,
Under the LILCO Plan, notification to the public in the ,
event of a Shoreham emergency is commenced by activating 89 fixed sirens located throughout the 10-mile EPZ. This siren system is designed to provide only initial notification, however; the desired response is for people to obtain information and instruction via "EBS" messages broadcast by local radio stations.
Under the LILCO Plan, the public is to be informed as to what, if any, protective response (s) are recommended by LILCO by way of such radio broadcasts. For example, if evacuation were I
recommended, participating radio stations are expected to i broadcast information regarding what zones or population groups should leave the area. Ste Appendix A at IV-2 through -3.
Under LILCO's Plan, WALK Radio station (97.5 FM, 137; AM) is the " lead radio station for disseminating information to the public" since it is "the most powerful broadcasting station in i
the area and simultaneously broadcasts on AM and FM." Id. at ;
t
(
0 IV-3. The LILCO Plan flatly states that WALK is the " primary direct communication link to the public" in the event of a Shoreham emergency. OPIP 3.8.2 at 1. Thus, LILCO's proposed public information materials, draft EBS messages, sample press releases, and instructions to LERO workers include the ir.struction that the public is to listen to WALK Radio for information about a Shoreham emergency and protective action advisories. Egg, e.g., Plan at 3.3-4 through 3.3-5, 3.8-1 through 3.8-6; OPIPs 3.3.4, 3.8.1, and 3.8.2.
The LILCO Plan also relies upon WALK Radio to activate LILCO's emergency broadcast system -- a system which can, in .
fact, only be activated by WALK. OPIP 3.8.2 at 2. And, it is only after WALK activates the EBS and begins broadcasting LILCO's emergency messages that any of the other radio stations which have ag. reed to participate in LILCO's local EBS network can retransmit such messages on their frequencies. Egg Plan at 2.2-2 through -2a. Thus, the Plan states:
LILCO has arranged for the prompt notification of the public through the voluntary participa-tion of local radio stations in accordance with 43 CFR Section 73.913(b) and 73.935(a).
WALK-FM Radio Station provides Emergency Broadcast System (EBS) message transmission capabilities in support of the public notifi-cation efforts of LERO. Upon notification from LERO, WALK-FM Radio activates the EBS .
, message control system and broadcasts to the generalepublic, information supplied by the LERO Coordinator of Public Informacion.
Numerous other radio stations . . . have agreed to retransmit the message on their frequencies.
l 1
i I
r Ld WALK Radio is also relied upon by LILCO to activate the tone alert radios which LILCO has provided to special facilities with
" unique evacuation problems," such as schools, hospitals, nursing homes, handicapped residences, and major employers. These tone alert radios are designed to be automatically activated by WALK's broadcast signal and, upon activation, would indicate that an incident has occurred at Shoreham (even if such incident would not require setting off the LILCO siren system). Egg Appendix A at IV-3, -166a, -170, -172, and -173; Plan at 3.3-4, 3.4-6.
In light of the foregoing, it is clear that WALK Radio is .
i the central element in the LILCO Plan's so-called " prompt notsfication system" (i.e., sirens, local radio stations, tone alert radios). Egg Plan at 3.4-6.
By letter dated September 16, 1986 (a copy of which is Attachment A to the Affidavit of Michael S. Miller filed in support of this reopening motion), LILCO informed the NRC and the Governments that WALK Radio was no longer willing to participate in the LILCO Plan. As discussed in Section II.A below, WALK had informed LILCO of its withdrawal by letter dated August 8, 1986.
A copy of the WALK letter is in Attachment B to the Affidavit of Michael S. Miller. WALK's withdrawal as the primary station in LILCO's EBS, and its decision to cease being a participant in LILCO's Plan, is a highly significant change in circumstances which necessitates the reopening requested herein.
The significance of WALK's withdrawal is evidenced not only by the numerous references to, and reliance upon, WALK activities in the LILCO Plan itself (as noted above), but also by the findings and concipsions made by this Board in its Partial Initial Decision ("PID"). Lonc Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-85-12, 21 NRC 644 (1985).
For example, in ruling for LILCO on EP Contention 20 (which alleged that LILCO's reliance on WALK-FM and AM to broadcast EBS messages, although WALK-AM does not operate at night, would lead to the result that persons without FM radios would not receive EBS messages), the Board found that WALK Radio is "obviously the .
key station [under LILCO's Plan]" and concluded that " WALK-AM, and other backup stations, are all prepared to broadcast EBS messages at any time of day." 21 NRC at 764 (emphasis added).
Similarly, in ruling for LILCO on EP Contention 57 (which challenged LILCO's reliance on tone alert radios to notify and warn special facilities of a Shoreham emergency), the Board expressly acknowledged that if WALK-FM were unwillinc or unable to broadcast, LILCO's tone alert radio system would fail to function. See 21 NRC at 760.
Clearly, WALK's refusal to serve as the central element in LILCO's proposed prompt notification system creates a set of .
facts dramaticallyedifferent from those which existed during the litigation of LILCO's Plan which resulted in the Board findings cited above. In that litigation, all parties and the Board
- - . - --___y _ . _ _ - _ -- ,_ ,. -, f
~
assumed that WALK Radio would be the central element of the EBS, that it would be the primary broadcast station, and that it would be willing to perform all the functions assigned to it in the LILCO Plan, since even the earliest versions of LILCO's Plan asserted that WALK had agreed to perform all such functions.
WALK's withdrawal, however, has left a substantial void in LILCO's Plan. It has also rendered invalid the factual premises of the previous litigation a'nd the Board's findings, and thus necessitates a reopening of the record.
B. The American Red Cross The LILCO Plan, upon which this Board's prior decision was based, provides that the Nassau County Chapter of the American Red Cross (" ARC" or " Red Cross") is relied upon to perform many functions at both the so-called " reception center," to which evacuees would be initially directed for registration, monitor-ing, decontamination, and other assistance, including direction to so-called " congregate care centers," and at such congregate care centers, where evacuees would be fed, housed, and cared #
as required. Specifically, according to the LILCO Plan, the Red Cross is expected to " provide staff at the reception center . . .
(who] will provide assistance to evacuees, and assign those who
! have a need for shelter to a congregate care center." Reception center " assistance >' is to include registration of evacuees. The Red Cross is also expected to identify, designate, open and operate congregate care centers for the sheltering of Shoreham
- evacuees, and at such centers Red Cross staff are expected to provide information, counselling, food, clothing, and nursing and medical services to evacuees. Plan at 2.2-2, 3.6-7a, 4.2-1, 4.8-1. LILCO's Plan also assumes that an ARC representative would be present at the LILCO EOC. Plan.at 2.2-2.
EP Contention 24.P alleged that although LILCO relies upon the ARC to provide extensive services at reception centers and congregate care facilities, LILCO had no agreement with the ARC to assure that such services in fact would or could be provided.1 In its Concluding Partial Initial Decision ("CPID"), this Board found for LILCO on Contention 24.P. Egg Lonc Island Lichtino Co. .
(Shoreham Nuclear Power Station, Unit 1), LBP-85-31, 22 NRC 410, 416-17, 419-20 (1985). The Board found that "the Red Cross has agreed in writing to provide Red Cross staff to assist evacuees and to direct evacuees to congregate care centers. . . . [T]he agreement between LILCO and the Red Cross is adequate to support our conclusion that the Red Cross will provide assistance and information to evacuees at the Coliseum." CPID, 22 NRC at 416-
- 17. In addition, it found that "the letter of agreement between LILCO and the Red Cross is adequate to provide reasonable assurance that the Red Cross will' perform the duties upon which LILCO relies in its emergency plan." Id. at 420.
- 1 1 At the time the contention was drafted, LILCO proposed to have only " relocation centers" which would serve as both
" reception" and " congregate care" facilities.
The Board's findings concerning the Red Cross were based upon a letter, dated July 25, 1984, from Frank Rasbury, then Director of the Nassau County Chapter, to LILCO (Cordaro 11 al.,
ff. Tr. 14,707, Att. 1) which, in the Board's opinion, provided reasonable assurance that the ARC would perform all the functions relied upon by LILCO in its Plan. In addition, the Board reasoned that testimony provided by Mr. Rasbury on LILCO's behalf was sufficient to support a conclusion that the ARC would identify, locate, and staff congregate care facilities as well as provide shelter, staff, food,' beds, medical care, counselling and other aid as necessary at reception and congregate care ,
facilities during a Shoreham accident. 22 NRC at 419, 422-23.
Not unlike WALK Radio's withdrawal from LILCO's Pl'an, the factual underpinnings of the Board's earlier rulings regarding the ARC and EP Contention 24.P have dramatically changed and compel a reopening of the evidentiary record. Indeed, apparently on August 21, 1986, LILCO was informed that there is no aereement by the Nassau County Chaoter of the ARC to orovide the emeroency services and assistance relied upon by LILCO in its Plan. Sgg letter, dated August 21, 1986, from Walter Oberstebrink, the Nassau County Chapter Chairman, to LILCO, which is Attachment C to the Affidavit of Michael S. Miller. Sgg also Plan, App. B (Rev. 8). LILCO did not advise the Governments or this Board of this highly signif,icant development until on or about September 18, when Revision 8 of its Plan was served. The present Chairman of the Nassau County Chapter subsequently confirmed that there is e
1 - _ __ __ - __ _ - .
no agreement between his organization and LILCO regarding implementation of LILCO's Plan, and called into question LILCO's, and apparently the Board's, interpretation of the testimony of Mr. Rasbury. Eeg Newsday article entitled " Red Cross: We Can't Help on Shoreham," dated September 30, 1986, which is Attachment l D to the Affidavit of Michael S. Miller.
The new set of facts brought about by the Red Cross state-ment that there is in fact no agreement between it and LILCO concerning the Red Cross' response to a Shoreham accident requires a reopening on EP Contention 24.P; the dispositive fact relating to that contention has now been unequivocally enunciated .
by the Red Cross, and that fact is directly contrary to the l
Board's earlier findings.
C. Concrecate Care Centers Under LILCO's Plan, the Nassau Chapter of the ARC is relied upon "to open and operate as many congregate care centers as necessary" to handle Shoreham evacuees. Plan at 3.6-7a.
LILCO asserts in its Plan that the Nassau County Chapter has made all necessary arrangements for the use of congregate care facilities and, at the time of a Snoreham accident, would designate the centers to be activated. Id. at 4.8-1. Activated centers, according to LILCO, would come f rom a list of f acilities -
attached to the previously mentioned July 25, 1984, letter from ,
the Nassau County Chapter to LILCO. See Cordaro et al., ff. Tr.
e
14,707,'Att. 1. The LILCO Plan asserts that " Letters of Agreement with . . . the congregate care centers are maintained
, by the ARC." Plan at 2.2-1.
