ML20147A765

Transcript of 880225 Conference Call in Bethesda,Md Re Remand/Emergency Planning.Pp 19,279-19,294

ML20147A765
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	02/25/1988
From:	Atomic Safety and Licensing Board Panel
To:
References
CON-#188-5738 OL-3, NUDOCS 8803010334
Download: ML20147A765 (18)

Text

r

~

~

'=;~

~

j

)

j 0 7 G~ IN A~

l" O UNITED STATES MUCLEAR REGULATORY COBGESSION e

~

e........................=.....=...........................

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD IN THE MATTER OF DOCKET NO:

5 0-3 2 2 -t>L-3 (Remand / Emergency LONG ISLAND LIGHTING COMPANY Planning)

(Shoreham Nuclear Power Station, Unit 1) i CONFERENCE CALL LOCATION:

Bethesda, Maryland PAGES:

19279 through 19294 DATE:

February 25, 1988 c m.....................................................

fpo /

o \\

HERITAGE REPORTING CORPORATION

(*

ODuwam 1228 L Street, N.W., Sake 600 -

Washington, D.C. 20005 i

(202) 625 4888 seg3020334 eso225 ' m T

ADOCK 05000322 PDR

_w b--

19279 UNITSD STATES OF AMERICA 1

k NUCLEAR REGULATORY COMMISSION-2 BEFORE THE' ATOMIC SAFETY AND LICENSING BOARD 3

...... _ _ _ _ _ _ _ _ _ _ _ _x 4

In the Matter of:

Docket No. 50-322-OL-3 5

.LONG ISLAND LIGHTING COMPANY

(Remand / Emergency 6

(Shoreham Nuclear Power Station, Unit 1)

Planning) 7

.....____________x 8

8

Thursday, February 25, 1988 10 3

Room 427 II 4350 East-West Highway

)l '

Bethesda, Maryland 20815 12 The telephone prehearing conference in the g

above-entitled matter convened at 10:34 a.m.

14 l

BEFORE:

15 1

a JUDGE JA!!ES P. GLEASON, Chairman 16 Atomic Safety and Licensing Board

~

513 Gilmoure Drive l

l U

Silver Spring, Maryland 20901 1

j 18 JUDGE JERRY R. KLINE Atomic Safety and Licensing Board i

I9 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 i

20 JUDGE FREDERICK J.

SHON l

Atomic Safety'and Licensing Board 21 U.S. Nuclear Regulatory Commission 22 Washington, D.C. 20555 23 24 25 Acme Reporting Company i

J

f 19280 dic-2 I

1 APPEARANCES:

i k

2.

On behalf of the NRC Staff:

3 GEORGE E. JOHNSON, ESO.

EDNIN J. REIS, ESO.

(

Office of General Counsel 4

Washington, D.C.

20555 5

(301)492-1586 i

-l 6

On behalf of Intervenor Suffolk County:

1 7

LAWRENCE C. LANPHER, ESQ.

HERBERT BRONN 8

KARLA J. LETSCHE Kirkpatrick & Lockhart 9

1800 M Street, N.W.

Washington, D.C. 20036-5891 10 (202)778-9011 On behalf of Intervenor State of New Yorks 11 i

i 12 RICHARD J.

Z A!!NLEUTER, ESO.

Special Counsel to the Governor 13 Executive Chamber - Room 229 State Capitol I

i 14 Albany, New York 12224 (518)474-1273 j

15 On behalf of LILCO-i 16 j'

DONALD P.

IRWIN, ESO.

t 17 JAMES N. CHRISTMAN, ESQ.

[

LEE ZEUGIN 18 Hunton & Williams 707 East Main Street i

19 P.O. Box 1535 Richmond, Virginia 23212 j

20 (804)788-8357 j

2)

On behalf of FEMA:

4 23 WILLIAM R. CUMMING, ESO.

Office of General Counsel Room 840 I

500 C Street, S.W.

23 Washington, D.C. 20472 i

24 (202)646-4103 4

25 Acme Reporting Company 47074 6744944

19281 alc-3 PR9EEEE1EEE 1

(

JUDGE GLEASON:

This is a telephone conference 2

called by the Board on Emergency Planning, the OL-3 Board, 3

with the parties to communicate a decision with respect t

4 to the summary disposition motions on the so-called legal 5

authority contentions and also to provide some guidance 6

with respect to the procedure from here on out.

7 With me here in the conference is Judge Shon g

and Judge Kline.

