ML20069F651

Brief Supporting Suffolk County 830223 Motion to Terminate OL Proceeding & Motion for Certification.Approved & Implementable Local Emergency Plan Required for OL Issuance. Certificate of Svc Encl

ML20069F651
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	03/17/1983
From:	Latham S SOUTHAMPTON, NY, TWOMEY, LATHAM & SHEA
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8303230260
Download: ML20069F651 (24)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

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Before the Atomic Safety and Licensing Board ... 2I 411 :3J

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In the Matter of ) ,

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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322(OL)

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(Shoreham Nuclear Power Station, )

Unit 1). )

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BRIEF OF THE TOWN OF SOUTHAMPTON IN SUPPORT OF SUFFOLK COUNTY'S MOTION TO TERMINATE THE SHOREHAM OPERATING LICENSE PROCEEDING AND THE COUNTY'S MOTION FOR CERTIFICATION Introduction Pursuant to the Board 's request as stated during the Shoreham licensing hearing on February 24, 1983 and as confirmed in a Memorandum and Order dated February 28., 1983, the Town of Southampton submits this brief in support of Suffolk County's Motion to Terminate the Shoreham operating Licensing Proceeding and its Motion

.for Certification to the Commission (both Motions are dated February 23, 1983).

In its February 28, 1983 confirmatory Memorandum and Order, the Board stated that it would permit Southampton to participate in of f-site emergency plan-ning matters pursuant to 10 C.F.R. S2.715(c) pending its ruling on Southampton's status (Order at p. 3 fn.). In a Board Memorandum and Order, dated March 10 1983, 4

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9 Southampton's participation as an interested municipal-ity" pursuant to 10 C.F.R. 52.715(c) on, inter alia, the

'h matters raised by the County's Motion to Terminate the I Shoreham Licensing Proceedings and its Motion for Cert,1,-

g I fication to the Commission was confirmed.

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The Town of Southampton strongly concurs in the

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7 County's determinations concerning off-site emergency r

p planning and the future course of the Shoreham licensing u

proceeding. Accordingly, the Town will not rei.terate i the County's cogent presentation in support of termin-t f ating the Shoreham proceedings and for certification of I

i that question to the Commission. The Town further i understands that counsel for SOC has briefed in further detail the question of certification and the Town joins in those comments. The Town does wish, however, to set a

forth its specific interest in seeking a prompt decision .

by the Commission in favor of the County's Motion as w ell as the Town's view that the questions presented by the County's Mbtion to Terminate should be decided by the Commission without any litigation of factual issues.

The Town's Interest in Of f-Site Emergency Planning

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The Town.of Southampton fully supports the County Legislature's adoption of Resolution No. 111-1983, by i

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which the Legislature specifically declined to adopt or implement the draft County Radiological Emergency Response Plan ("RERP"). In that same Resolution, the Legislature determined that nct RERP could adequately ..

protect the health , welfare and safety of County resi-dents and that no plan would be implemented (see County Supplemental Brief, March 4, 1983, at p. 12 ) .

As set forth at page 8 of the County's Supplemental Brief, the County's emergency planning determinations (culiminating in Resolution No. 111-1983) have been made in furtherance of the County's police ,3ower responsibil-ities as derived from Article IX of the Constitution of the State of New York and Section 10 of the New York State Municipal Home Rule Law. That same responsibility for~ protecting the health, safety and welfare of its citizens applies to the Town. .

During the two weeks of legislative hearings on the i County's draft RERP, a meeting of Town residentt 'nd 1

officials was convened at the Southampton Town Ha on l January 24, 1983 to discuss the Countys' draft RERP.

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f Approximately two hundred residents and elected l

l officials were in attendance.

On February 8, twelve days af ter the County Legis-6 lature concluded its hearings on the draft RERP, the 1

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Southampton Town Board unanimously recommended that the

! County's draft RERP-be disapproved, since, in its view, the draf t RERP could not adequately protect the health and safety of Southampton residents. The Town Board ..

further resolved to oppose any ef fort to substitute LILCO's unauthorized "of f-site plan" as a basis for licensing the Shoreham nuclear plant.

Of particular concern to the Town was that the t

i County's proposed EPZ bisected Southampton virtually in

half, with all Town residents east of the Shinnecock Canal left outside the County's EPZ. In spite of care-ful and exhaustive investigation, the County could not demonstrate that the health and safety of Southampton residents would be protected in the event of a serious accident at Shoreham'.

