ML20077H780
| ML20077H780 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 08/08/1983 |
| From: | Christman J HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, NUDOCS 8308110300 | |
| Download: ML20077H780 (11) | |
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LILCO, August 8, 1983 80CKETED USNRC
'83 AUG 10 51:52 UNITED STATES OF AMERICA 0FFICE CF SECQETA ? '
NUCLEAR REGULATORY COMMISSION 00CKbiggCy'rv!
Before the Atomic Safety and Licensing Board i
In the Matter of
)
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LONG ISLAND LIGIITING COMPANY
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Docket'No. 50-322 (OL)
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Emergency Planning (Shoreham Nuclear Power Station, )
Unit 1)
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LILCO'S ANSWER TO SUFFOLK COUNTY'S MOTION FOR REJECTION OF LILCO TRANSITION PLAN AND FOR CERTIFICATION TO THE COMMISSION On August 4, 1983, intervenor Suffolk County filed its
" Motion for Rejection of LILCO Transition Plan and for Certifi-cation to the Commission" (hereinafter " Motion").
Suffolk County argues that the LILCO Transition Plan, an offsite emer-gency plan under which LILCO would assume most of the responsi-bility for emergency response in the case of an accident at its Shoreham Station, is automatically inadequate because neither Suffolk County nor the State of New York has agreed to partici-pate in it.
For the reasons stated below, LILCO opposes Suffolk County's motion.
8308110300 830800 PDR ADOCK 05000322 O
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I.
The constant need to reargue the same issue is only diverting attention from the litigation of the: facts Suffolk County has made the same argument so many times now that it is getting difficult to count.
The Suffolk County Legislature decided on February 17, 1983, to oppose radiological emergency planning.
A week later the County filed its Motion to Terminate the Shoreham Operating License Proceed-ing (Feb. 23, 1983).
The argument was then, as it is now, that without Suffolk County's help it is impossible to meet the NRC emergency planning requirements.
The Licensing Board believed that the County's filing did not clearly raise and support the legal issues and ordered a briefing schedule.1/
On March 4 the County filed a supplemental brief.
After LILCO and the NRC I
Staff filed briefs in response, the County filed an j
unauthorized reply,2/ along with a request for leave to file it.
The Licensing Board, and subsequently the Commission, de-cided that the County was wrong.
Memorandum and Order, Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
CLI-83-13, 17 NRC (1983).
1/
Confirmatory Memorandum and Order Directing the Submission 1
of Briefs Addressing Suffolk County's Motion to Terminate this I
Proceeding (Feb. 28, 1983).
2/
Suffolk County's Reply to LILCO and the NRC Staff's briefs 4
in Opposition to the Shoreham Operating License Proceeding and the County's Motion for Certification (Mar. 29, 1983). i t
,.._.m.
.-__.,___,_,o
Having thus lost the argument, the County set out to make it anew.
As soon as LILCO filed its offsite plans, including the Transition Plan as well as three other modules to be used if the State, FEMA, or the NRC participated, the County filed its June 7 " Motion for Commission Ruling on LILCO's
' Utility Plan' for Emergency Preparedness," making the argument it now makes to this Board.
On June 13 it filed its " Motion for Immediate Commission Decision Rejecting LILCO ' Transition Plan.'"
The rejection of these efforts by the Commission on procedural grounds was what prompted the instant motion to this Board.
Next the County attacked on the low-power testing li-cense front, filing its " Motion to Defer Commission Action and for Commission to Hear Views of the Parties before Deciding Certified Question Regarding Low Pcwer License for Shoreham."
Again, it argued that no offsite plan could be implemented be-cause of its own nonparticipation.
It argued the same point in its "Suffolk County Motion for Leave to File Contentions Regarding Onsite Emergency Preparedness" on June 27, and again in its " Answer and Opposition of Suffolk County to LILCO's Mo-tion for a Low Power License" of June 27.
It argued the same point in correspondence from the Suffolk County Executive to the Commissioners.
Finally, Suffolk County argues the same essential l
point -- that LILCO cannot heet the NRC's emergency planning regulations without Suffolk County's cooperation -- in many of its 177 pages of contentions, the most recent version of which is dated July 26, 1982.
The short of the matter is that Suffolk County has already had so many bites of the apple that there is no apple left.
