ML20024B056

Motion to Defer Commission Action on Certified Question Re Emergency Planning Until Views of Parties Heard.Since No Adequate Offsite Emergency Preparedness Exists or Planned, low-power OL Issuance Futile.Certificate of Svc Encl

ML20024B056
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	06/29/1983
From:	Dynner A KIRKPATRICK & LOCKHART, SUFFOLK COUNTY, NY
To:	NRC COMMISSION (OCM)
References
ISSUANCES-OL, NUDOCS 8307050046
Download: ML20024B056 (11)

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UNITED STATES OF AMERICA h NUCLEAR REGULATORY COMMISSION g ((

Before the Commission jun 29 GE3#

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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322 0.L.

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(Shoreham Nuclear Power Station, )

Unit 1) )

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MOTION TO DEFER COMMISSION ACTION AND FOR COMMISSION TO HEAR VIEWS OF THE PARTIES BEFORE DECIDING CERTIFIED QUESTION REGARDING LOW POWER LICENSE FOR SHOREHAM On April 20, 1983, the Licensing Board certified to the Commission the question whether 10 C.F.R. S 50.47 (d) should apply to Shoreham "in circumstances which raise preliminary doubts that emergency preparedness requirements for full power operation can and will be met in the future." Memorandum and Order Referring Danial of Suffolk County's Motion to Terminate to the Appeal Board and Certifying Low-Power License Question to the Commission (through the Appeal Board), LBP-83-21, 17 NRC

, slip op. 12 (April 20, 1983) (the " Certification order").

The Board determined that Section 50.47 (d) should not be so applied. The Board found that without a Suffolk County offsite emergency plan and County resource assistance to implement any other plan, there could be no finding at this time of reasonable assurance that "offsite emergency preparedness sufficient to permit issuance of a full-power operating license for Shoreham can and will be developed." Id. at 9.

The Board concluded that the Commission should not permit i 83070 46 830629 K 0500032T2

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. , fuel loading "unless and until the impending factual inquiry

[before a Licensing Board] can support . . . " such a finding. Id. at 10 (emphasis added).

The Board certified the question regarding the application of Section 50.47 (d) on its own volition. None of the parties requested that the Board at that time address the issue of low power operation for Shoreham-1/ or certify the issue to the Commission. More importantly, neither Suffolk County, LILCO, the NRC Staff, nor other parties were given an opportunity to brief the matter and thereby present their views to the Board.

, At an Affirmation / Discussion Session of the Commission held on Tuesday, June 28, 1983, it was indicated that the Commission, by a 3 to 2 vote, may on June 30, 1983, both accept the certified question and resolve it by ruling that under the circumstances in Shoreham, Section 50.47 (d) should nevertheless apply.

Suffolk County hereby moves that the Commission should defer action to resolve the certified cuestion until it has heard the views of the parties by the filing of briefs, on the issue of whether 10 C.F.R. S 50.47 (d) should be applicable to Shoreham under the extraordinary circumstances there, and especially in light of new developments of which the Commission

' -1/ The Board stated that LILCO made " passing mention of its view that it could qualify for a low-power operating license notwithstanding the absence of a County emergency plan . . . " in a pleading before the Board.

Certification Order at 7-8. _

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i may not be aware. The County's motion should be granted for the following reasons:

1. The Commission Should Give the County and the Other Parties an Opportunity to be Heard on this Issue. As noted above, the question certified to the Commission was not briefed or argued before the Board. Accordingly, unlike the usual situation, in which the Commission has available to it the briefs and pleadings of the parties from Licensing Board proceedings as to questions certified to it, here the Commission has never heard, diregtly or indirectly, the parties' views on whether or not 10 C.F.R. S 50.47 (d) should be applicable to Shoreham.

Elementary fairness requires that the Commission at least give the parties an opportunity to be heard before deciding upon a crucial matter. This is perhaps particularly so where the matter is one of first impression. As the Board stated,

[W]e are about to embark on a first-time litigation of an applicant's offsite emergency plan in substitution of one sponsored by the local government.

Certification order at 9-10 (emphasis in original) .

On June 8, 1983, LILCO filed a motion for a low power license with the Licensing Board, sending a copy to the Commission. Suffolk County filed its opposition to the motion on June 27, 1983, also sending a copy to the Commission.

However, these documents do not address the issue of whether l

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, -10 C.F.R. S 50.47(d) should be applied to Shoreham.-2/ The County urges that it and the other parties be permitted to file a brief on that issue with the Commission, and that the Commission consider the views of the parties before resolving this critical matter of first impression.

2. Recent Developments Indicate that Offsite Emergency Preparedness Will Never be Sufficient to Support a Full Power Operating License for Shoreham. In addition to receiving and considering briefs of the parties before ruling on the certi-fled question, the Commission should also consider the following recent developments which demonstrate that there will never be 1

adequate offsite emergency preparedness at Shoreham.

a. On May 26, 1983, LILCO filed with the Licensing Board five alternative offsite emergency plans. The Board ruled on June 10, 1983, that four of these plans -- those which envision the participation of governmental entities --

j are not within the scope of the emergency planning proceeding because none of the governmental entities has agreed to participate. Order Limiting Scope of Submissions (June 10, 1983). The only remaining plan, the so-called "LILCO Transition Plan," is to be implemented solely by LILCO, without the participation of any governmental entity.