Based upon such LILCO representations, this Board concluded in its CPID that LILCO's reliance on the Nassau County Chapter of the ARC to designate congregate care centers for sheltering Shoreham evacuees was "a satisfactory means of operation that meets the legitimate needs of all concerned." 22 NRC at 422.
Specifically, the Board made the following findings to support
- its approval of LILCO's proposed scheme to provide necessary shelter.and " congregate care" services:2 .
"A lis~t of the organizations with whom agreements are maintained for the congregate care centers is attached to the July 25, 1984 letter of agreement between LILCO and the Red Cross." (CPID, 22 NRC at 422).
-- "At the time of an emergency, evacuees arriving at the reception center and needing shelter will be directed by the Red Cross to congregate care centers." (Id.).
"Up to 48,000 persons could be sheltered within the ,
facilities that have been identified by the Red Cross."
(Id.).
' -- "The Board also concludes that it may place its confidence in the Red Cross for the assessment of adequacy of the shelters it has identified." (Id. at 423). .
l --------------------
l 2 These Board conclusions were made in ruling upon EP Contention 75, which alleged that there is no assurance that the relocation centers designated by LILCO will be of sufficient capacity to provide necessary services for the number of evacuees that would require them. This Board, in dealing with LILCO's l
January 1985 Motion to Reopen the Record to -identify the Nassau
! Coliseum as a new reception center, interpreted Contention 75 as I challenging the adequacy of congregate care centers designated by the Red Cross to serve the needs of, and to collectively shelter, Shoreham evacuees. Eeg 22 NRC at 420.
l l
,--ww-w - - *- --,v- * -
w- s-+ - -4
-- "In the event that some agreements (between shelter facilities in Nassau County and the Red Cross) are not confirmed, we would expect that the Red . Cross would find other suitable facilities according to their normal procedures, that would be able to shelter the anticipated number of evacuecs." (14.).
"The Board finds that the facilities to be made available are adequate and that the Red Cross has adequate procedures to proside others if needed."
(14-).
The recent letter from the Nassau County Red Cross renders all these Board findings invalid because their factual predicates are no longer true. .
In its August 21, 1986 letter to LILCO (111 Attachment C to the Affidavit of Michael S. Miller), the Nassau' County Chapter ARC Chairman stated:
In the (July 25, 1984] letter to you, the Chapter also appended a list of facili-ties normally relied upon by the Red Cross to provide space for relocation (congregate care) centers in the event of a natural disaster. It is our understanding that our letter and list of facilities was submitted to the Nuclear Regulatory Commission in the Shoreham licensing proceeding. 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. Others have advised us that their facilities have been withdrawn for use in any event either natural or radiological.
- Thus, as of this bime, the fact's are: (1) the Red Cross has not agreed to identify, designate, open, or operate congregate care centers in the event of a Shoreham emergency; and (2) in any e
r , - - - - - , - - - - - - - --- -- - - - - - -
\
event, the facilities to which LILCO -- and this Board --
previously assumed evacuees could and would be sent in the event of a Shoreham accident, are not available for that purpose.
Indeed, the facilities in the June 25, 1984 Red Cross list, once relied upon by LILCO and this Board to shelter evacuees, have themselves advised LILCO that no agreements for their use as congregate care centers exist. Unequivocal statements from school districts, churches a'nd other facilities to this effect were presented to this Board on September 26, 1986, when Mr.
Howard M. Koenig, the Superintendent of Schools of the East Meadow Union-Free School District, testified at the Mineola, New .
York, limited appearance sessions. Egg Tr. 16,999-17,009.
Letters from 34 facility owners, collectively representing almost all the congregate care centers relied upon by LILCO as being available for designation by the Red Cross, were attached to Superintendent Koenig's statement. These letters make clear that, contrary to LILCO's Plan and the findings made by this Board in its CPID, there are no agreements between the Nassau County Chapter of the ARC or LILCO and shelter facilities in Nassau County which indicate their availability to serve as congregate care centers in the event of a Shoreham emergency.
II. Bases for Reecenino The criteria for reopening an evidentiary record have recently been codified by the Commission in 10 CFR S 2.734. See 51 Fed. Reg. 19,535, 19,539 (May 30, 1986). The proponent of a motion to reopen must satisfy three criteria:
- 1. The motion must be timely, except that an excep-tionally grave issue may be considered in the discretion of the presiding officer even if untimely presented.
- 2. The motion must address a significant safety or environmental issue.
- 3. The motion must demonstrate that a materially different result would be or would have been likely had the newly proffered evidence been considered initially.
Id. at 19,539 col. 3. The Governments submit that the above three criteria are satisfied with respect to each of the three issues raised by this motion.'
A. Timeliness First, a motion to reopen must be timely. This motion satisfies this criterion in all respects.
As noted above, it was not until September 16, 1986, that LILCO chose to inform the Board and the Governments of WALK's withdrawal as the primary broadcast station under LILCO's Plan; the Governments received that letter on September 17.
Furthermore, it was not until on or about September 24 that the Governments received a copy of the actual letter from NALK notifying LILCO of the station's withdrawal and the reasons therefor. Even then, the copy was received not from LILCO, but rather from the NRC's Docketing and Service Branch, which served the letter because it had been sent by WALK Radio itself to the NRC. It is noteworthy that the WALK letter in question bears the date of August 8, 1986, and thus was presumably in LILCO's r
1
.,.. _ . - - . _ _ , - - . . - _ . . - . _ , . - . _ . , ,.,-.~.,.._,,__,__m..,-,._.._,...__
possession for almost six weeks before LILCO chose to notify either this Board or the other partiets to this proceeding of WALK's withdrawal. The Governments have acted promptly in filing this motion within one month after receiving notice from LILCO of WALK's withdrawal.
The Red Cross letter which forms the basis for the other two issues raised in this motion was served on the Governments with Revision 8 of the LILCO Plan, on September 18, 1986. That letter is dated August 21, 1986. Again, it must be assumed that this letter was in LILCO's possession for almost a month before LILCO chose to notify either the Board or the other parties that the .
Red Cross (a) had disavowed the existence of any agreement with LILCO to open and operate congregate care centers or otherwise to provide emergency services or assistance in the event of a Shoreham accident, and (b) had informed LILCO that the facilities earlier relied upon to be congregate care centers were not available for that purpose. The Governments have acted promptly in filing this motion less than one month after receiving from LILCO the information upon which it is based.
In addition, and also pertinent to the timeliness issue, I there is no danger here that any party will be surprised or otherwise prejudiced by this motion. As noted, representatives of LILCO have been aware of WALK's withdrawal and the August 21 Red Cross letter Ear longer than the other parties to this proceeding'. LILCO chose to withhold such information and cannot now be heard to complain about the consequences of such action.
i l
I i ,
B. Sionificant Safety Issue A motion to reopen must also address a "significant safety or environmental. issue." 51 Fed. Reg. 19,539 col. 3. Certainly, there can be no qu'estion that the matters discussed herein meet this criterion. This Board, for example, previously ruled in response to a January, 1985 LILCO motion to reopen the record on reception center issues that the mere identity of LILCO's relocation center " presents a significant safety issue."
Memorandum and Order Granting.LILCO's Motion to Reopen Record, at 7-8 (Jan. 28, 1985). The logic of that ruling must apply with at least equal force here. Indeed, in the instant case, it is not merely the identity of a facility which is at issue. Rather, the questions which must be asked include the following:
J
-- Whether LILCO's prompt notification system, including the transmission of EBS messages and information to the public, and the activation of tone alert radios, can be implemented without WALK Radio which, as the most powerful broadcasting station on Long Island, is relied upon by LILCO as the " primary direct communication link to the public" (sgg, e.o., Plan at 3.4-6; OPIP 3.8.2).
l
-- Whether LILCO's proposed reception center and congregate care center schemes can be implemented --
' and, therefore, evacuees' registered, monitored, i
decontaminated, fed, housed, counselled, and otherwise cared for -- without an agreement by the Red Cross to provide emergency services and assistance in the event
of a Shoreham accident, including the opening and operation of congregate care centers, and provision of information, counselling, food, clothing, nursing and medical services, as assumed by the LILCO Plan (ggg, e.a., Plan at 2.2-2, 3.6-7a, and 4.8-1).
-- Whether LILCO can provide reasonable assurance that its Plan can be implemented and the safety of the public will not be imperiled if, contrary to LILCO's assertions (agg, e.a., Plan at 4.8-1), there are no congregate care centers available for evacuees in the event of a Shoreham accident. .
The Governments submit that each of these questions must be answered in the negative. Moreover, these questions, raised by the new facts.which give rise to this motion, are undisputedly of substantial safety significance for two reasons. First, each cne raises a significant new void in the LILCO Plan, caused by the withdrawal, or acknowledged non-existence, of elements of LILCO's own Plan which, by the words of that Plan, are essential to its implementati.<n.3 Second, each one deals with an element of emergency preparedness required by the regulations, e.o., 10 CFR 3 Moreover, with respect to the third issue, it must be noted that the availability of " congregate care centers" is critical to LILCO's overall relocation scheme, including its plans for
- e registering, monitoring, and decontaminating evacuees. If some kind of " congregate care" or relocation f acilities are not provided for evacuees in need of a place to stay after they have been forced to leave their homes, there would be massive overcrowding at monitoring and decontamination locations (since evacuees would have no place to go) making it impossible for monitoring and decontamination functions to be performed as planned.
SS 50.47(b)(3), 50.47(b)(5), 50.47(b)(6), 50.47(b)(8),
50.47(b)(10), 10 CFR Part 50 Appendix E S IV.D.3, NUREG 0654 SS II.A.3, C.4, E.5, E.6, F, J.9, J.10, and Appendix 3 thereto.
Accordingly, the Governments submit that it is beyond dispute that the issues raised in this motion constitute serious safety issues.
C. Different Result Would Be Likelv Finally, a motion to reopen must show that a "different result would be or would have been likely had the newly proffered evidence been considered initially." 51 Fed. Reg. 19,539 col. 3. .
This criterion is satisfied with respect to each of the three issues raised.
First, in its prior rulings, this Board determined that:
-- WALK Radio is the " key station" in LILCO's EBS and that EP Contention 20 was without merit because, inter alia, WALK-AM "(is] prepared to broadcast EBS messages at any time of day" (PID, 21 NRC at 764);
-- Contrary to the assertions of EP Contention 24.P, the July 25, 1984 letter of agreement between LILCO and the ARC "provides reasonable assurance that the Red Cross will perform the duties upon which LILCO relies in its emergency plan" (CPID, 22 NRC at 420); and
-- EP Contention 75, interpreted by the Board to challenge the adequacy of congregate care centers designated by the Red Cross, including the capability of such facilities to serve the needs of and collectively shelter 6horeham evacuees, was without merit (CPID, 22 NRC at 420, 422-23).