The Town's support.for the County's adoption of ,

Resolution 111-1983 rests principally on the recognition

'tha t only suffolk, County could develop and implement a local, off-site RERP. The Town and its residents are the direct beneficiaries of the County's action. With-out the County's ability to protect the health, welfare and safety of Southampton residents, Southampton must oppose the licensing of Shoreham. .

On The Basis of The NRC's Regulations

- and The Legislative History Surrounding I Section 5 of Public Law 97-415, The Shoreham Proceeding Must Be Terminated The County's Supplemental Brief clearly establishis that an approved and implementable local emergency plan is a requirement for the issuance of a license for Shoreham (see County Supplemental Brief, pp. 15 et.

f seq.). The County's presentation of the Commission's I regulations and the legislative history leading to the adoption of those regulations do not need repeating -

here. However, in view of the assertions of Staff and LILCO ( see Tr. 20,249-51) that Section 5 of the NRC Fiscal Year 1982-83 Authorization Act (Pub. L.97-415, f 96 Stat. 2067, 2069; January 4, 1983) permits the issu-I ance of a license for Shoreham, further examination of that legislation is warranted. ,

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As noted at pages 33-34 of the County's Supple-t mental Brief, the NRC's adoption of 10 C.F.R. SS 50.33(g) and SD.47 was made in full recognition of the f

provision of Section 109 of the NRC Authorization Act for FY 1980 (Pub. L. 285, 94 Stat. 780 (1980)). Includ-ed in that recogni. tion was the fact that a State or local government's lawful exercise of ,its emergency planning responsibilities under the Commission's regula-

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I tions might preclude the licensing or continued opera-tio'n of a nuclear plant .(see 45 Fed. Reg. at 55,404; SECY-80-275, June 3, 1980, Enclosure L, " Analysis of f ACRS Comments" at p. 9). J.

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! It is clear that Section 5 of the 1982-83 NRC Appropriations Bill merely reaffirms the authority granted under the prior Section 109. That authority

" allowed" (but did not require) the Commission to issue an operating license in the absence of an approved State or local emergency preparedness plan

. . . only if determines that there exists a State, local or utility emergency preparedness law which provides reasonable assurance that the public health and safety is not endangered 1 by operation of the plant.

See Conference Report to accompany H.R. 2330, Report No.

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.97-884, September 28, 1982, at p. 27.

j The Conference Report on Section 5 concludes by ,

f stating:

S Finally, the conferees reiterate and emphasize l the congr,essional intent expressed upon enact-ment of Section'109 of P.L.96-295 that ulti-

! mately every nuclear power plant will have f applicable to it a state emergency response

.' plan that provides reasonable assurance that the public health and safety will not be endangered in the event of an emergency at such plant requiring protective action.

Conference Report, at pp. 27-28.* ,

• This same intent is expressed in the " Joint Explan-atory Statement of the Committee on Conference" concerning Section 109 of Pub. L. 285 (see, p. 28 of that Statement.

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To the extent Staff or LILCO view Section 5 as

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requiring some action by the Board or Commission, it must be noted that the differences in wording between the House and Senate version of Section 5 of Pub. L. ..97-415 (i.e., Section 8 of H.R. 2330 and Section 302 of S.1207) were resolved in favor of the House version.

Thus, the last sentence of S.1207 Section 302 ("The Commission's regulations shall be interpreted in accor-dance with this section.") does not appear either in Section 8 of H.R. 2330 or the final Section 5.*

Similarly, Conference Report No.97-884 essentially adopts ** the " permissive" language of the original House

! Report (Report No. 97-22, Part 2, June 9, 1981, at p.

! 27) rather than the mandatory language of its Senate counterpart (Report No.97-113, May 15, 1981 at p.

(compare: ".

17-18). . . whether the Commission,.in ,

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the absence of a State or local emergency preparedness 6

plan approved by the Federal Emergency Preparedness 1

Neither Section 302 nor Section 8 would have required the Commission to issue a license in the absence of a State or' local plan if it were to find that a State, local or utility plan provided reasonable assurance that the health and safety of the public would be protected.

• • Conference Report 97-884 states, in explaining Section" 5: "This authority allows the Commission

. . . (Conference Report 97-884 at p. 27).

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! Agency, could issue an operating license . . ." (House);

I and ". . . whether the NRC, in the absence of an I

I approved State or local emergency plan, will neverthe-

, less issue an operating license . . ." (Senate; emphasis i

added)).

