ML20076G869

Response Opposing Suffolk County 830607 & 13 Motions for Commission Ruling on Util Plan for Emergency Preparedness & Immediate Commission Decision Rejecting Transition Plan. Certificate of Svc Encl

ML20076G869
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	06/15/1983
From:	Christman J HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	NRC COMMISSION (OCM)
References
ISSUANCES-OL, NUDOCS 8306160287
Download: ML20076G869 (14)

Text

LILCO, June 15, 1983 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission JY;fcED In the Matter of )

) 'q LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322 (OL) 'Ud 15 ,u3,;4

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

APPLICANT'S ANSWER TO SUFFOLK COUNTY'S

" MOTION FOR COMMISSION RULING ON LILCO'S ' UTILITY PLAN' FOR EMERGENCY PREPAREDNESS" AND " MOTION FOR IMMEDIATE COMMISSION DECISION REJECTING LILCO ' TRANSITION PLAN'"

Suffolk County, an intervenor in this proceeding, has recently filed two more motions asking the Commission to end the proceeding without giving the applicant a hearing. For the reasons below, the applicant, Long Island Lighting Company (LILCO), opposes the County's motions.

I. BACKGROUND The Commissioners are already familiar with events in this docket, and so a brief recital of recent pleadings will be sufficient for background. On June 7, 1983, Suffolk County filed a " Motion for Commission Ruling on LILCO's ' Utility Plan' for Emergency Preparedness." This motion essentially seeks re-consideration of the County's prior motion to terminate this 8306160287 830615 PDR ADOCK 05000322 G PDR 3 03

proceeding on emergency planning grounds, which the Commission denied on May 12, 1983. CLI-83-13, 17 NRC __ (1983). It also resembles a motion for summary disposition of the issue of offsite emergency preparedness, though it does not meet the re-quirements for summary disposition in 10 C.F.R. S 2.749 or include such affidavits as would be necessary to sustain such a motion. Also on June 7 the Suffolk County Executive addressed a letter to the Commissioners reiterating the arguments in tne County's motion.1/ Then, on June 13, Suffolk County filed a

" Motion for Immediate Commission Decision Rejecting LILCO

' Transition Plan.'" (Apparently "immediate" here means "before LILCO has had a chance to be heard.") The June 13 motion asks for the same relief as the June 7 motion but is aimed at only one of the offsite emergency plans now before the Licensing Board.

1/ On the same date the County filed a "Suffolk County Response to 'LILCO's Memorandum of Service of Supplemental Emergency Planning Information' and Request for Summary Disposition of LILCO Emergency Plans" (June 7, 1983). This pleading, like the others, asked for an end to NRC considera-tion of emergency planning. The Licensing Board responded with three orders on June 10, discussed below.

II. THE COUNTY IS SEEKING A FACTUAL DECISION ON THE MERITS WITHOUT A HEARING The reason the County gives for revisiting the Commission's May 12 decision on the motion to terminate is that LILCO has now filed a comprehensive set of interim plans 2/ for emergency preparedness, plus detailed implementing procedures, some six volumes in size. The County wishes the NRC to decide that these plans and procedures are inadequate without even looking at them.3/

2/ In addition to the interim plans, LILCO has submitted a

'LILCO-County plan" that could be implemented by Suffolk County if it chose to do so.

3/ In passing, the County characterizes the Commission's hay 12 order in a way that seems designed to lay the groundwork for delay. On page 2 of its June 7 motion the County says this:

This " utility plan" (in fact, as described below, there are five plans) is now sched-uled first for review by FEMA, then by the NRC Staff, and then ultimately for adjudi-cation before the Licensing Board, all se-quentially in accordance with the Commission's May 12 Order.

The County is evidently trying to suggest that various pieces of the licensing process, such as reviews by different agencies, must proceed in series, not in parallel, thus length-ening the proceeding. Needless to say, LILCO disagrees with the County's interpretation of the May 12 order on this point, as, we believe, does the Licensing Board.

Each of the four interim plans (really only a single plan with four sets of inserts) provides for 8 or 9 people to perform " command and control" and public information functions.4/ The LILCO Transition Plan, which is the only plan that the Commission need consider at present in light of the Licensing Board's June 10 order,5/ provides that these 4/ See Attachment 3 to "LILCO's Memorandum of Service of Eupplemental Emergency Planning Information" (May 26, 1983).