Clearly, a "different result" than was previously reached by the Board with respect to EP Contentions 20 and 24.P is likely ---
indeed, required -- under circumstances where there is no longer any agreement between LILCO and either WALK Radio or the Red Cross regarding implementation of the LILCO Plan. Similarly, there must be a "different result" reached by the Board on EP Contention 75 (concerning the adequacy of congregate care centers) given the acknowledgement by the Red Cross that the congregate care centers assumed to be available for sheltering evacuees in the event of a Shoreham accident in fact are not available for that purpose. .
Second, the Board also made more general findings which indicate that a different result would be likely in light of the new circumstances which now exist. Specifically, the Board found in the PID that LILCO's Plan will provide adequate notification and information to the public, in ruling for LILCO on the set of contentions concerning LILCO's public notification and informa-tion proposals (EP Contentions 55-59, 20, 18, 21.C). Seg PID, 21 NRC at 756-68. Because the availability and willing participa-tion of WALK Radio is the central factual predicate to the operation of LILCO's entire public notification and emergency information system, the Board's findings that the LILCO Plan complies with the requirements of 10 CFR S 50.47(b)(4),
50.47(b)(5), 50.47(b)(6), 50.47(b)(7), 50.47(b)(10), 10 CFR Part ,
,. . - - . . , - - - - . - - - . , , , - - - - . n , , - - . - , ,
50 Appendix E S IV.D, and NUREG 0654 SS II.E.5, E.6, G.1, G.2, J.9, J.10, and Appendix 3 thereto are no longer correct, since that central factual predicate has been withdrawn.4 Similarly, the Board found (and LILCO did not appeal the ruling), in the context of special facility populations (other than hospital patients), that the LILCO Plan was defective in failing to identify, and include supporting agreements for the use of, so-called " reception centers" to which evacuees from schools and special facilities could be taken and cared for. Sag CPID, 22 NRC at 430. In lighf of the Red Cross statement that there is no agreement by which it would perform emergency .
services, including the identification or operation of centers for general evacuees to be sent for shelter and other necessary services, and the Red Cross' acknowledgment that facilities are not available for that purpose in any event, the Board's analysis of LILCO Plan deficiencies with respect to school children and special facility (other than hospital) residents must now also be applied to find the Plan deficient with respect to post-evacuation services for the general population.
4 The centrality of the ability to notify the,public of an emergency, direct the broadcasting of EBS messages, and make protective action recommendations to the public is further demonstrated by this Board's ruling that LILCO's lack of legal authority to perform such functions is " adequate to support a denial of approval of the emergency response plan under 10 CFR S 50.47(a)(1)." geg CPID, 22 NRC at 427-28.
. (
III. New Contentions Relating to WALK's Withdrawal and the Unavailability of Concrecate Care Centers The Governments submit that, under the circumstances, reopening is justified with respect to the three issues
~
identified herein under the rubric of contentions already litigated in this proceeding -- specifically, the contentions dealing with LILCO's proposed public notification system (EP Contentions 20, 55-59), EP Contention 24.P, and EP Contentions 24.0 and 75. Nevertheless, for the convenience of the Board and parties, to avoid unnecessary confusion and argument arising from trying to fit new facts into old contentions, and to make ,
absolutely clear at the outset the issues which the Governments believe are presented by the new events and facts which give rise to this reopening, the Governments are submitting with this motion'two new contentions. Those contentions set forth the issues to be addressed, upon reopening the record, concerning WALK's withdrawal and the lack of congregate care facilities.
The Governments also seek reopening on Contention 24.P, which is still fully applicable to the fact that there is no agreement by the Red Cross to perform the functions assigned to it under the LILCO Plan.
For the reasons discussed below, the Governments believe that the two new contentions and this motion to reopen, in .
- addition to satisfying the criteria discussed in Section II above, also satisfy the requirements for late-filed contentions under Section 2.714, as required by 10 CFR S 2.734. See 51 Fed.
21 -
1
-' -r - - - - - - - --r... m ,, , . _ __ , , . _ _ , __ _ _ _ _ _ __ _
e Reg. 19,539. col. 3. The Governments emphasize, however, that these new contentions are being filed soleiv to avoid unnecessary, non productive, and wasteful argument about the intended scope and coverage of contentions written in 1983, when facts -- and LILCO's Plan -- were completely different than they are now. Thus, while the proposed new contentions fully satisfy the late-filed contention criteria, by submitting them the Governments do not in any way concede that they are required to file such contentions. Nor do the Governments waive their position that the issues raised by this reopening motion were the subject of the previous litigation of already-admitted EP .
contentions.
Section 2.714(a)(1) requires a licensing board to consider five factors in determining whethe; to admit late-filed contentions. Those factors are:
f (i) Good cause, if any, for failure to file on time.
(ii) Tha availability of other means whereby the petitioner's interest will be protected.
(iii) The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.
(iv) The extent to which the petitioner's interest will be represented by existing parties.
J (v) The extent to which the petitioner's participation will broaden the issues or delay the proceeding.
All these factors are satisfied by the proposed new contentions and the facts disclosed in this motion to reopen.
A. Good Cause Exists for Not Having Filed the Prooosed Contentions Earlier 4
For the reasons previously set forth in connection with the timeliness of this motion to reopen (ggg Section II.A above),
good cause exists for failing to file these contentions earlier.
As noted, it was not until late in the week of September 15 that the Governments were notified.by LILCO of the existence of the correspondence from WALK and the Red Cross which form the bases for the new contentions. Earlier notice of these developments could have been provided to the Governments, but was withheld by LILCO. Since learning of that correspondence, the Governments have, acted promptly in bringing their concerns before the Board, i
and in filing this motion. Accordingly, the " good cause" requirement of 10 CFR S 2.714(a)(1) has been met.
i B. There Are No Other Available Means Whereby the Governments' Interests Will Be Protected j
The purpose of this proceeding has been to determine whether LILCO's Plan provides reasonable assurance that adequate f protective measures can and will be implemented in the event of a Shoreham emergency. As noted above, the Board previously found that LILCO's Plan was adequate with respect t,o the issues raised in the proposed new contentions. The WALK withdrawal and recent Red Cross statements require a reversal of such findings. Absent i
I i .
1
e a reopening to consider the matters raised in the new contentions, there are no other means to pursue the Governments' interest in having such findings reversed, so that the Board's conclusions accurately reflect reality. Apparently, no other party has any interest in having the Board's prior rulings corrected to reflect current facts, since LILCO did not reveal the pertinent new information for more than a month (and even then, only revealed it in an offhanded way that did not even mention its significance or impact on the Board's previous findings) and the NRC Staff has done nothing to indicate any intent to pursue the new information cnd has not itself sought -
any reopening.
C. The Governments Can Be Expected to Assist in Developino a Sound Record The Governments have participated vigorously in this entire emergency planning proceeding, and will continue to do so in the reopened proceeding. The Governments will assist the Board in developing the necessary record to rule on the issues raised in the new contentions by filing summary disposition motions, and affidavits or testimony, if required, to support findings that there exist substantial new voids in the LILCO Plan which preclude findings of compliance with 10 CFR S 50.47. Without a reopening on the issues raised in the proposed ne~w contentions, as urged by the Governments, this Board would have no avenue by which to take account of current reality, and new factual l
, ____.m._
developments, to correct what have become clearly erroneous prior findings. Indeed, by filing this reopening motion, the Governments have already assisted in the development of a sound and complete record in this proceeding.
D. The Governments' Interests Would Not Be Adecuatelv Reoresented by Other Parties As noted in section III.B above, no other party in this l
proceeding has attempted -- or could be expected -- to raise the issues which are the subject of this reopening and the new contentions.
E. The Issues Raised Do Not Unduly Broaden the Scope of the Issues Before the Board, and Would Not Cause Undue Delav Reopening the record on the issues raised in the new contentions would not broaden the scope of the issues before the Board, since they are ones already considered -- and ruled upon
-- by the Board. It is essential, however, that such issues be considered again so that the facts as they actually exist --
rather than as LILCO represented them two years ago -- can be taken into account. The Governments submit that the withdrawal of two central " support" organizations -- WALK Radio and the Red Cross -- from L1LCO's Plan has serious ramifications upon LILCO's
, ability to implement its Plan. It makes implementation impossible.
e
i i Furthermore, the requested reopening would likely result in little, if any, actual hearing time, since they are likely to be resolved in the Governments' favor on summary disposition motions. Even if some factual disputes were to arise, however, the time necessary to deal with them would not be great, and would pale in comparison to the time already spent in hearings, and likely to be spent in the exarcise litigation and remand litigation which are yet to begin.
IV. , Conclusion For the re3 sons set forth above, the Governments submit that ,
they have satisfied the Section 2.734 criteria for reopening on the three issues identified herein, and that, accordingly, the record should be reopened on the two proposed contentions attached hereto, and on EP Contention 24.P.
Respectfully submitted, Martin Bradley Ashare Suffolk County Attorney Building 158 North County Complex
' Veterans Memorial Highway
. Hauppauge, New York 11788 Herbert H. Brown Lawrence C. Lanpher Karla J. Letsche Michael S. Miller
, Kirkpatrick & Lockhart 1900 M Street, N.W.
Washington, D.C. 20036 Attorneys for Suffolk County J
- f. '
5lM Palomino Fabian G.
$bh tN/st) '
/
Richard J. Zahnleuter Special Counsel to the Governor of New York State Executive Chamber Two World Trade Center New York, New York 10047 Attorneys for Governor Mario M.
Cuomo and the State of New York b* fN/N]
Stephdn B. Latham '/ /
.Twomey, Latham & Shea P.O. Box 398 33 West Second Street Riverhead, New York 11901 .
Attorney for the Town of Southampton Dated: October 15, 1986
- 1 27 -
. - - . = . _ _ . . _ _ _ _ . . _ . . . . _ _ _ _ .
i .
e Qgtober 15, 1986 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensino Board I
)
In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Naclear Power Station, )
Unit 1) . )
_)
AFFIDAVIT OF MICHAEL S. MILLER IN SUPPORT OF THE GOVERNMENTS' OCTOBER 15, 1986 MOTION TO REOPEN
- 1. My name is Michael S. Miller. I am one of the counsel for Suffolk County, New York, an intervenor in the Shoreham licensing proceeding.
- 2. On September 17, 1986, my law firm, Kirkpatrick &
Lockhart, received a copy of a September 16, 1986 letter from Donald P. Irwin, one of the counsel for the Long Island Lighting Company ("LILCO"), to the five Commissioners of the Nuclear Regulatory Commission. This letter, which is Attachment A to this J.ffidavit, advised the Commission and the parties to the Shoreham proceeding that LILCO had been informed that WALK Radio station, the primary station in the Shoreham emergency broadcast
_ _ _ _ _ _ _ _ _ _ ._.9
~
system ("EBS"), was no longer willing to serve that function. A copy of WALK's letter withdrawing from LILCO's Pla.n was not included with Mr. Irwin's September 16 letter.