That fact that the House version of Section 5 of Pub. L.97-415 prevailed was acknowledged by Senator Alan Simpson, in his presentation of H.R. 2330 for approval by the full Senate:

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' I should like to make one final point, Mr.

President, regarding the issue of legislative history. As you know, now that the House has stricken a provision in the conference report adopted by the Senate and sent to the House for action, we no longer have a conference report, but rather are now being asked to concur in the House message on the measure H.R. 2330. For all purposes, however, it is our intention that the joint explanatory statement o'f th'e committee of conference serve as the legislative history for this legisla-tion and the explanation of the intent of the .

conferees, as set forth in the document House Report 97-884, shall serve this purpose.

0 l Remarks by Hon. Alan Simpson, Cong. Rec. S.15314, Decem-l -

ber 16, 1982.

This legislative history clearly established that Section 5 does not require the NRC to issue a license in the absence of an approved State or local RERP simply if the NRC finds that a state, local or utilty plan provides reasonable assurance that public health and l

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[' safety is not endangered by operation of the facility 28,

$ concerned. More importantly, after careful considera-2 I

tion, the Commission expressly declined to permit the g

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h substitution or litigation of bogus, local "off-site" ,,

4 e plans submitted by a utility to support the issuance of r

k a license (see County Supplemental Brief at pp. 31-34).

As the County notes (pp. 26-7 of its Supplemental Is

[ Brief), the regulations do permit deficiencies in local be -

i or state plans to be corrected or compensated for in a j

utility's on-site plan, but no such corrective action is.

possible here given the total absence of any State or local plan.

The Legal Issues Raised By The County's Motion to Terminate Should Be Immediately Certified To The Commission for Prompt Resolution As the County explains at pp. 2-3 and 6-7 of i t's Supplemental Brief, the County's Motion to Terminate raises strictly legal issues which all parties and the Board acknowledge to be of first impression. In the face of the County's unequivocal determination that no local RERP will be developed, approved or implemented for the Shoreham nuclear plant and the equally firm support for the County's position expressed by Governor Cuomo (see Exhibit 5 to the County's supplemental Brief).

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! there are no issues of fact to be decided by the Board

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t or in need of litigation. For compelling practical and legal considerations, the County's Motion to Terminate must be certified to the Commission without further delay.*

Assuming that LILCO and/or the Staf f recommend litigation of LILCO's purported plan in proceedings before this Board, such an exercise would be futile and, the Town believes, legally impermissable. There is no basis for litigation of any purported LILCO plan given the clear requirements of 10 C.F.R. SS 50.33(g) and 50.47 that there must be RERP's of the State and local government (see County's Supplemental Brief at pp.

15-17). Without such local and State plans, the submissions required by 10 C.F.R. S50.33(g) would be deficient as a matter of law. The same would be true of -

any Board findings which purported to satisfy 10 C.F.R.

l 550.47 but which were based solely upon LILCo's purported plan. The Board must also recognize that any effort to litigate LILCO's purported plan under present l circumstances would simply result in the filing of a l

! contention reiterating the legal question posed by the I

The Town concurs with the County's argument, set forth at p. 7 of its Supplemental Brief, that the Appeal Board should be bypassed on the question of certification.

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t-County's Motion to Terminate, namely, that the utility plan is defective as a matter of law for f ailure to comply with 10 C.F.R. SS 50.33(g) and 50.47.

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The Commission has determined to implement the .-

I discretionary authority given to it by Section 109 of Public Law 96-295 by adopting SS50.33(g) and 50.47. The

' Commission having exercised that authority, the Board's I obligation now is to follow the Commission's regulations I

J (see County Supplemental Brief at p. 5). Were the Board f to proceed with litigation of a " purported local RERP" I*

other than one approved by the local government respon-sible for its implementation, it could only do so in defiance of the regulations it is presumably sworn to uphold. If Suffolk Co'unty and the intervenors are mis-taken as to the' plain legal ramifications of SS50.33(g) and 50.47, that is matter of "first impression" for.the .

Commission, not the Board to decide. The Commission, not this Board, determines what standards and regula-tions must gov'ern the issuance of operating licenses under the Atomic Energy Act (see 42 U.S.C. SS 2133(b)(2); 2201(p); 2241(a)).

Conclusion For the reasons set forth above, the Town of Southampton requests that the NRC grant Suffolk County's i --

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k Motion to Terminate the Shoreham Operating License Hear-g i; ing and that it deny LILCO's request for an operating i

license. Southampton further urges the Board to recog-

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nize the urgent need for a prompt resolution of this

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s M matter by certifying the County's Motion to Terminate G<

bj directly to the Commission.

b Respectfully submitted, r

1. l V.