5/ On June 10 the Licensing Board ruled that only the LILCO Transition Plan will be the subject of litigation for the present, and so tne County's argument that the other interim plans and the LILCO-County plan are inadequate is moot, at least for now. Consequently, only pages 6-8 of the County's June 7 motion, the ones dealing with the Transition Plan, are presently ripe.

The Licensing Board did not strike the other plans; all it said was that the intervenors need not submit contentions on other than tne Transition Plan "[u]ntil such time as LILCO can establish that one or more of the governmental entities desig-nated in its emergency plan consent to participate in such a venture." Order Limiting Scope of Submissions, slip op. 3 (June 10, 1983).

Although LILCO does not agree with the Licensing Board's decision to litigate only the Transition Plan at present, that is certainly one reasonable way of getting on with this litiga-tion; thus, LILCO is more than willing to proceed under the Board's order. This is particularly so since all LILCO's in-terim plans (the LILCO Transition Plan and the three governmen-Indeed, since the tal interim plans) are essentially the same.

LILCO Transition Plan is probably the mosc difficult to imple-ment, if it is shown to be adequate, then all the plans will have been shown to be adequate. And, since the functions under the LILCO-County plan are the same as those under the interim plans, the major issues raised by the County with regard to the interim plans will also be pertinent to the LILCO-County plan.

positions will be filled by licensee personnel. Suffolk County believes this calls for summary disposition.

The County is not entirely clear about whether it is ar-guing this point as an issue of law or an issue of fact. In places it appears to say that an emergency plan without a government in the command-and-control position is not litigable as a matter of law. But the Commission decided the contrary in its May 12 decision on the County's motion to terminate.6/

6/ Although the County does not say so, it may be attempting to distinguish the May 12 decision by arguing that there the Commission decided only that the Suffolk County government need not participate, whereas now it must decide that other governments need not participate.

If the County is making this argument, it is unfounded.

Neither the Licensing Board's April 20 decision nor the Commission's May 23 affirmance offers any support for the dis-tinction suggested above. Clearly the decisions covered non-participation by state and local governments. The Commission's view on May 12 was this:

(T]ne agency is obligated to consider a utility plan submitted in the absence of State and local government-approved plans . . . .

CLI-83-13, 17 NRC __, slip op. 3 (1983). And Commissioner Gilinrky characterized the Licensing Board's legal conclusion, which the Commission was affirming, as "that the Commission can consider the utility's plan even in the absence of any state or local government participation." Id., Commissioner Gilinsky's l Separate Views, 17 NRC - , slip op. 6 (1983). Similarly, there is no indication in the Board's or Commission's decision that l the only litigable plan, in the absence of state or local

! government participation, is one run by a federal agency.

l l

t l

In the main, moreover, the County appears to be arguing facts, though without any factual basis. It asserts, without proof, that adequate emergency preparedness is impossible, the same thing it has argued for some time. For example:

The County agrees strongly with Commissioner Gilinsky and submits that one of the undisputed lessons of the TMI accident is that there can be no possi-bility of adequate preparedness without the full support and participation of the responsible governments.

Motion for Commission Ruling on LILCO's " Utility Plan" for Emergency Preparedness 7-8 (June 7, 1983).

Clearly, ncne of those " plans" could provide adequate preparedness to respond to a Shoreham accident.

Id. 8. ,

"[T]here cannot be adequate emergency preparedness" for the population sur-rounding the Shoreham plant under the LILCO " Transition Plan."

Motion for Immediate Commission Decision Rejecting LILCO

" Transition Plan" 2 (June 13, 1983).7/

7/ The County relies here and elsewhere on a statement of Commissioner Gilinsky that there cannot be adequate emergency preparedness if neither the state nor the county governments will participate. But this is a question that needs to be de-cided by looking at the evidence. Moreover, it remains to be seen whether New York State will participate.

If the Commission directs a hearing oon LILCO's so-called " utility plan," the Commission will actually create a regula-tory monster in which millions of dollars will be squandered in reaching the inevi-table conclusion that offsite emergency preparedness is impossible on Long Island.

Letter from Peter F. Conalan to the NRC Commissioners 2 (June 7, 1983) (emphasis in original).