- 3. Immediately upon receipt of Mr. Irwin's letter, my partner, Herbert H. Brown, wrote Mr. Irwin to request how and i when LILCO had learned of WALK's decision and requested a copy of any written communication from WALK to LILCO. Mr. Irwin replied on September 23, 1986, informing Suffolk County counsel that LILCO had received a letter from WALK Radio on about August 13, 1986. A copy of the WALK letter was not enclosed with Mr. Irwin's letter to Mr. Brown. .
- 4. On or about September 24, 1986, the WALK withdrawal letter was finally provided to my firm. That letter, dated August 8, 1986, was not provided by LILCO, however; rather, service of the WALK letter was made through the NRC's Docketing and Service Branch. A copy of the August 8, 1986, letter from WALK to LILCO, together with a copy of a letter dated September 12, 1986, from WALK to Judge Margulies informing the Shoreham Atomic Safety and Licensing Board ("ASLB") of WALK's withdrawal, and a September 22, 1986, memorandum from Judge Margulies' secretary to the NRC's Docketing and Service Branch requesting service of the WALK letters of August 8 and September 12 on the parties to the Shoreham proceeding, comprise .
Attachment B to this Affidavit. .
m e
m
- 5. On September 19, 1986, shortly after receipt of initial notification from LILCO of WALK Radio's withdrawal, my law firm received Revision 8 of the LILCO Plan. Revision 8 included among its many other changes a copy of an August 21, 1986 letter from Walter Oberstebrink, the Chairman of the Nassau County Chapter of the American Red Cross, to LILCO notifying the utility that the Red Cross had entered into no agreement with LILCO either to open and operate congregate care centers for sheltering Shoreham
~
evacuees or to otherwise provide emergency services and assistance in the event of a Shoreham accident. A copy of the August 21, 1986, letter from the Nassau County Chapter of the Red -
Cross to LILCO is Attachment C to this Affidavit. Subsequent to my firm's receipt of Revision 8 of the LILCO Plan, including the August 21 letter, Mr. Oberstebrink confirmed in an interview with Newsday that there is no agreement between the Nassau County Chapter of the Red Cross and LILCO regarding implementation of LILCO's Plan. See Newsday article entitled " Red Cross: We Can't Help on Shoreham," dated September 30, 1986, and attached to this Affidavit as Attachment D.
- 6. During the week of September 22, I and other attorneys in my firm were on Long Island to attend the ASLS's limited appearance sessions and the prehearing conference scheduled by the ASLB for September 23-26. During the limited appearance sessions of September 26, held in Mineola, New York, Mr. Howard M. Koenig, the Superintendent of Schools of the East Meadow Union Free School District, testified before the ASLB. See Tr.
16,999-17,009. Superintendent Koenig testified that congregate care centers and facilities previously relied upon by LILCO for sheltering Shoreham evacuees are, in fact, not available for LILCO's use. As supporting evidence for his testimony, Superintendent Koenig presented to the ASLB signed letters and statements from 34 of the 50 facility owners previously claimed by LILCO to have agreed to permit use of their facilities in the event of a Shoreham accident. These 34 letters were unequivocal in disputing LILCO's claim, making clear that their facilities would not be made available for use in sheltering Shoreham evacuees. .
- 7. The motion to reopen which accompanies this Affidavit sets forth additional bases in support of the claim by Suffolk County, the State of New York, and the Town of Southampton (coilectively, the " Governments") that the reopening criteria recently codified by the Commission (51 Fed. Reg. 19,539 col. 3) are satisfied under the circumstances surrounding WALK's withdrawal from the LILCO Plan, the Red Cross' disavowal of any agreement to open and operate congregate care centers or to otherwise provide emergency services and assistance in the event of a Shoreham emergency, and the virtual absence of any congregate care centers for use by LILCO in sheltering Shoreham l evacuees.
- 8. The time'liness of the Governments', motion to reopen is made clear by the facts stated above: the Governments have acted promptly after receipt of the data concerning WALK Radio and the l .
American Red Cross. With respect to the significant safety issue required to be addressed, it is beyond dispute that issues relating to WALK's withdrawal, the lack of any agreement from the Red Cross to LILCO indicating either the ability or the willingness to provide emergency services or assistance in the event of a Shoreham accident, and the absence of congregate care facilities for use in sheltering Shoreham evacuees constitute serious safety issues. The'ASLB, for example, in previously reopening the record at LILCO's urging,1 ruled that the mere identity of LILCO's proposed use of the Nassau Coliseum as a reception center " presents a serious safety issue." -
Here, much more than the mere identification of a facility is at stake. Indeed, the facts which have prompted the Governments' reopening motion demonstrate that:
-- Without WALK Radio, LILCO's prompt notification system, including the transmission of EBS messages and the activation of tone alert radios, cannot be implemented;
-- Without agreement by the Red Cross, LILCO's proposed i
reception center / congregate care center scheme, including the registration, feeding, sheltering, clothing, counselling, and otherwise caring for evacuees, cannot be implemented; and J
i ____________________
l 1 Memorandum and Order Granting LILCO's Motion to Reopen Record (Jan. 28, 1985).
a Without congregate care centers, LILCO's relocation proposals for evacuees cannot be implemented.
The consequences of these developments concerning WALK Radio, the Red Cross, and con'gregate care facilities are, first, to create significant gaps in LILCO's Plan, since elements of that Plan, essential to its implementation, are no longer in existence, and, second, to compel a finding of noncompliance by LILCO with regulatory requirements. Egg, e,q,, 10 CFR SS 50.47(b)(5),
50.47(b)(8), 50.47(b)(10), 10.CFR Part 50 Appendix E S IV.D.3, NUREG 0654 SS II.E.5, E.6, G.1, G.2, J.9, J.10, and Appendix 3 thereto. Accordingly, the issues raised in the Governments' motion to reopen constitute serious safety issues.
- 9. The last criterion required to be satisfied for reopening is that a different result would have been likely had the facts now known been considered initially. This criterion is satisfied. In its prior rulings, the ASLB determined that:
-- WALK Radio is a " key station" in LILCO's EBS and that EP Contention 20 was without merit because, inter alia, WALK-AM is " prepared to broadcast EBS messages at any time of day" (Partial Initial Decision ("PID"), 21 NRC I
644, 764 (1985));
~
. * -- Contrary to the assertions of EP Contention 24.P, a July 25, 1984 letter f rom the Red C'ross to LILCO
" provide (d] reasonable assurance that the Red Cross
i will perforra the duties upon which LILCO relies in its emergency plan" (Concluding Partial Initial Decision
("CPID"), 22 NRC 410, 420 (1985)); and EP Contention 75, interpreted by the ASLB to challenge the adequacy of congregate care centers, including the capability of such facilities to serve the needs of and collectively shelter Shoreham evacuees, was without merit (CPID, 22 NRC at 420, 422-23).
Clearly, a "different result" than was previously reached by the ASLB with respect to EP Contentions 20 and 24.P is likely -- .
indeed, required -- under circumstances where there is no longer any agreement between LILCO and either WALK Radio or the Red Cross regarding implementation of the LILCO Plan, rendering key bases for the ASLB's earlier rulings invalid. Similarly, there must be a "different result" reached by the Board on EP Contention 75, given the Red Cross' acknowledgment that the congregate care centers assumed to be available for sheltering Shoreham evacuees are, in fact, not available for that purpose.
Simply put, the ASLB could not have rendered a result in favor of
- LILCO on EP Contention 75 had it known that the congregate care
C.'
centers relied upon for implementation of LILCO's Plan in fact were not available.
Michael S. Miller District of Columbia, ss:
Subscribed and sworn before me this n/kday of October, 1986.
My commission expires: .
s I?/
V,*: *_r r (;*
- r, * 'is*
, Notary Public S
I e e
~
i ATTACHMENT A H UNTON & WII.I.IAM S
. A O Son 6535 707 CAST M A N STACET 8000 et==s. ..=....c= e - . RacMwown. Vamotut A 20212 oo .... ..c,,e
=c a c o. = c a . c o. .o e..
e o aos<easo .c.ce-c=c a a aos coo
=.s= =oac= o e acose TE 6E ***ow E 804 75 8 8 200
.c .c a a a. s. e ... ,,
.c ge-o=a aos ess eso.
TE6EE 8844254 c = c -.==ove n so...c e.es,.. o.=..s fo=ce e o aos.co e o aos sees e.ws.o= =oet= c.aos =. aveoa
=oseosa v.so. .a as s.* et.se-o= tee eessooo etwee-o=s see eas sec.
September 16, 1986 ,. e s, ..== e s s a c ..=. e .so.=o
- e. .o . . s .
no to em..= .e.oe s e... = =onw.s6s. 't ==c a sa r a t eo.
- o sos.49 erwse=o=c e.s - e s, 4 3.,
ra.oras. v.moinea sacao Ttkte=o t 703 3s8 480. **st =o o.acce o.a6 =o som res.
Lando W. Zech , J r. , Chairm.an Commissioner Thomas M. Roberts Commissioner James K. Asselstine Commissioner Frederick M. Bernthal Commissioner Kenneth M. Carr*
U.S. Nuclear Regulatory Commission
~
1717 H Street, N.W. -
Washington, D.C. 20555 Long Island Lighting Company Shoreham Nuclear Power Station NRC Docket 50-322-OL-3
Dear Chairman Zech and Commissioners:
Long Island Lighting Company has been informed that the pri-is mary station in the Shoreham Emergency Broadcast System, WALK, no longer willing to serve that function. LILCO is evaluating alternatives to WALK for that function and will modify its Emer-gency Plan accordingly and take other appropriate steps as soon as one has been dec,ided upon.
i Sincerely yoursg 9=~'G b- %
l
' Donald P. Irwin One of Counsel for Long Island Lighting Company ec: Atomic Safety and Licensing Appeal Board Atomic Safety and Licensing Board Counsel for all parties 91/730 l
l L
p * - s . . ,, ~~ '
+. UNITED STATES f
i ' L1 j NUCLEAR REGULATORY COMMISSION ,,' ' .' . r. E : e 7 -
r ATOMIC SAFETY AND LICENSING BOARD PANEL I 'l!" '
W ASHINGTON. O C. 20555 S, ,. [
- September 22, 1986
% SEP 23 P3 :02
- bbbS :. ,
,- s.
MEMORANDUM FOR:
William L. Clements, Chief Docketing and Service Branch FROM: Allene Comiez h Secretary to Judge Margulies
SUBJECT:
SHOREHAM PROCEEDING - DOCKET NO. 50-322-OL-3 Please serve the enclosed letter on the parties to the Shoreham .
proceeding.
Enclosure Ltr. fm A. Beck dtd 9/12/86
- gi e
i e
T WRLK TL 11/2 Ahf1370 =<u.
I'4 ' .
E SEP 23 P3 :02 CFF:.. .
00Cr! "..
-r u..