Stepyfn B. Latham f John F. Shea, III

! TWOMEY, LATHAM & SHEA l 33 West Second Street Post Office Box 398 i Riverhead, New York 11901 l

i special Counsel to the Town of Southampton

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4 Dated: March 17, 1983 8

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i UNITED STATES OF AMERICA j

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NUCLEAR REGULATORY COMMISSION t

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'83 195 21 A1152

[ BEFORE THE ATOMIC SAFETY AND LICENSING BOARD I

".. gbM f In the Matter of )

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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322 (OL)

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I (Shoreham Nuclear Power Station,)

Unit 1) )

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i l CERTIFICATE OF SERVICE I

I hereby certify that copies of "BRIEF OF THE TOWN OF SOUTHAMPTON IN SUPPORT OF SUFFOLK COUNTY'S MOTION TO TERMINATE THE SHOREHAM OPERATING LICENSE PROCEEDING AND THE COUNTY'S MOTION FOR CERTIFICATION'.', dated March 17, 1983, submitted by the Town of Southampton, in the above captioned proceeding, have been served on the following, by deposit in the United States mail, first class, this 17th day of March, 1983, and by Federal Express on those parties whose names are preceded by an asterisk.

• Lhwrence Brenner, Chairman Samuel J. Chilk, Secretary Administrative Judge Docketing and Service Station Atomic Safety and Licensing U.S. Nuclear Regulatory Comm.

Board' Panel -

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

• Washington, D.C. 20555

• Ralph Shapiro, Esq.. .

Cammer and Shapiro, P.C.

• Dr. Peter A. Morris 9 East 40th Street Administrative Judge New Yo'rk, N.Y. 10016 l Atomic Safety and Licensing l Board Panel .

• W. Taylor Revoley, III, Esq.

U.S. Nuclear Regulatory Comm. Hunton & Williams

' Washington, D.C. 20555 707 East Main Street P.O. Box 1535 1 *Dr. James H. Carpenter Richmond, Va. 23212 Administrative Judge l Atomic Safety and Licensing Jeffrey Cohen, Esq.

Board Panel Deputy Commissioner & Counsel U.S. Nuclear Regulatory Comm. New York State Energy Office j >

Washington, D.C. 20555 Agency Building 2 Empire State Plaza l[ Edward M. Barrett, Esq. Albany, N.Y. 12223 j i I General Counsel l Long Island Lighting Co. Atomic Safety and Licensing i j 250 Old Country Road Appeal Board Panel Mineola, N.Y. 11501 U.S. Nuclear Regulatory Comm.

l Washington, D.C. 20555 l

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Atomic Safety & Licensing

• Herbert H. Brown Board Panel Lawrence Coe Lanpher l

• l U.S. Nuclear Regulatory Comm. Karla J. Letsche ,.

Washington, D.C. 20555 Kirkpatrick, Lockhart e-Hill ,

I Christopher & Phillips Howard L. Blau, Esq. 1900 M Street, N.W.

217 Newbridge Road 8th Floor Hicksville, N.Y. 11801 Washington, D.C. 20036 David J. Gilmartin, Esq. , Stewart M. Glass, Esq.

Attn: Patricia Dempsey,- Esq. Regional Counsel County Attorney FEMA Suffolk Co. Dept. of Law 26 Federal Plaza Veterans Memorial Highway New York, N.Y.'10278

, Hauppauge, N.Y. 11787 -

Brian McCaffrey

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. MHB Technical Associates Charles Daverro

1723 Hamilton Avenue Long Island Lighting Company

. Suite K 175 East Old Country Road San Jose, Ca. 95125 Hicksville, N.Y. 11801 Nora Bredes Energy Research Group, Inc.

SOC Coordinator 400-1 Totten Pond Road 195 E. Main Street Waltham, Mass. 02154

' Smithtown, N.Y. 11787- .

• Bernard M. Bordenick, Esq.

Daniel F. Brown, Esq. Counsel for NRC Staff ,

Atomic Safety & Licensing U.S. Nuclear Regulatory Comm. .

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

Washington, D.C. 20555 Matthew J. Kelley, Esq.

State of New York

• James Dougherty, Esq. Department of Public Service 3045 Porter Street Three Empire State Plaza Washington, D.C. 20008 Albany, N.Y. 12223 J ~

Steph&. B. Latham 7 g ~ -~ r- - . . . - - .

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