These are allegations of fact. LILCO asserts they are incorrect as a matter of fact and will prove it, as soon as the County produces contentions that state in precisely which ways the County believes the LILCO Transition Plan fails to live up to federal standards. But the issue cannot be decided without first having contentions and then looking at the evidence.

If the Commission accepts the County's argument that it is impossible for the LILCO Transition Plan to meet NRC standards, then it will simply be deferring to the County's own "factfinding" process. The County first voiced its opinion that adequate emergency planning for Shoreham is " impossible" after hearings held by the County Legislature which, in the j opinion of at least one County Legislator, wers convened only to provide a basis for subsequent litigation. See LILCO's Brief'in Opposition to Suffolk County's Motion to Terminate this Proceeding and for Certification, Vol. One, at 57-58 (Mar.

I i

E.

l 18, 1983); .see generally id. 53-58. These hearings were without cross-examination and without a technically qualified decisionmaker, and the standard by which the County judged the emergency plans was not articulated.

Having made a finding of " impossibility" under these fa-vorable circumstances, the County has then trumpeted tilat con-clusion in the press and also attempted to use it as a tool to convince the Licensing Board and Commission to deny LILCO a hearing and indeed to abandon consideration of emergency plan-ning for Shorenam. Although the County has disclaimed any intent to make its own findings binding on the NRC,8/ that would be precisely the effect if the Commission were to accept the County's unsupported allegation that the LILCO Transition Plan cannot possibly be adequate.

One further thought: it is appropriate in these cases to ask where the greater harm lies if the wrong side wins the argument. In this case, if LILCO is right but the County wins the argument, then a $3.2 billion electric power generating fa-cility will be rendered useless, even though it is safe and 8/ Suffolk County's Reply to LILCO's and the NRC Staff's Briefs in Opposition to Suffolk County's Motion to Terminate the Shoreham Operating Licensing Proceeding and the County's Motion for Certification 3 (Mar. 29, 1983).

could be proved safe if a hearing were held. On the other hand, if the County is right but LILCO wins the argument, the harm is merely that the County will have to engage in litiga-tion to prove its point. Since LILCO has the burden of proof and since the County elleges that it has already exhaustively considered emergency planning, this snould be no great burden; certainly it is no great burden in comparison to the litigation in which the County has now engaged for years before the NRC, not to mention numerous special investigations, lawsuits, and other efforts to delay or kill the Shoreham plant.

III. THE COUNTY'S HABIT OF FILING MOTIONS WITH THE COMMISSIONERS IS NOT IN ACCORDANCE WITH THE NRC'S RULES OF PRACTICE Suffolk County continues to follow the practice of ad-dressing both pleadings and correspondence to the Commissioners, even though a Licensing Board has been appointed to decide emergency planning issues. This practice is contrary to usual NRC practice and tends to confuse the proceeding and divert attention from the main business of deciding where the truth lies. The Commission should not condone this practice.

It is also objectionable that the County, though repre-sented by counsel, persists in having its Executive argue tne

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issues in correspondence to the Commissioners. This has the effect of giving the County two opportunities to argue each issue -- one in a pleading and one in a letter from the County Executive. This practice, too, the Commission should not con-done. ,

IV. CONCLUSION Suffolk County is arguing one of two things, both of which are untenable. On the one hand, it occasionally appears to argue that the LILCO Transition Plan is inadequate as a mat-ter of law. But this issue was decided against the County al-ready in the Commission's May 12 decision. On the other hand, the County argues that tne LILCO Transition Plan is inadequate as a matter of fact, but says that it does not want to write contentions specifying how the plan is inadequate or to partic-ipate in an evidentiary hearing on the subject. Either way, the County fails to make a case for terminating this proceed-ing.

The Commission has already given the County its answer:

LILCO is entitled to an opportunity for an evidentiary hearing; the County is entitled to submit contentions and try to prove its case. That is where the matter stands and where it ought

to stand. The County's motions of June 7 and June 13 should be denied.