September 12, 1986 The Honorable Morton Margulies Administrative Law Judge Atomic Safety & Licensing. Board United States Nuclear Regulatory Commission Washington, D.C. 20555 *
Dear Judge Margulies:
Enclosed please find a copy of our recent letter to the -
Long Island Lighting Company concerning our withdrawal from participation in the Shoreham Emergency Response Plan.
Sincerely
}(,
l\ -
(
Alan Beck President & General Manager AB/l Enclosure s'
ISLAND BROADCASTING COMPANY. INC. *: - '":
t's a tt $200
- 9 o Scs 230 hrc~cg.e *.e+
N ;,M Il O ( 7 /Ca#
AM1370 e
a er S 5e:* ='es.:e at: G e-e 3. *.ea age, August 8,'1986 Mr. Ira Freilicher *
. ice cresiden:
Long Island Lighting C a pany
,.s.
i ,ast vic .cantry ., cad Hicksville, New Y:rk 113Cl Cear Mr. Freili:ner:
In at::rdance with :ne ruling of the Supreme Ocur: cf the (0 acme, Suff:lk, 50;tha.pten vs.
5: ate of ::ew Y :k
'.I" .T./.Odge Geiler) and en the advice of ecu..sel, we find it
.e:essary a: : .is :t e te withdraw fr:r participa:icn in tr.e 3P.:rer.a- F_ er;ency sespc.se .:'an. .
3;..:ere;..
m p _ 'n 11'a". 3. E e .<
.:rs.is. a,5 Jer.e:al M1.. age:
1.* O. .. . .e t
. ,i ISLAND BROADCASTING COMPANY, INC.
v>< s.trx . * : se, :x av: >:.e sr. .r. -: .-
I I
~
ATTACHMENT C l
- American Red Cross s m coun,3ca.,,,,
264 Old Country Road Mineola. N Y. l1501
($16; 74?.3500 August 21, 1986 Mrs. Elaine D. Robinson Long Island Lighting Company.
175 E. Old Country Road Hicksville, NY 11801
Dear Mrs. Robinson:
In a letter addressed to you dated July 25, 1984, the Nassau County ~
Chapter of the American Red Cross described the role to be played by the Red Cross during a radiological emergency at the Shoreham Nuclear Power
. Station. As indicated in the letter, this role is mandated by the charter granted to the Red Cross by the U.S. Congress. Although the letter to you is erroneously captioned an agreement, we must emphasize that the letter is not an agreement but simply a statement of the policy of the Red Cross in any radiological, or natural disaster. A copy of said policy is attached.
it should be noted in this connection that radiological emergencies can also arise from the operations of a number of facilities, such as, the two Indian Point reactors, the Brookhaven Laboratory reactor and the reactors at the Millstone station in nearby Connecticut. Thus, the reference to Shoreham in the above-described letter should not be construed to imply that the Nassau County Chapter either supports or opposes the opening of Shoreham, i
in the letter to you, the Chapter also appended a list of facilities normally relied upon by the Red Cross to provide space for relocation centers in the event of a natural disaster. It is our understanding that our letter and list of facilities was submitted to the Nuclear Regulatory Commission in the Shorehan licensing proceeding. 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. Others have advised us that their facilities have been withdrawn for use in any event either natural or radiological. ,e ,
APP-B-ll The tavou Counts Red Cross os alw affil,ared n rrh Garden Cors Comnrunros fund.
- Great see L Untred Commumas fund Inc . Fose Tonns Umred H as,
,, 'k*" Afanhauer Umord fund. Inc.
O Mrs. Elaine D. Robinson Long Island Lighting Co.
August 21, 1986 Page In closing, it should be, understood that there is no agreement between Long Island Lighting Company and this Chapter relating to the Chapter's responsibility to provide emergency assistance during a radiological emergency. .
Very truly yours, f --
Walter Oberstebrink Chapter Chairman WO:hg CC: Nuclear Regulatory Commission t.ando W. Zech, Jr., Chairman Comnissioner James K. Asselstine Commissioner Frederick M. Bernthal Commissioner Thomas M. Roberts Peter F. Cohalan, Suffolk County Executive Francis T. Purcell, Nassau County Executive Deputy inspector John J. Blankenhorn, Office of Civil Preparedness Long Island Coalition for Safe Living W.J. Catacosinos, Chairman & CEO Long Island Lighting Co. ,
J e
APP ,B-lla
l s
I i
l c....... _ - -.- C . _ ,,.. ,e. n - ~ ~
- - e. .
Newmhag
-.n.. .... ,,..e.
,,,e.... ,,..
g e..-~~
- - ~ ~ 1,i i
1
~
LONG ISLAND - .____
. hra n
.f_
l! Red Cross: We Can't Help on Shoreham Cross orricial sent a letter to uIfO reporting that and Nassau Counties to participate in emergency I Hy John Mcdonald ' they had an agreement with the utility to designate planning for Shoreham, Ulf0 has designed three
! The chairman of the Nassau Chapter of the 50 angregate care centers in Nassau schools. ofits own facilities as, reception centers for the moni-s American &d Croes said yesterday that he has noti- But in a letter to Ulf0 last month, Walter toring and decontamination of Shoreham evacuees.
I' l l fied long taland Lighting Co. that there s no em Oberseebrink, chairman of the board of the Nassau Decontaminated people would be issued paper over-i I . ment regarding the emergency plan for the Shore- chaptg ani4 *It should be understood that there alla.
ham r.uclear power plant and that facilities planned is no agreement
- lie added that of the 50 congro-te house Shoreham evacuees are no longer available. gate care centers, "a significant number of th* NRC won't End LECO Hdnp l
ulf0 has maintained in its Shoreham emer- owners of these facilities have informed us that Washington -h Nuclear hgulatory Commie-gency plan that the Naamau Red Crona will designat* their facilities would not be permitted for use as sion has rejected a request by Gov. Mario Cuomo facilities to receive evacuees who have been decon- relocation centers in the event of a radiological that the hearings on the licensing of the Shoreham taminated and prmded with paper clothes, but who emergency at Shoreham "
l have no place to stay.
Oberstebrink said yesterday of the representa. nuclear power plant be terminated.
i Cuomo had asked for the terutination of the hear. >
I 'Ihe Red Croes' latest position will have little im- tion by the chapter official, who has since left the ings in May, after White llouse chief or staff Donald
- pact on the Nuclear &gulatory Comminaion's an- chapter, *I think he did it innocently. When he was hgan said in a TV interview that long taland can- d sideration of a license for Shoreham, Ulf0 spokes- approached by UIro, he probably overgeneralized man William Sherrard said. "There isn't any need it, he labeled it an agreement in error. Obviously, not be evacuated.
i I Ulf0 had asked ti.c NRC to reject Cuomo's re- Q
! for a utility in an emergency plan to list congregate Ulf0 used that interpretation."
Richard Kessel, esecutive director of the state quest. 'the NRC order said that Cuomo's request "is r tra care centers Everybody recognizes that it is the role Consumer Protection Board, said of the latest plan, based on the pro ition that no adequate emergen-of the Red Cross
- he said. Federal Emergency Man- Z
- "Where do those people then go with their paper cy plan can be veloped for the Shoreham plant d i
agement Agency spokesman William McAda con- suita? What if there was an accident in January? ht proposition is being-litigated in this adjudica-
! i firmed Sherrard*e interpretation.
Coppegate care center is the term uned for facili- Would UlfO then send peopleoutcome out into theproceeding cold tory O ca l of this by licensing proceeding. We agreeing or diangree-tice to houne evacuees abr they have been moni- wearing only paper suita7*
I tored and decontaminated. In 1984, a Nameau Red Because of the refusal by the state and Suffolk ing with the governor's proposition."
s e
I y
.o O
PROPOSED CONTENTIONS WALK Radio Contention 10 CFR S 50.47(b)(5) requires that means be established to provide early notification and clear instruction to the public within the plume exposure pathway EPZ. The public notification system must be capable of essentially completing the initial notification of the public in the plume exposure pathway EPZ .
"within about 15 minutes." 10 CFR Part 50, Appendix E, 5 IV.D.3.
In addition, NUREG 0654 requires that there be in existence "a system for disseminating to the public appropriate information contained in initial and followup messages received from the licensee including the appropriate notification to appropriate broadcast media, e.a., the Emergency Broadcast System (EBS)."
NUREG 0654, S I-I.E.5. It provides, further, that there shall be
" administrative and physical means . . . for notifying and providing prompt instructions to the public within the plume exposure pathway Emergency Planning Zone. . . . It shall be the licensee's responsibility to demonstrate that such means exist
. . . ." 14. at S II.E.6. Egg also NUREG 0654 SS II.J.10.c, II.F, and Appendix 3.
Under LILCO's Plan, WALK Radio is relied upon as the "pri-
, mary direct communication link to the publ'ic." OPIP 3.8.2 at 1.
Specifically, the Plan provides that:
WALK-FM Radio Station provides Emergency Broadcast System (EBS) message transmission capabilities in support of the public notifi-cation and information efforts of LERO. Upon
r , , 1
'4 e
notification from LERO, WALK-FM Radio acti-vates the EBS message control system and broadcasts to the general public, information supplied by the LERO Coordinator of Public Information.
^
Plan at 2. 2-2, -2a . The Plan also provides that:
(T]here is a system of tone alert radios for warning those organizations with a large number of people such as schools, hospitals, nursing homes, handicapped facilities and major employers. 'Each special facility will be equipped with a tone alert radio receiver, which upon activation by the EBS signal from WALK radio (97.5 FM), will automatically broadcast the emergency messages. This system will provide these special facilities with direct notification during an Alert, Site Area -
Emergency and General Emergency.
Id. at 3.3-4. It provides, further:
If the event is classified an Alert, and no protective actions for the general public are required, EBS may be activated without the sirens to notify the school districts to implement early dismissal . . . .
Id. Finally, the Plan provides:
For a site area emergency or general emergen-cy, the activation of EBS must be coordinated with the siren system activation to ensure that the public will receive prompt instruc-tions. . . . In the event of a radiological emergency involving the Shoreham Nuclear Power Station (SNPS), the Emercency Broadcast System (EBS) can oniv be activated by communication with Radio Station WALK (97.5 FM) located in Patchocue, New York . . . . .
(
4 P
OPIP 3.8.2 at 1-2 (emphasis added). Other radio stations which have agreed to participate in the LILCO EBS can only retransmit messages after they have first been transmitted by WALK Radio.
Egg Plan at 2.2-2a.
Based on the provisions of the LILCO Plan, and representa-tions and testimony by LILCO, the Licensing Board found in its April 17, 1985 Partial Initial Decision ("PID"), that WALK Radio is "obviously the key station" under LILCO's Plan, and that if WALK-FM were unwilling or unable to broadcast, LILCO's tone alert radio system would fail to function. Lona Island Lichtino Co.
(Shoreham Nuclear Power Station, Unit 1), LBP-85-12, 21 NRC 644 -
at 764, 760 (1985).