And I would like to have you identify 9

yourselves again for the record for the Reporter because 10 I was just prior to this trying to get to the question of 33 whether we were coming through loud and clear all right.

12 So if we could do it in this order:

with the 13 Applicart, with the Staff, with FEMA, with the Intervenors, 34 representatives of both the county and the state of 15 New York It would be helpful.

16 MR. IRWIN:

Judge Gleason, this is Mr. Irwin 37 f r Long Island Lighting Company.

With me are Messrs.

18 Christman and Zeugin.

39 MR. JOHNSON:

This is George E.

Johnson 20 representing the NRC Staff.

And with me is Edwin J.

Reis, 21 Office of the Staff.

22 MR. CUMMING:

This is William R. Cumming, Counsel 23 for FEMA:

21 MR. LANPHER:

Mr. Lanpher, Counsel for Suffolk a5 Acme Reporting Company as,,.a.....

s

19282 dic-4 1

County.

With me are Mr. Brown'and Ms. Letsche.

(

MR. ZAHNLEUTER:

Richkrd Zabnleuter representing 3

Governor Cuomo and the State of New York.

4 JUDGE GLEASON:

All right.

Thank you.

The decision of the Board with respect to 5

the motions for summary disposition filed by the Applicant 6

7 is that the Applicant has not proven that there are no

'i general' issues to be. heard in connection with the eight 8

issues pending before the Board, thu so-called legal 9

10 authority issues.

11 Nor can the Board conclude that the Intervonors 4

have had an adequate opportunity to evaluate changes in 12 13 LILCO's Provision 9 which are relevant to the issues 14 involved.

J 15 Therefore, the Board is denying the motions with L

respect to tha cig'.;t contentions that are still pending 16 l

17 before the Board.

I do want to emphasize that the Board's decision 18 19 is not based on the 13tervenors' submissions of material 20 facts.

Rather it is based on the responses and the l

21 affidavits submitted thereto.

I wanted to state this now because our denial 22 l

of this motion should not be construed as affirming the 23 1

necessary relevance to the proceeding of those issues i

24 t

25 raised in the so-eslied memorandum of facts, statement of J

l Acme Reperting Company

19283_

dic-5 1

iacts.

(-

Our written opinions will provide a further 2

clarification of this clarification, if you will.

Now 3

(

that is all that I really care to say with respect to the 4

1 decision of the Board on the motions.

5 Let me get on with the. question of<some guidance 6

7 to the parties.

There is of course considerable guidance 1

8 by the Commission both in the 8613 remand decision, in the new rule itself, and particularly in_the discussion D

and commentary that accompanies the publication of that 10 11 rule.

We must predicate our judgements on whether 12 LILCO's emergency plan meets the regulatory and criteria 13 requirements on the fact that government officials--state ja 15 and county--will produce a best efforts response to protect 16 the public's health and safety.

And we must presume that that response will 17 follow the LILCO plan, a presumption that is rebuttable 18 only by timely evidence that the Intervenors would follow 33 a different but adequate and feasible plan that could 20 21 be relied upon.

This of course just cites the regulatory 22 framework but it does, it seems to us, point out that there 23 are two avenues that one could follow and can be followed.

24 Let me talk for a minute on the question of 25 Acme Reporting Company

.o,,,.....

19284 dic-6 1

burden of proof and burden of proceeding during the t

2 forthcoming hearing.

3 As a preliminary but important matter, let 4

me discuss our views of the issues for that hearing first.

5 And I am going to go off the record here for a minute 6

because there is one thing I have to clarify with my 7

Board members.

8 I will be right back. It will just take a second.

9 (Discussion of f the record) 10 All right.

This is Judge Gleason and I am 11 back again.

12 First of all, the Board will not permit the filing 13 of any additional motions for summary disposition with 14 respect to the so-called legal authority contentions or, 15 as a matter of fact, with respect to any of the remaining 16 issues that are before us.

17 We, in our hopeful management of this case,

, 18 believe that any further filing would be an unnecessary 19 diversion to the main task and we just do not want to 20 receive any further motions in that connection.

21 We have to bring the remaining issues to a 22 hearing and we have to get them resolved at our level of 23 adjudication as promptly as we can do so.

24 It appears to us that one effect of the new 25 rule is to have us--meaning the Board and the parties--

Acme Reporting Company

, m,.,.....