Respectfully submitted, LONG ISLAND LIGilTING COMPANY By

. Taylor Reveley, III ['

ames N. Christman Huntan & Williams P.O. Box 1535 707 East Main Street Richmond, VA 23212 DATED: June 15, 1983 I

LILCO, Juns 15, 1983 CERTIFICATE OF SERVICE In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)

Docket No. 50-322 (OL)

I hereby certify that copies of Applicant's Answer to Suffolk County's " Motion for Commission Ruling on LILCO's

' Utility Plan' for Emergency Preparedness" and " Motion for Immediate Commission Decision Rejecting LILCO ' Transition Plan'" were served this date upon the following by first-class mail, postage prepaid, or (as indicated by one asterisk) by hand, or (as indicated by two asterisks) by Federal Express.

James A. Laurenson, Chairman ** Secretary of the Commission Atemic Safety and Licensing U.S. Nuclear Regulatory

' Board Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commissicn East-West Tower, Rm. 402A Nunzio J. Palladino, Chairman

• 4350 East-West Highway Room H-lll4 Bethesda, MD 20814 U.S. Nuclear Regulatory Commission Dr. Jerry R. Kline** 1717 H Street, N.W.

Atomic Safety and Licensing Hashington, D.C.

Board U.S. Nuclear Regulatory Victor Gilinsky, Commissioner

• Commission Room H-lll3 East-West Tower, Rm. 427 U.S. Nuclear Regulatory 4350 East-West Highway Commission Bethesda, MD 20814 1717 H Street, N.W.

Washington, D.C.

Dr. M. Stanley Livingston**

1005 Calle Largo Sante Fe, New Mexico 87501

Jonn F. Ahearne, Commissioner

• Thomas M. Roberts, Conmissioner*

Room H-1156 Room H-1103

.U.S. Nuclear' Regulatory U.S. Nuclear Regulatory Commission Commission 1717 H Street, N.W. 1717 H Street, N.W.

Washington, D.C. Washington, D.C.

James K. Asselstine, Atomic Safety and Licensing Commissioner

• Appeal Board Panel Room H-ll36 U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 1717 H Street, N.W.

Washington, D.C. ^

.tomic Saf'ety and Licensing Board Panel Bernard M. Bordenick, Esq.** U.S. Nuclear Regulatory David A. Repka, Esq. Commission Edwin J. Reis, Esq. Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Daniel F. Brown, Esq.**

7735 Old Georgetown Road Attorney (to mailroom) Atomic Safety and Licensing Bethesda, MD 20814 Board Panel U.S. Nuclear Regulatory David J. Gilmartin, Esq. Commission Attn: Patricia A. Dempsey, Esq. East-West Tower, North Tower County Attorney 4350 East-West Highway Suffolk County Department Bethesda, MD 20814 of Law Veterans Memorial Highway Stewart M. Glass, Esq.

Hauppauge, New York 11787 Regional Counsel Federal Emergency Management Herbert H. Brown, Esq.* Agency Lawrence Coe Lanpher, Esq. 26 Federal Plaza, Room 1349 Christopher McMurray, Esq. New York, New York 10278 Kirkpatrick, Lockhart, Hill, Christopher & Phillips Stephen B. Latham, Esq.**

8th Floor Twomey, Latham & Shea 1900 M Street, N.W. 33 West Second Street Washington, D.C. 20036 P.O. Box 396 Riverhead, New York 11901 Mr. Marc W. Goldsmith Energy Research Group Ralph Shapiro, Esq.**

4001 Totten Pond Road Cammer & Shapiro, P.C.

Waltham, Massachusetts 02154 9 East 40th Street New York, New York 10016 MHB Technical Associates 1723 Hamilton Avenue James Dougherty, Esq.**

Suite K 3045 Porter Street San Jose, California 95125 Wasnington, D.C. 20008

3 Mr. Jay Dunkleberger Howard L. Blau New York State Energy Office 217 Newbridge Road Agency Building 2 Hicksville, New York 11801 Empire State Plaza Albany, New York 12223 Matthew J. Kelly, Esq.**

State of New York Spence W. Perry, Esq.** Department of Public Service Associate General Counsel Three Empire State Plaza Federal Emergency Management Albany, New York 12223 Agency 500 C Street, S.W. Ms. Nora Bredes Room 840 Executive Coordinator Washington, D.C. 20472 Shoreham Opponents' Coalition 195 East Main Street Smithtown, New York 11787 James N. Christman Hunton & Williams P.O. Box 1535 707 East Main Street Richmond, Virginia 23212 DATED: June 15, 1983 i

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