On August 8, 1986, WALK Radio withdrew as a participant in LILCO's Plan. The Governments contend that the refusal of WALK Radio to participate in implementing the LILCO Plan leaves a substantial void in that Plan which precludes a finding of reasonable assurance that adequate protective measures can and will be taken in the event of a Shoreham emergency, as required by 10 CFR S 50.47(a)(1). Specifically:
- 1. Without the participation of WALK Radio, there can be no reasonable assurance that LILCO's emergency broadcast system
("EBS"), by which LILCO intends to provide the public with detailed information and instruction regarding a Shoreham accident, including what, if any, protective, actions should be taken (Egg, e.g., Appendix A at IV-2 thru -3), would or could be implemented, since the EBS can only be activated by WALK Radio and, absent WALK's transmission of EBS messages, other radio stations relied upon by LILCO to retransmit EBS messages will be unable to do so. OPIP 3.8.2 at 2; Plan at 2.2-2 thru 2.2-2a.
- 2. Without the participation of WALK Radio, LILCO's tone alert radio system, by which LILCO intends to provide special facilities, including schools, hospitals, nursing homes, handicapped facilities and major employers, with direct notification of a Shoreham smergency, is not workable, since such tone alert radios can only be activated by an EBS signal from WALK Radio (97.5 FM). EggPl$nat3.3-4, 3.4-6; Appendix A at IV-3. .
- 3. Without the participation of WALK Radio, none of the provisions of LILCO's Plan pertaining to the dissemination of emergency information and instructions to the public (12g1, Plan Sections 3.3.E, 3.4.H, 3.8.B, and related OPIPs) can or will be implemented.
Accordingly, the Governments contend that, in the absence of an agreement by WALK Radio to perform the functions expected of it by LILCO, the public notification and information provisions of LILCO's Plan cannot and will not be implemented and, therefore, the LILCO Plan cannot and does not comply with 10 CFR
$$ 50.47(a)(1), 50.47(b)(3), 50.47(b)(5), 50.47(b)(6) and NUREG 0654 SS II.A.3, C.4, E and F.
P
t Concrecate Care Center Contention An offsite emergency plan must include means of relocating evacuees in host areas following an accident.at a nuclear plant.
Egg, e.o., NUREG 0654 S II.J.10.g, h, and J.12. The LILCO Plan expressly acknowledges this requirement, and the practical necessity, of providing facilities at which evacuees who have no alternative places to stay can be provided with food, shelter, medical care, counselling and other basic necessities. Egg Plan at 2.2-2, 4.8-1. Thus, the LILCO Plan states:
The Nassau County Chapter of the American Red -
Cross has made arrangements to use numerous facilities as congregate care centers in the case of an emergency (Egg . . . Appendix B).
Congregate care centers will provide the evacuees with temporary housing, food and other necessities. Each facility will be i directed and staffed by American Red Cross personnel. . . .
Id. at 4.8-1. The Plan further assumes that during a Shoreham accident, the Red Cross would designate so-called " congregate care centers" to which evacuees could be directed. Egg, e.o.,
OPIP 4.2.3; Plan at 4.8-1.
The Governments contend, however, that the cited provisions of the LILCO Plan, designed to comply with the regulatory requirements that there be " relocation centers," cannot and will .
. e not be implemented. Specifically, the Governments contend:
- 1. The Nassau County Chapter of the Am'erican Red Cross has disavowed the existence of any agreement with LILCO to designate, open, or operate congregate care facilities or to otherwise
q
( t.
' provide the services assumed by LILCO to be available from the Red Crosa at such facilities, in the event of a Shoreham accident.
- 2. The Nassau County Chapter of the Red Cross has informed LILCO that facilities normally relied upon by the Red Cross as relocation facilities or congregate care centers in the event of a natural disaster (including those facilities referred to in Appendix B of the LILCO Plan) in fact are not available for use as relocation facilities or " congregate care centers" in the event of a Shoreham accident.
- 3. Virtually all the facilities assumed by LILCO to be -
available as " congregate care centers" have expressly stated that they have not and will not agree to permit their use for such a purpose in the event of a Shoreham emergency.
Accordingly, LILCO's proposals for relocation of evacuees cannot and will not be implemented, and LILCO's Plan thus fails to comply with 10 CFR SS 50.47(a)(1), 50.47(b)(8), 50.47(b)(10), and NUREG 06 5 4 5 II .J.
1 , .
i i
i
. uCO, October 27,1986 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station, )
Unit 1) )
LILCO's Answer To Suffolk County, State of New York and Town of Southampton Motion to Reopen Record of October 15, 1986 On October 15, 1986, the Intervenors in this case filed their "Suffolk County, State of New York and Town of Southampton Motion to Reopen Record"(hereinaf ter
" Motion"). The Motion asks that the Board reopen the evidentiary record to consider new evidence about three issues:
- 1. The withdrawal of WALK Radio as the primary emer-gency broadcast system (EBS) station,
- 2. The lack of an agreement with the American Red Cross, and
- 3. The " lack of congregate care center facilities."
The Intervenors argue that reopening is called for under the recently codified criteria of 10 C.F.R. 5 2.734,51 Fed. Reg. 19,535.19,539 col. 3 (May 30,1986), and, in the alter-native, that late-filed contentions should be admitted under 10 C.F.R. S 2.714(a)(1). For the reasons set out below, LILCO generally opposes the Intervenors' Motion. LILCO agrees that the issue of the EDS station must be addressed further; but it is premature to admit a contention at this point until LILCO has in place substitute arrangements.
/ 4, N
{n. ,,
I. Licensing Board Jurisdiction The Intervenors' Motion is defective, first, because it is addressed to the wrong forum. There are currently no issues before this Licensing Board about radio station WALK or the EBS system, about the role of the Red Cross, or about congregate care centers.M The issues on thuse subjects have now passed Appeal Board review, and the Commission has declined to review them further. Accordingly, the Motion should be addressed to the Commission, not the Licensing Board. LILCO will assume that the Commission, not the Licensing Board, will address the Motion on its merits.
II. WALK Radio The intervenors first move to reopen the issue of the EBS radio station, based on a letter of August 8,1986, from the President and General Manager of WALK stating that the radio station finds it "necessary at this time to withdraw from participation in '
the Shoreham Emergency Response Plan." Letter from Alan S. Beck to tra Freilicher, August 8,1986.E y There are related contentions in the exercise litigation. Contention Ex 16.N says that congregate care centers did not participate sufficiently in the exercise. Ex 16.C says that WALK did not participate. And Ex.18.C(ill) says that participation by Red Cross personnel was inadequate. None of the new matters raised by the Motion, howev-er, has anything to do with the exercise.
2/ LILCO is compelled to correct the record on a collateral issue involving its noti-fication of radio station WALK's withdrawal from its role as primary station in the spe-cla! EBS system set up for Shoreham. While not material to the arguments in their Motion, an attached affidavit from Michael S. Miller, Esq., one of Intervenors' counsel, insinuates that LILCO was definitively notified by WALK of a final decision to with-draw on or about August 8, and that LILCO concealed that information for over a month, until mid-September. That insinuation is false, and Intervenors can hardly help but know it is f alse. Both telephone and f ace-to-f ace discussions occurred between LILCO and WALK between August 13 (when LILCO received an unanticipated letter dated August 8 from Alan Beck, WALK's general manager) and September 16 and 17 (when LILCO was definitively informed by WALK by telephone and in writing of its withdrawal). LILCO did not itself receive a copy of Mr. Beck's September 12 letter to Judge Margulies untilit was served by the NRC's Docketing and Service Section on September 23. Intervenors were informed in detail of the chronology of events con-cerning these matters on September 23 in a letter to Mr. Brown, one of Mr. Miller's partners, from Donald P. Irwin, one of counsel for LILCO. A copy of the letter is at-tached to this Answer.
3 LILCO agrees with Intervenors that the record needs to be reopened on this sub-ject. But LILCO does not agree that the time is ripe for the admission of a new conten-tion, nor that evidentiary hearings will be necessary.
In the first place, the pre-emergency withdrawal of WALK would not present a health and safety problem in a real emergency. LILCO does not understand the Inter-venors or anyone else to be claiming that WALK, or any radio station on Long Island, would decline to transmit safety information to the public in a real emergency.
In the second place, there is no federal requirement that there be an agreement with the EBS radio station. There used to be a federal guideline to that offact. In FEMA-43," Standard Guide For the Evaluation of Alert and Notification Systems for Nu-clear Power Plants"(September 1983), the Acceptance Criteria for planning standard E, relating to procedures for notification and instruction to the public, included a criterion that there be "some form of agreement":
An emergency plan will typically be acceptable under this evaluation criterion provided that it clearly describes a sys-tem of disseminating information that meets the following criteria:
- 3. References or includes some form of agreement, available for review, which states the station's or broadcast system's willingness to participate in the public notification process.
FEMA-43, at E-2 (September 1983)(emphasis added). In 1985, however, FEMA-REP-10 superseded FEMA-43. FEMA-REP-10 clianged the acceptance criterion to specify, not some form of agreement, but rather "some form of documentation": ,
An acceptable emergency plan under Evaluation Criterion E.3 should describe a system of disseminating information to the public that meets the following criteria:
4
- 3. References or includes some form of documentation, available for review, that states the station's or broadcast system's ability to participate in the public noti-fication process.
FEMA-REP-10, Guide for Evaluation of Alert and Notification Systems for Nuclear Power Plants, at E-2 (November 1985) (emphasis added).
This revision was prompted by FEMA's recognition, and acceptance, of the fact that stations able to participate effectively in an emergency might not be willing to agree in advance to do so, as FEM A made clear in its Notice of Availability of FEMA-REP-10:
One utility industry group also noted that since individual radio station participation in the EBS is voluntary, it may not be possible to obtain the formal participation agreements re-quired in FEMA-43.
In response to these comments, FEMA has . . . re-placed the requirement for written agreements that individu-al broadcasting stations will participate in the EBS with a re-quirement for documentation indicating that they are able to participate in the EBS.
50 Fed. Reg. 43,084, 43,085 col.1 (Oct. 23,1985).
It is still up to LILCO to explain to the Commission, now that WALK has withdrawn from the emergency plan, what form of " documentation" LILCO relles on.
This explanation will be forthcoming. In the meantime, it is premature to admit a con-tention, such as the one proffered by the Intervenors, about the EBS system. Accord-ingly, LILCO agrees that the Commission (since the matter appears to be beyond the ju-risdiction of the Licensing Board) should reopen the record on the question of the EBS system, but without deciding yet whether an additional contention is warranted or fur-ther evidence is necessary.
~
III. The Red Cross The second issue that the Intervenors wish to reopen is the role of the American Red Cross. The Motion is based on the letter of August 21,1986, from the Chapter Chairman of the Nassau County Chapter stating that the letter from the Red Cross of July 25,1984, on which LILCO has relied is not an " agreement" but " simply a statement of the policy of the Red Cross in any radiological, or natural disaster." Letter from Walter Oberstebrink to Elaine D. Robertson, August 21,1986, at 1.