-19285 dic-7 prescind, if you will, from a strict reading of the 1

k 2

contentions' remaining --contentions 1, 2, 4, 5, 6, 7, 8 s.nd i

10--concerning the legal authority question.

3 And instead, concentrate on whether the local t

- k 4

plan with its concomitant but best efforts or other response 5

I 6

mcets the regulatory requirements.

Therefore, in that context the issues to be litigated have to reflect that 7

8 emphasis.

It would appear to us therefore that the 9

contentions should raise the issue to be litigated and 10 11 resolved in the following manner.

I won't go through all eight of the contentions because they follow pretty much 12 l

the same format and I will spell it out further in the 6

13 order that we will send out confirming this decision and this 14 c

15 guidance we are giving.

)

If we take contention 5, the x. sue in the light l

16 17 of the new rule really is thist whether LILCO's emergency plan and the best efforts of the state and county governmente l

18 will satisfy regulatory requirements concerning the

+

e 19 r

I activation of sirens and the directing of emergency 20 21 broadcast system messages.

I will read one more, contention 6.

The issue l

22 there it seems is whether LILCO's emergency plan and 23 the best efforts of state and county governments will 24 satisfy the regulatory requirements concerning the making 25 Acme Reporting Company

19286 dic-8 of decisions and official recommendations to the public 3

1 on appropriate actions necessary to protect public health g

and safety.

3

(

And as I indicated before, each contention 4

should be modified to read accordingly.

Now let me talk g

briefly about the burden of proof and the burden of going 6

forward.

7 If we understand LILCO's case clearly, it is 8

basically that based on matters either adjudicated or g

unprotested in the record, material facts accepted by the 10 Board, prior decisions of the Board and relevant parts 33 f Revision 9, it can satisfy its burden of proof that the 12 LILCO plant, supplemented by a best efforts response, will 13 be adequate to meet the standards, that adequate protection y

measures with respect to those measures can and will be 15 taken in the event of an emergency.

16 And therefore this plan does provide reasonable 3.,

assurance that public health and safety is not endangered 33 by operatiot. of the Shoreham facility.

39 We believe it would be helpful, as the Intervenors 20 I believe have requested, assuming the above summary is 21 l

e rrect, that since the record in this case is very 22

'*'gthy and in many cases a different kind of circumstances 23 were prevailing at least in the minds of parties--but since 34 the record is basically so lengthy, that LILCO should 25 l

Acme Reporting Company

.,o,,......

I 19287

-dic-9 cite at the outset those parts of the record on which 1

i

(

2 its case is partly founded.

That is not to say'that it would foreclose 3

i 4

them from bringing up other parts..But at least we ought i

l to make an effort to keep everybody advised as_the case 4

5 goes'on as to where the foundation of the particular-case 6

is with respect to the issues still in. front of us.

7 Now additionally,the Commission in CLI-8613 8

i has outlined five or six areas, most of which evolve around an

~

1 9

b issue of time,which the Board affirms are. required to be 10 I

addressed by the parties in the forthcoming proceeding.

i 11 Now once having established, assuming the 12 summary of the Applicant's case is correct, having

)

13 i

established in the record what will be essentially a prime l

14 1

13 facie case on the part of LILCO, the burden of going i.

forward will then shift to the Intervenors.

j 16 i

I Now its burden, simply stated, would be to l

17 demonstrate that LILCO's emergency plan supplemented by

}g 1

a best efforts response or some other response will not

]

19 meet the adequacy standards with respect to the issues 20 a

21 before us.

And therefore, no reasonable assurance finding 22 can be made as we indicated.

That adequate standard of 23 course is that adequate measures will be taken and can be 1

24 r

,i 25 taken in an emergency.

Acme Reporting Company

19288 dic-10 In this context,-the lack of legal authority 1

l

(-

2 cannot in our judgement be viewed as a prohibition i

i nor can protestations that-state and county officials y

3

(

would not use the LILCO plan if another timely proffer

(

4 of adequately responding in an emergency.is not made.

l 5

l That is a little bit of a convoluted sentence 6

or statement that I made.

All we are saying in that 7

context is that there is_ going to be a positive responsibility

~

8 on the part of the Intervenors to demonstrate with

(

9

{

evidence that the LILCO plan, as I have outlined it-l 10 before, is inadequate.