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The County's opposition does discuss recent factual develop-ments which it believes should have a bearing upon any ,

Commission decision. It does not discuss legal matters  ;

concerning the application of Section 50.47 (d) .

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b. At the Commission's request, FEMA reviewed the LILCO Transition Plan. On June 23, 1983, FEMA submitted l

to the Commission its findings on the LILCO Transition Plan, 1

detailing thirty-four (34) " inadequacies" in terms of l .

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NUREG-0654/ FEMA-REP-1, Rev. 1 (the " FEMA Report").

Some of the inadequacies identified in the FEMA Report appear to be of critical significance to the LILCO Transition

, Plan. For example, as to the fundamental matter of t.he legal authority of LILCO's " local eme'rgency response organization" to implement its plan (Sec. 1.4, Attachment 1.4-1 of the LILCO; Transition Plan), the FEMA Report's evaluation and comments stated:

Inadequate; first, the legal authority cited in Attachment 1.4.1 to the plan (10 C.F.R. 50.47) does not specifically grant the necessary police-powers to a licensee -

to implement those aspects of an off-site

emergency response requiring the ekorcise of governmental authority. Second, the underlying assumption of both' FEMA and NRC off-site emergency preparedness regulations 4

is that the responsibility for responding -

to a radiological emergency at a commercial nuclear reactor rests cooperatively with State, local, and federal governments.

Part I.F. of NUREG 0654/ FEMA-Rep-1", Rev.

1, states at p. 22-23 that "NRC and FEMA recognize that plans of licensees, State ~

and local governments should not be developed in a vacuum or in isolation from-one another. Should.an accident occur, the public can be best -protected when the re-sponse by all parties 31s fully integrated."

Part I.H. emphacizes at_p. 25 that "NRC and' .

FEMA agree that the licensees of nuclear

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3/ The FEMA Report did not consider the further issue of LILCO's inability to implement the LILCO Transition Plan.

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i facilities have a primary responsibility for planning and implementing emergency measures within their site boundaries" (emphasis in original) . In designating an emergency response organization relying ex-clusively on LILCO employees, this plan contravenes these standards.

FEMA Report at 2-3 (emphasis added).

Again, in the critical area of the organization of LILCO's local emergency response organization (Sec. 2.1, Fig. 2.1.2, Procedure 2.1.1 of the LILCO Transition, Plan), the FEMA Report found:

Inadequate, first, the organizational matrix (Fig. 2.1.2) does not include a designation of responsibility for taking protective actions, although Procedure 2.1.1 states that this is the responsi-bility of the Director of Local Response.

The matrix should be changed to reflect this responsibility. Second, responsi-bility for emergency law enforcement activities is not assigned (Reference A.2.b). No provision is made for the likely need for large numbers of police officers. For example, the assignment of traffic gentrol responsibilities to persont (56 are not police officers is gina.yo);Whegiventhenecessityof D :h .w public thoroughfares, ordering Ifi h"I'".b t follow specified routes, and 6Mher di,iraordinary changes in legal dYlving pattgrns.

FEMA Report at 2 (emphasis added).

These and other deficiencies identified by FEMA appear

-to be fatal to the LILCO Transition Plan.

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c. On June 23, 1983, the County filed with the Board a 169-page document entitled " Consolidated Draft I;mergency Planning Contentions," containing draf t coritentions of the County and othe) Intervenors regarding the LILCO Transition Plan. These draft contentions identify dozens.of serious deficiencies, many of which cannot be rectified.because LILCO l has, illegally taken upon itself such governmental. functions l

l as declaring an offsite emergency and blockading public streets and highways to control traffic. These contentions demonstrate that offsite emergency preparedness is impossible without j tile participation of the County.

Accordingly, Suffolk County maintains that in' light of-these new developments, there can and will be no adequate '

offsite emergency preparedness for Shoreham. Under these facts, the application of 10 C.F.R. G 50.47 (d) to permit the low power operation of Shoreham would'be a futile act, entailing enormous costs, with no attendant benefits.

Suffolk County respectfully requests that, for the reasons stated herein, the Commission grant this motion and permit the parties to brief the Commission before it rules s

upon the certified question as to the application of 10 l 1

C.F.R. 50. 47 (d) to Shoreham. I s

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. i Respectfully submitted, David J. Gilmartin Patricia A. Dempsey Suffolk County Department of Law Veterans Memorial Highway Hauppauge, New York 11788

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f l Herbert H. Br /

Lawrence Coe anpher Alan Roy Dy ner KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS 1900 M Street, N.W., Suite 800 Washington, D.C. 20036 Attorneys for Suffolk County June 29, 1983 l

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• - UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission

)

In the Matter of )

)

LONG ISLAND LIGHTING COMPANY )

) Docket No. 50-322 (0.L.)