This development falls to meet two of the three criteria for reopening the record, codified at 51 Fed. Reg. 19,535,19,539 col. 3 (May 30,1986). First, it is not a "significant safety or environmental issue." Second, it is not enough to " demonstrate that a materially different result would be or would have been likely had the newly proffered evidence been considered initially."3I The Red Cross letter states that the letter that LILCO has regarded as an " agreement"is instead a " statement of policy."
From LILCO's standpoint, a " statement of policy" of the Red Cross is at least as good as an agreement.5I The August 21 letter says on its face that the role described in the earlier letter is " mandated by the charter granted to the Red Cross by the U.S. Con-gress."
As for the standards for late-filed contentions, the Intervenors fall to meet them too. The principal reason is that, as pointed out above. the "new evidence" is immateri-at to any significant issue of public health and safety. A contention that says (as the In-tervenors' does) that there is no " agreement" with the Red Cross, when there is a Red 3/ It is not enough to show a mere possibility of a different result; a likelihood is necessary. 51 Fed. Reg. at 19.537 col.1. Demonstrating this is a " heavy burden." I_d. at 19,538 col. 2.
3/ The Newsday article of September 30,1986, adds no information whatsoever to the Red Cross letter. The headline (" Red Cross: We can't help on Shoreham")is the words of a journallst, not of the Red Cross, and finds no support either in the letter or in the text of the newspaper article.
Cross policy, mandated by its charter, that has precisely the same effect, is not an ad-missible contention.
IV. Congregate Care Centers LILCO also opposes the Intervenors' motion to reopen the issue of congregate care centers. Many times in this proceeding the Intervenors have demanded a hearing i
based on the fact that a number of facilities on the Red Cross's list of congregate care centers have written to the NRC stating that they do not want to be a part of an emer-gency plan for Shoreham.EI The latest Motion simply repeats what has been said be-fore.
As with the Red Cross issue, the fact that certain facilities have disclaimed the LILCO Plan does not raise a significant safety or environmentalissue or demonstrate ,
l that a materially different result would have been likely had it been considered ini-tially. The reason is that the NRC has already confronted this issue and resolved it.
Having approved the standards the Red Cross uses to choose congregate care facilities, the Licensing Board directed the NRC Staff to verify that agreements for congregate care centers are up-to-date. LUP-85-31,22 NRC 410,423 (1985).EI This is a ministerial 5/ Every NRC judge who has sat on the relocation centers issue has been aware that some of the f acilities on the Red Cross list of congregate care centers are unwilling to be a part of the LILCO emergency plan. Letters to this effect from several school dis-tricts and churches are a matter of common knowledge. The Intervenors argued about these letters in pleadings to the Licensing Board of March 1, March 20, and May 17, 1985. They tried to raise the issue again at the hearing in June 1985, and 32 letters were bound into the transcript. Transcript of June 25,1985, f f. Tr.15,986. The Inter-venors again argued the issue in their proposed findings of July 15, 1986. The ASLB was fully aware of the letters but declined to reopen the record.
The Intervenors also raised this issue in briefs to the Appeal Board on November 6,1985 (at 34, 45-46,52,53-57) and January 6,1986 (at 2-4). The Appeal Board also de-clined to reopen the issue. ALAB-832,23 NRC at 162.
The Intervenors then argued the issue to the Commission. Suffolk County, State of New York, and Town of Southampton Petition for Review of ALAB-832 (Apr.15, 1986), at 11-14. The Commission declined to reopen the issue.
G/ Intervenors emphasize the f acilities that have been withdrawn but do not men-tion that congregate care f acilities for some 18,000 people have been added since the (footnote continued)
matter than can easily be handled by the NRC Staff,U and this solution to the problem has passed Appeal Board review and been declined review by the Commission. Thus this issue does not meet the criteria for reopening the record.
As for the late-filed contention about congregate care centers, it also does not meet the Commission's requirements. In particular, there is no " good cause" for filing it now, when the Intervenors have been pressing the issue for almost two years. The fact is that there is nothing new that would justify a new contention. The Intervenors rely on the limited appearance of Dr. Howard Koenig, Superintendent of Schools of the East Meadow Union Free School District, on September 26,1986. See Motion at 13; Tr.
16,999-17,009 (Koenig limited appearance). But Dr. Koenig merely repeated arguments that the NRC has heard many times before, and appended to his statement " letters from 34 faellity owners which were submitted to you in 1985." Tr.17,003 (Koenig limit-ed appearance). Likewise the Red Cross letter simply acknowledges what everyone al-ready knew.
Moreover, the contention if admitted would certainly " broaden the issues" and
" delay the proceeding," since it raises a problem that the Licensing Board has already confronted and solved. In short, the Intervenors have failed to meet the standards for admitting late contentions.
(footnote continued) hearing on this issue. As the Licensing Board's resolution of this issue recognizes, con-gregate care centers may come and go, and a change in the roster of such facilities does not call for a pub!!c hearing.
I/ Post-hearing verification by the staff of emergency planning measures is proper in such circumstances. See Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), ALAB-836,23 NRC 479,495. 512 (1986).
f
V. Conclusion For reasons stated above, the Commission should decline to reopen the record on congregate care centers and on the role of the American Red Cross. The Commission should hold the record on radio station WALK open, however, awaiting a further filing from LILCO to explain precisely how it plans to communicate with the public during a radiological emergency.
Respectfully submitted,
$ DAM Donald P. Irwi(
James N. Christman Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: October 27,1986 l
j I
I
. l HUNTON & WII.I.IAMS 7o7 EAsv MAies srsesar P.O. Som 1535 acoo es RIcaasoarn. VIaoIwIA aoa1a .. .....,,=o, eo.v6.m on.avsawe,so eue. =a w .oes. g. .oen .oo,,
,'.;."l%;"so1.i*1%*, r.u.-o ..o.o....aeo 'n'; laZ'.'.**J .*.*
rin.,vs.. ..a==vowse TELEa S.44251 o=s - ==ovan sowanc
. o .o.se.. . . .o.. .
no.cosa. vemo.m.a assia aa6tio= =oe,= camov=a av.oa
,.6. o =. .o.. . a . . n o, r:6 ..o=. ... ....soa.
September 23, 1986 ,,..,.......,,,,,,,,o so.oe. . o . oa. . . ....
e o. .o. ..a t a=o.vaur.es==sssesstees rasera., visoise*a Sao3o Pt.E mmon g .i s . 3 7 4 3.,
es6temons ,os.ssa asco
..-cc,... =o . ....
8357 Herbert H. Brown, Esq.
Kirkpatrick & Lockhart 1900 M Street, N.W. BY TELECOPIER Eighth Floor Washington, DC 20036
Dear Herb:
As to your letters of the 17th and 22nd, in my judgment there are no issues concerning WALK's withdrawal other than those relating to (1) WALK's replacement in LILCO's offsite plan (which will be forthcoming) or (2) potentially improper interference with LILCO's business relationship with WALK if any evidence thereof is uncovered. Perhaps you can assist our exploration of the latter. Some background is useful.
LILCO received an unsolicited initial letter on about August 13 from Alan S. Beck, the owner of WALK, referring to "the ruling of the Supreme Court of the State of New York (Cuomo, Suffolk, Southampton v. LILCO./ Judge Geiler)" and stating that "on the advice of counsel" he "found it necessary at this time to with-draw" from NALK's EBS agreement with LILCO. Immediately after i receipt of the letter, LILCO contacted Mr. Beck to set up a meet-ing to discuss the reasons for WALK's apparent decision and to inquire whether Mr. Beck would reconsider the letter. At the meeting Mr. Beck agreed to reconsider the letter but stated that he had to discuss the matter with his attorneys, whom he would not name. In early September LILCO, having heard nothing further from Mr. Beck, requ'ested his final word. LILCO received it by
! telephone on September 16; it was parallelled by a letter from l
Mr. Beck also dated the 16th but not received by LILCO until the 17th. That letter stated that while Mr. Beck " appreciate [d] the points you raised in our recent discussions, at this time we must stand by our position as stated." As you know, LILCO notified the Commission and all parties by Federal Express on the 16th, even before receiving Mr. Beck's final determination in writing.
1 i
l
-- r----, , en.--m- -------,~,--.-----.~_-e--n.en--- .
- - - - - - - - - . - , , , . . - , . ~ - - - - . ,
4
- Huwroy & WILLIAus Herbert H. Brown, Esq.
September 23, 1986 Page 2 I received your initial letter by telecopier, of course, around the middle of the day on the 17th, apparently within a couple of hours of the arrival of your Federal Express notifica-tion.
That is the correspondence concerning WALK's withdrawal.
There is apparently other correspondence from a couple of years ago concerning the backup generator, worth about 525,000, which LILCO supplied to WALK at the station's request in order to increase that station's reliability as an EBS station, but I am*
not in possession of it.
I have no idea what Mr. Beck was referring to in his refer-ence to the " advice of counsel" which was provided him in connec-tion with his decision, and thus cannot enlighten you on that score. I wish I could, since it strikes me as strange legal advice given the fact that Judge Geiler's decision is more than a year and a half old and its holding has been widely publicized during the entire period. Yet not until the Commission in CLI-86-13 provided a legal rationale that eliminates any poten-tial jeopardy from participation in the LILCO plan (since WALK could now presume conclusively that New York State and Suffolk County would lend best-efforts assistance) did WALK withdraw on the advice of unnamed counsel.
That background indicates to me that if anything further is to be known about the current situation, it must include knowl-edge of why WALK acted as it did at this time. Accordingly, I l request your help. I would appreciate your providing me with the
- following information, which I realize is perhaps sensitive, but l
no more than the situation itself:
- 1. Are you aware o'f whether any person other than LILCO has ever contacted Mr. Beck or other representatives of WALK concern-ing the station's participation in the Shoreham EBS network, spe-cifically, with reference to a proposal or suggestion that he withdraw from it and reasons why?
l l
- 2. If so, I would appreciate your telling me the identity of each such person.
- 3. Mr. Beck refers to the " advice of counsel." Do you know any attorney who may have provided legal advice regarding WALK's withdrawal, including but not limited to a reference to Judge Geiler's decision?
\
Huwrow & WILLIAxs Herbert H. Brown, Esq.
September 23, 1986 Page 3
- 4. If so, I would appreciate your telling me the identity of each such attorney.
~
- 5. Are you aware of any person other than an attorney who may have provided Mr. Beck with the suggestion that he refer in his letter to Judge Geiler's decision and a reference to " advice of counsel"?
- 6. If so, I would appreciate your telling me the identity of each such person.
- 7. When did you first learn that WALK had withdrawn (and, if the answer is any different, was contemplating withdrawal) from the Shoreham EBS network? How did you learn?