11 s

And a defense of no legal authority or.just 12 protestations that the state and county officials would

)

13 use the plan' will not be adequate in the' absence of

{

not y

l another timely offer of another adequate plan which will i

15 l

respond to their emergency.

l 16 l

Now generally that completes the guidance which 37 the Board cares to give at this point or which the Board 18 cares to give, I might say.

It really is the responsibilities 39 of the parties to litigate this.

20 It is not for the Board to decide the issue.

21 We will be looking forward to Ieceiving your proposed 22 schedule and we will attempt to get out as promptly as 23 Possible our written opinion on the summary disposition i

24 motions which we have decided today.

25 Acme Reporting Company

19289 dic-ll I have to go off the record here Excuse me.

1 1

one more minute.

2 (Discussion off the record) 3 I am back now.

This is Judge Gleason again.

4 I wanted to advise you that the Board has 5

granted Intervenors' motion to extend the discovery on 6

the school bus driver issue to February 28th.

7 JUDGE KLINE:

29th.

8 JUDGE GLEASONt 24th, I am sorry.

9 All right.

Now are there any questions which 10 relate to clarification with' respect to things that I have said either en the decision or the action with the going 12 forward of the issues? 13 MR. LANPHER: Judge Gleason, this is Fr. Lanpher. 14 Did I hear correctly that the order which will reflect 15 these various things that people are trying to take notes 16 on will be out later today? g7 JUDGE GLEASON: Yes it will, 18 MR. LANPHER: We would appreciate it, as is the gg if she would give us a call 20 policy of your secretary, because it is difficult to take this down, the notes. 21 I would just like to state on behalf of Suffolk 22 County that we do object to the rulings that have been 23 l issued. We don't think that they are correct. We will 24 i address them in an approiriate pleadings to the Board. 25 Acme Reporting Company ,,n........

i i 19290 l dic-12 i ? 1 s l 1 JUDGE GLEASON: Fine. l ( ' 1 2 MS. BROWN: This is Mr. Brown for the County. 3 Could.you please provide us with some illumintation of ( i 4 when you might be issuing an opinion of.the reasons for the } l l 5 Board's rulings that you made today? l 4 i 6 JUDGE GLEASON: The rulings on the summary 1 i 7 disposition motion? i 8 MR. BROifN: Yes. i 9 JUDGE GLEASON: I just'cannot do that. We are 1 10 working hard on them and we get them out as rapidly ar# 11 we can. It really is not essentiel as far as going ahead 12 with your responsibilities. You just have to know whether i 13 it is a litigatablo issue or it is not. ] 14 I cannot give you any firm date. We will try to i l 15 do the best we can. i 16 MR. BRONN: This is tir. Brown again. There'is { 17 actually one way in which it does have some relevance t 18 to our responsibilities to our client in particular. As l 19 !!r. Lanphor mentioned a minute ago, we do havo objections i j 20 to the rulings. 21 We in fact believe they are fundamentally in 1 22 error. And it is not pc ssible for un to bring to' the 1 l 23 Board's attentien the reasons for our conclusion until we l 24 underutand the rationale of the Board. l 25 That puts us in a-- l Acme Reporting Company

19291 dic-13 1 JUDGE GLEASON: I do not understand how you can ( have any kind of a motion of fundamental error with 2 respect to decisions that have been announced or granted 3 { in your interest or in your behalf. 4 We were talking about the summary disposition 5 6 motions. 7 MR. BROWN: I think that you, if I am not 8 incorrect--and I am certainly prepared to be corrected. ng was that you have ruled that thS 9 But my understanc phraseology may be presumed and the other use of the word 10 11 "may" in the regulations in fact stands for the word "will" 12 and that the Board felt that it must make certain conclusions which we believe are categorically contrary to the la 14 regulatory intent. We would want to know the Board's rationale 15 for that so that we could bring it to the Board's attention 16 17 and, if necessary, take any additional steps which we at that point thought was in the interest of our client. 18 JUDGE GLEASON: Well, you are talking about with 19 respect to the guidance that the Board is giving you. 20 21 MR. BROWN: Perhaps. I am certainly talking about 22 what you said. JUDGE GLEASON: Well, I said that that was Z) guidance because you are the people that wanted the Board 24 to give guidance and we are giving it to the extent that we 25 Acme Reporting Company .n,,.......