The County's argument in each and every one of the above pleadings is simply that without Suffolk County's cooperation, and without present assurance of the State's help, LILCO cannot possibly meet the NRC emergency planning regulations.
The need to reargue this issue over and over again is a waste of re-sources.
It is costing time and money that could better be spent in preparing to litigate the facts.
At some point the filing of pleading after pleading ar-guing the same point becomes abusive.
LILCO believes that point was reached some time ago.
II.
The Commission has already decided the issue It is not the case, as the County asserts at pages 3 and 6 of its motion, that the issue it now raises is a new one that the Commission has never reached.
The County suggests that the Commission's Memorandum and Order of May 12, affirming the i
1 J
Licensing Board's decision of April 20, was based on the assumption that the State of,'New York (or some other govern-ment) would participate in the emergency plan.3/
There are several answers to this argument.
First, there is not the slightest indication in the Li-censing Board's decision or the Commission's affirmance that what the County says is true.
To the contrary, the Commission said "as we read the applicable regulatory provisions, the agency is obligated to consider a utility plan submitted in the absence of State and local government-approved plans."
CLI-83-13, slip op. 3 (emphasis added).
Indeed, in its second brief on this issue the County attempted to distinguish the Indian Point case by noting that "the State has determined that it 'will not be a party to any effort to impose an indepen-dently developed State plan upon Suffolk County.'"
Supplemen-tal Brief of Suffolk County 29 (Mar. 4, 1983).
The County at-tached the Governor's statement to that effect to its brief as Exhibit 5.
3/
It is not true, as Suffolk County alleges, that no govern-mental entity at all will participate in the offsite plan.
The Department of Energy will participate in the same capacity as it participates in offsite plans at other nuclear facilities.
The Coast Guard will also participate. -.
Second, it is quite too early to rule out New York State's participation in an offsite plan.
A decision on that score has not been made and will probably not be made until the Governor's Shoreham Fact Finding Panel completes its work some-time this fall.
It is worth noting that this Board has not eliminated the offsite plan submitted by LILCO that includes New York State personnel; it has only deferred consideration of that plan until such time, if it comes, that New York State agrees to help.4/
Third, it is quite apparent that the issue of whether the LILCO Transition Plan is adequate is a factual issue that requires a hearing.
The County relies to a large extent on Commissioner Gilinsky's view that there can clearly not be ade-quate emergency preparedness if neither the State nor the Coun-ty governments will participate.
Motion 4.
But the fact of the matter is that the Cermissioner's view is not clear.
He l
did state, as the County points out, that there clearly cannot be adequate emergency preparedness.
On the other hand, on June 29 he said that he does "not have a view as to whether the Li-censing Board's doubts about the possibility of adequate emer-gency preparedness are justified."
Separate Views of Commis-sioner Gilinsky, Long Island Lighting Co. (Shoreham Nuclear 4/
See Order Limiting Scope of Submissions (June 10, 1983). I l
i
Power Station, Unit 1), CLI-83-17, 17 NRC (1983).
In his separate views on the Commission's July 15 Order Commissioner Gilinsky said that the Commission was evading its responsibilities by evading the central issue (the issue now argued by the County) and as a result was delaying resolution of the case.
I Obviously an evidentiary record is necessary to decide whether there can be adequate emergency preparedness without County participation, and without State participation if the State declines to help.
This is unquestionably an issue of fact, and due process, if nothing else, requires that LILCO be given a hearing.
Indeed the County argues it as a question of fact in its motion, citing the evidence of Three Mile Island:
The County submits that one of the undisputed lessons of the TMI accident is that there can be no adequate prepared-ness without the full support and partic-ipation of the responsible governments.
Without reasonable assurance of adequate emergency preparedness, the NRC cannot issue an operating license to LILCO.
10 C.F.R. 5 50.47(a)(1).
Since LILCO's
" Transition Plan" has neither the support or participation of any government, that
" plan" should be rejected.
Motion 5.
There is, LILCO submits, no court and no administra-tive agency in this country that would deny a hearing to an ap-plicant with a $3.2 billion facility on the basis of the "un-disputed lessons of the TMI accident."