I hope you can help me with these questions. Whether or not one likes CLI-86-13, it seems clear to me that in light of that decision Mr. Beck's decision was premised on faulty legal advice and it does not enhance the quality of debate on important issues when decisions are made on such flawed premises.
Sincerely yours,
'N 4 Donald P. Irwin 91/730 l
LILCO, October 27,1986 CERTIFICATE OF SERVICE In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
Docket No. 50-322-OL-3 I hereby certify that copies of LILCO's Answer to Suffolk County, State of New York, and Town of Southampton Motion to Reopen Record of October 15,1986 were served this date upon the following by first-class mail, postage prepaid.
Lando W. Zech, Jr., Chairman Alan S. Rosenthal, Esq., Chairman U.S. Nuclear Regulatory Commission Atomic Safety.and Licensing 1717 H Street, N.W. Appeal Board Washington, DC 20555 U.S. Nuclear Regulatory Commission Fif th Floor (North Tower)
Commissioner Thomas M. Roberts East-West Towers U.S. Nuclear Regulatory Commission 4350 East-West Highway 1717 H Street, N.W. Bethesda, MD 20814 Washington, DC 20555 Gary J. Edles, Esq.
Commissioner James K. Asselstine Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Appeal Board 1717 H Street, N.W. U.S. Nuclear Regulatory Commission Washington, DC 20555 Fif th Floor (North Tower)
East-West Towers Commissioner Frederick M. Bernthal 4350 East-West Highway
- U.S. Nuclear Regulatory Commission Bethesda, MD 20814 l 1717 H Street, N.W.
Washington, DC 20555 Dr. Howard A. Wilber Atomic Safety and Licensing Commissioner Kenneth M. Carr Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission I 1717 H Street, N.W. Fif th Floor (North Tower)
! Washington, DC 20555 East-West Towers 3350 East-West Highway William C. Parler, Esq. Bethesda, MD 20814 General Counsel U.S. Nuclear Regulatory Commission 1717 H Street, N.W.
Washington, DC 20555
John H. Frye, III, Chairman Atomic Safety and Licensing Atomic Safety and Licensing Board Panel Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 East-West Towers, Rm. 407 4350 East-West Hwy. Bernard M. Bordenick, Esq.
Bethesda, MD 20814 Oreste Russ Pirfo, Esq.
Edwin J. Reis, Esq.
Dr. Oscar H. Paris U.S. Nuclear Regulatory Commission Atomic Safety and Licensing 7735 Old Georgetown Road Board (to mailroom)
U.S. Nuclear Regulatory Commission Bethesda, MD 20814 East-West Towers, Rm. 427 4350 East-West Hwy. Lawrence Coe Lanpher, Esq.
Bethesda, MD 20814 Karla J. Letsche, Esq.
Kirkpatrick & Lockhart Mr. Frederick J. Shon Eighth Floor Atomic Safety and Licensing 1900 M Street, N.W.
Board Washington, DC 20036 U.S. Nuclear Regulatory Commission East-West Towers, Rm. 430 Fabian G. Palomino, Esq.
4350 East-West Hwy. Special Counsel to the Governor Bethesda, MD 20814 Executive Chamber Room 229 Morton B. Margulies, Chairman State Capitol Atomic Safety and Licensing Albany, New York 12224 Board U.S. Nuclear Regulatory Commission Mary Gundrum, Esq.
East-West Towers, Rm. 427 Assistant Attorney General 4350 East-West Hwy. 2 World Trade Center Bethesda, MD 20814 Room 4614 New York, New York 10047 Dr. Jerry R. Kline Atomic Safety and Licensing Spence W. Perry, Esq.
Board William E. Cumming, Esq.
U.S. Nuclear Regulatory Commission Federal Emergency Management East-West Towers, Rm. 430 Agency 4350 East-West Hwy. 500 C Street. S.W., Room 840 Bethesda, MD 20814 Washington, DC 20472 Secretary of the Commission Mr. Philip McIntire l Attention Docketing and Service Federal Emergency Management Section Agency l U.S. Nuclear Regulatory Commission 26 Federal Plaza l
l 1717 H Street, N.W. New York, New York 10278 Washington, DC 20555 Mr. Jay Dunkleberger Atomic Safety and Licensing New York State Energy Office Appeal Board Panel Agency Building 2 U.S. Nuclear Regulatory Commission Empire State Plaza Washington, DC 20555 Albany, New York 12223 I
1
Stephen B. Latham, Esq. Gerald C. Crotty, Esq.
Twomey, Latham & Shea Counsel to the Governor 33 West Second Street Executive Chamber P.O. Box 298 State Capitol Riverhead, New York 11901 Albany, New York 12224 Jonathan D. Feinberg, Esq. Martin Bradley Ashare, Esq.
New York State Department of Eugene R. Kelly, Esq.
Public Service, Staff Counsel Suffolk County Attorney Three Rockefeller Plaza H. Lee Dennison Building Albany, New York 12223 Veterans Memorial Highway Hauppauge, New York 11787 Ms. Nora Bredes Executive Coordinator Dr. Monroe Schneider Shoreham Opponents' Coalition North Shore Committee 195 East Main Street P.O. Box 231 Smithtown, New York 11787 Wading River, NY 11792 rO W
/ James N. Christ, nan Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: October 27,1986
. l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of- )
) Docket No. 50-322-OL-3 LONG ISLAND LIGHTING COMPANY ) (Emergency Planning)
) Docket No. 50-322-OL-5 (Shoreham Nuclear Power Station, ) (EP Exercise)
Unit 1) )
NOTICE OF APPEARANCE Please note the appearance of the undersigned, who has been admitted to prac-tice law before the Supreme Court of the State of Virginia, as one of the Applicant's counselin the above-captioned dockets.
Karen L. Donegan Hunton & Williams 707 East Main Street Post Office Box 1535 Richmond, Virginia 23212 804/788-8731 DATE: October 27,1986 3
e s
p - - - -
r- r -
w---- , , , - , - , -, -
e,, ,,,---,e-------- -, ,- w,, , , , ,,-- - - - -e- -- - - - - - --- -,-- - -
ILCOo October 27,1986 CERTIFICATE OF SERVICE In the Matter of
. LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
Docket No. 50-322-OL-3 (Emergency Planning)
Docket No. 50-322-OL-5 (EP Exercise)
I hereby certify that copies of Notice of Appearance were served this date upon the following by first-class mail, postage prepaid.
Lando W. Zech, Jr., Chairman Alan S. Rosenthal, Esq., Chairman U.S. Nuclear Regulatory Commission Atomic Safety and Licensing 1717 H Street, N.W. Appeal Board Washington, DC 20555 U.S. Nuclear Regulatory Commission Fif th Floor (North Tower)
Commissioner Thomas M. Roberts East-West Towers U.S. Nuclear Regulatory Commission 4350 East-West Highway 1717 H Street, N.W. Bethesda, MD 20814 Washington, DC 20555 Gary J. Edles, Esq.
Commissioner James K. Asselstine Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Appeal Board 1717 H Street, N.W. U.S. Nuclear Regulatory Commission Washington, DC 20555 Fif th Floor (North Tower)
East-West Towers Commissioner Frederick M. Bernthal 4350 East-West Highway U.S. Nuclear Regulatory Commission Bethesda, MD 20814 1717 H Street, N.W.
Washington, DC 20555 Dr. Howard A. Wilber Atomic Safety and Licensing Commissioner Kenneth M. Carr Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 1717 H Street, N.W. Fif th Floor (North Tower)
Washington, DC 20555 East-West Towers l
4350 East-West Highway William C. Parler, Esq. Bethesda, MD 20814 General Counsel r U.S. Nuclear Regulatory Commission John H. Frye, III. Chairman 1717 H Street, N.W. Atomic Safety and Licensing Washington, DC 20555 Board U.S. Nuclear Regulatory Commission East-West Towers, Rm. 407 4350 East-West Hwy.
Bethesda, MD 20814 l
l
Bernard M. Bordenick, Esq.
Dr. Oscar H. Paris Atomic Safety and Licensing Oreste Russ Pirfo, Esq.
Board Edwin J. Reis, Esq.
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission East-West Towers, Rm. 427 7735 Old Georgetown Road 4350 East-West Hwy. (to mailroom)
Bethesda, MD 20814 Bethesda, MD 20814 Mr. Frederick J. Shon Lawrence Coe Lanpher, Esq.
Atomic Safety and Licensing Karla J. Letsche, Esq.
Board Kirkpatrick & Lockhart U.S. Nuclear Regulatory Commission Eighth Floor East-West Towers, Rm. 430 1900 M Street, N.W.
4350 East-West Hwy. Washington, DC 20036 Bethesda, MD 20814 Fabian G. Palomino, Esq.
Morton B. Margulies, Chairman Special Counsel to the Governor Atomic Safety and Licensing Executive Chamber Board Room 229 U.S. Nuclear Regulatory Commission State Capitol East-West Towers, Rm. 427 Albany, New York 12224 4350 East-West Hwy.
Bethesda, MD 20814 Mary Gundrum, Esq.
Assistant Attorney General Dr. Jerry R. Kline 120 Broadway Atomic Safety and Licensing Third Floor, Room 3-116 Board New York, New York 10271 U.S. Nuclear Regulatory Commission East-West Towers, Rm. 430 Spence W. Perry, Esq.
4350 East-West Hwy. William E. Cumming, Esq.
Bethesda, MD 20814 Federal Emergency Management Agency Secretary of the Commission 500 C Street, S.W., Room 840 Attention Docketing and Service Washington, DC 20472 Section U.S. Nuclear Regulatory Commission Mr. Philip McIntire 1717 H Street, N.W. Federal Emergency Management Washington, DC 20555 Agency 26 Federal Plaza Atomic Safety and Licensing New York, New York 10278 Appeal Board Panel U.S. Nuclear Regulatory Commission Mr. Jay Dunkleberger Washington, DC 20555 New York State Energy Office Agency Building 2 Atomic Safety and Licensing Empire State Plaza Board Panet Albany, New York 12223 U.S. Nuclear Regulatory Commission Washington, DC 20555 Stephen B. Latham, Esq.
Twomey, Latham & Shea 33 West Second Street P.O. Box 298 Riverhead, New York 11901
Jonathan D. Feinberg, Esq. Martin Bradley Ashare, Esq.
New York State Department of Eugene R. Kelly, Esq.
Public Service, Staff Counsel Suffolk County Attorney Three Rockefeller Plaza H. Lee Dennison Building Albany, New York 12223 Veterans Memorial Highway Hauppauge, New York 11787 Ms. Nora Bredes Executive Coordinator Dr. Monroe Schneider Shoreham Opponents' Coalition North Shore Committee 195 East Main Street P.O. Box 231 Smithtown, New York 11787 Wading River, NY 11792 Gerald C. Crotty, Esq.
, Counsel to the Governor Executive Chamber State Capitol Albany, New York 12224 A- ; -
Karen L. Donegan Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: October 27,1986
.