19292 dic-14 I have made some conclusions. And I hope to have that out 2 today. 3 MR. BRONN: Con:lusions with respect to the ( "may be presumed" as opposed to "will be presumed" you 4 5 expect to have out today? 6 JUDGE GLEASON: Yes. 7 MR. BRONN: Thank you. 8 MR. JOHNSON: Your Honor, this is George Johnson. 9 I was wondering in light of the timing of your announcement 10 this morning whether you would consider extending the time l 11 for the parties to come up with a schedule? 12 JUDGE GLEASON: I think we would consider that 13 favorably. Do yod have some suggestions to make? 14 MR. JOHNSON: Maiting until Tuesday. 15 MR. LANPHER: Haiting until Tuesday. Suffolk 16 County does not object to waiting until Tuesday. This is 17 Mr. Lanpher who is speaking. I think that makes sense. 18 JUDGE GLEASON: All right. 19 MR. IRh'IN : Judge Gleason, this is Mr. Irwin. 20 He are confident that all the work can be done by Tuesday l 'l and probably before. We don't object to that extention. 22 JUDGE GLEASON: Is there any objection to waiting 23 until Tuesday? 24 MR. ZAHNLEUTER: Zahnleuter. And I have no l 25 objection either, especially since I have not received Acme Reporting Company ,,e>.

f 19293 dic-15 i l' 1 any orders as of th'is.date, probably because I am in ( 2 Albany and it takes longer. l 3 I would appreciate the time. j 4 MR. CUMMING. FEMA defers to the Staff's ('- 5 suggestion. 6 JUDGE GLEASON: All right. Well'then the Board will extend the responsibilities to come up with 7 schedule requirements until next Tuesday, the close of 8 l 9 business next Tuesday. i 10 MR. CUliMING: Thank you. i 11 JUDGE GLEASON: All right, Gentlemen. That is i 12 about all we have to say. i 13 MR. CUMMING: Judge Gleason? i r 14 JUC-" GLEASON: Yes. f 15 MR. CUMMING: This is Bill Cumming from FEMA. 16 JUDGE GLEASON: Yes. 1 17 liR. CUMMING: Are Judge Kline and Judge Shon j i 18 still on? 19 JUDGE GLEASON: Yes they are. 20 MR. CUMMING: I think it might be an appropriate time for me to notify the Board of a thing that we have 21 basically notified all the parties and NRC, and that is 22 that FEMA's review of Revision 9 this time, because of 23 the fact that now there is in fact in place a utility 24 4 plan rule and supplement to the NUREG which concerns 25 Acme Reporting Company

19294 dle-16 1 utility plan--FEMA would in fact be making the overall I ( 2 bottomline finding on the plan'with-respect to its adequacy subject then to the conduct of the exercise. 3 ( So there is in fact a difference in FEMA's 4 5 fundamental legal position from where we were with l respect to the OL-S in the prior proceeding. 6 7 And I think the Board should be on notice 8 that that is our objective in a bottomline finding with respect to Revision 9 and ultimately on the exercise 9 10 conduct. 11 JUDGE GLEASON: All right. We understand what i 12 you are saying. 13 Anything else, Gentlemen? 14 MR. IRWIN: Not from LILCO, Judge Gleason. 15 MR. JOllNSON: Nothing from the Staff. 16 JUDGE GLEASON: Anything from Intervenors? 17 MR. LANPHER: No, t , 18 JUDGE GLEASON: All right. Thank you, j 1 19 Gentlemen. 20 (Whereupon, at 11:00 a.m., the telephone 21 conference in this matter was concluded) 22 23 24 25 Acme Weporting Company

1 CERTIFICATE 2 ( 3 This is to certify that the attached proceedings before the 4 United States Nuclear Regulatory Commission in the matter of: ATOMIC SAFETY AND LICENSING BOARD: 5 Name: LONG ISLAND LIGHTING COMPANY (SHOREHAM NUCLEAR 6 POWER STATION, UNIT 1) 7 Docket Number: 50-322-OL-3 8 Place: Bethesda, Maryland 9 Date: February 25, 1988 10 were held as herein appears, and tb. this is the orig,inal 11 transcript thereof for the file of the United States Nuclear 12 Regulatory Commission taken stenographically by me and, 13 thereafter reduced to typewriting by me or under the direction 14 of the court reporting company, und that the transcript is a 15 true and accurate recer of the f recoin proceedings. 16 /S/ l /, b ZT M 88 17 (Signature typed): Donna L. Cook 25 February 88 l 18 Official Reporter 19 Heritage Reporting Corporation 20 21 22 23 24 25 ( Heri'.sg, lloporting Corporation (202) 628-4888}}