(Shoreham Nuclear Power Station, )

Unit 1) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of MOTION TO DEFER COMMISSION ACTION AND FOR COMMISSION TO HEAR VIEWS OF THE PARTIES BEFORE DECIDING CERTIFIED QUESTION REGARDING LOW POWER LICENSE FOR SHOREHAM, dated June 29, 1983, and Letter from Peter F. Cohalan to the NRC Commissioners, dated June 29, 1983, have been served to the following this 29th day of June 1983, by first class mail, except as otherwise noted. .

Lawrence J. Brenner, Esq. Ralph Shapiro, Esq.

Administrative Judge Cammer and Shapiro Atomic Safety and Licensing Board 9 East 40th Street U.S. Nuclear Regulatory Commission New York, New York 10016 Washington, D.C. 20555 Howard L. Blau, Esq.

Dr. James L. Carpenter 217 Newbridge Road Administrative Judge Hicksville, New York 11801 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission **W. Taylor Reveley III, Esq.

Washington, D.C. 20555 Hunton & Williams P.O. Box 1535 707 East Main St.

Dr. Peter A. Morris Richmond, Virginia 23212 Administrative Judge Atomic Safety and Licensing Board U.S.' Nuclear Regulatory Commission Mr. Jay Dunkleberger .

I Washington, D.C. 20555 New York State Energy Office l Agency Building 2 l Edward M. Br tett, Esq. Empire State Plaza i General Counsel Albany, New York 12223 l Long Island Lighting Company 250 Old Country Road Mineola, New York 11501 Stephen B. Latham, Esq.

Twomey, Latham & Shea Mr.. Brian McCaffrey P.O. Box 398 Long Island Lighting Company 33 West Second Street 175 East Old Country Road Riverhead, New York 11901 Hicksville, New York .11801 j

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Marc W. Goldcmith Mr. Jeff Smith Energy Racearch Group, Inc. Shoreham Nuclear Power Station 400-1 Totten Pond Road P.O. Box 618 Waltham, Massachusetts 02154 North Country Road Wading River, New York 11792 Joel Blau, Esq. MBB Technical Associates New York Public Service Commission 1723 Hamilton Avenue The Governor Nelson A. Rockefeller Suite K Building San Jose, California 95125 '

Empire State Plaza ,

Albany, New York 12223 Hon. Peter Cohalan Suffolk County Executive David J. Gilmartin, Esq. H. Lee Dennison Suffolk County Attorney Building H. Lee Dennison Building Veterans Memorial Highway Veterans Memorial Highway Hauppauge, New York 11788 Hauppauge, New York 11788 Ezra I. Bialik, Esq.

Atomic Safety and Licensing Assistant Attorney General Board Panel Environmental Protection Bureau U.S. Nuclear Regulatory Commission New York State Department of Washington, D.C. 20555 Law 2 World Trade Center Docketing and Service Section New York, New York 10047 Office of the Secretary U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D.C. 20555 Appeal Board U.S. Nuclear Regulatory Bernard M. Bordenick, Esq. Commission David A. Repka, Esq. Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Jonathan D. Feinberg, Esq.

Staff Counsel, New York Stuart Diamond State Public Service Comm.

Environment / Energy Writer 3 Rockefeller Plaza NEWSDAY Albany, New York 12223 Long Island, New York 11747 Stewart M. Glass, Esq.

Daniel F. Brown, Esq. Regional Counsel Atomic Safety and Federal Emergency Management Licensing Board Panel Agency U.S. Nuclear Regulatory Commission 26 Federal Plaza Washington, D.C. 20555 New York, New York 10278 James B. Dougherty, Esq.

• Commissioner Victor Gilinsky 3045 Porter Street, N.W. U.S. Nuclear Regulatory Comm.

Washington, D.C. 20008 1717 H Street, N.W.

Room 1103

• Chairman-Nunzio J. Palladino Washington, D.C. 20555 U.S. Nuclear Regulatory Commission 1717 H Street, N.W., Room 1114

• Commissioner James K-. Asselstine

Washington, D.C. 20555 U.S. Nuclear Regulatory Comm.

1717 H Street, N.W.

Room 1136 Uashington, D.C. 20555 l- _

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• Commissioner John F. Ahearne l U.S. Nuclear Regulatory Commission l 1717 H Street, N.W. i Room 1156 Washington, D.C. 20555

• Commissioner Thomas M. Roberts U.S. Nuclear Regulatory Commission 1717 H Street, N.W.

Room 1113 Washington, D.C. 20555

• Mr. Paul Bollwerk Office of the General Counsel U.S. Nuclear Regulatory Commission 1717 H Street, N.W.

Washington, D.C. 20555

• Mr. William Reamer '

Assistant to Chairman Palladino U.S. Nuclear Regulatory Commission 1717 H Street, N.W.

Washington, D.C. 20555

• Mr. William Manning Office of Commissioner Gilinsky U.S. Nuclear Regulatory Commission 1717 H Street, N.W.

Washington, D.C. 20555 l

Alan Roy Dynn r /

KIRKPATRICK, LOCKHART, HILL, CHRISTOPH R & PHILLIPS 1900 M Street, N.W.,' Suite 800 Washington, D.C. 20036 June 29, 1983 .

• Hand Delivery 6/29/83

• • Federal Express 6/29/83

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