In fact, the " lessons l
l -
I of the TMI accident," especially the need to prevent the poor communications to the public-that characterized that accident, have been taken into account in designing LILCO's Transition Plan.
For that matter, Suffolk County, in its "Suffolk County Response to ASLB Request for Parties' Views on Emergency Plan-ning Matters" (Aug. 4, 1983), argues that "to test whether LILCO is in fact capable of implementing adequate protective actions in the event of a Shoreham emergency, the LILCO plan must be carefully analyzed and its bases fully understood" (page 8.).
The County proposes to take depositions of LILCO people for 32 days and follow-up depositions of people from the Red Cross, the Department of Energy, and bus companies (pages 15, 17).
Taking the County's two August 4 pleadings together, then, the County's position appears to be (1) that the essen-tial facts are undisputed and (2) that there are an astonishing number of complicated facts to explore.
If the Board wants to know what the facts are, the facts are not that the " undisputed lessons" of TMI show emergency planning on Long Island to be impossible.
The facts are that LILCO is training 1700 people, holding discussions with outside organizations such as the Red Cross and the Department of Ener-l gy, arranging for some 300 evacuation buses to be available,
! l
I and doing the countless other detailed tasks that need to be l
done to put in place a workable emergency plan.
An organiza-I tion of some 30 people at LILCO is engaged in nothing else, 1
full-time.
The County is entitled to try and prove, if it can, that these efforts will be inadequate.
What the County cannot do with any credibility is pretend that the adequacy of those efforts is a question of law rather than of fact.
III.
No certification to the Commission is necessary l
l For the reasons stated above, certification to the Com-l mission is not warranted.
The Commission has already decided the issue, and there is no need for it to decide it again.
Respectfully submitted, LONG ISLAND LIGHTING COMPANY N'N By mes N. Christman Hunton & Williams P.O. Box 1535 707 East Main Street Richmond, VA 23212 DATED:
August 8, 1983 LILCO, August 8, 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 LILCO's Answer to Suffolk County's Motion for Rejection of LILCO Transition Plan and for Certification to the Commission 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, Atomic Safety and Licensing Chairman
- Board Panel Atomic Safety and Licensing U.S. Nuclear Regulatory Board Commission U.S. Nuclear Regulatory Washington, D.C.
20555 Commission East-West Tower, Rm. 402A Bernard M. Bordenick, Esq.*
4350 East-West Hwy.
David A. Repka, Esq.
Bethesda, MD 20814 Flwin J. Reis, Esq.
U.S. Nuclear Regulatory Dr. Jerry R. Kline*
Commission Atomic Safety and Licensing 7735 Old Georgetown Road Board (to mailroom)
U.S. Nuclear Regulatory Bethesda, MD 20814 Commission East-West Tower, Rm. 427 Herbert H. Brown, Esq.*
4350 East-West Hwy.
Lawrence Coe Lanpher, Esq.
Bethesda, MD 20814 Christopher McMurray, Esq.
Kirkpatrick, Lockhart, Hill, Dr. M.
Stanley Livingston**
Christopher & Phillips 1005 Calle Largo 8th Floor, 1900 M Street, N.W.
Sante Fe, New Mexico 87501 Washington, D.C.
20036 Secretary of the Commission David J. Gilmartin, Esq.
U.S. Nuclear Regulatory Attn:
Patricia A. Dempsey, Esq.
Commission County Attorney Washington, D.C.
20555 Suffolk County Department of Law Atomic Safety and Licensing Veterans Memorial Highway Appeal Board Panel Hauppauge, New York 11787 U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Eleanor L. Frucci, Esq.*
Ralph Shapiro, Esq.**
Attorney Cammer and Shapiro, P.C.
Atomic Safety and Licensing.
9 East 40th Street Board Panel New York, New York 11901 U.S. Nuclear Regulatory Commission Stephen B. Latham, Esq.**
East-West Tower, North Tower Twomey, Latham & Shea 4350 East-West Highway 33 West Second Street Bethesda, MD 20814 P.O. Box 398 Riverhead, New York 11901 Mr. Marc W. Goldsmith Energy Research Group Stewart M. Glass, Esq.**
4001 Totten Pond Road Regional Counsel Waltham, Massachusetts 02154 Federal Emergency Management Agency James B. Dougherty, Esq.*
26 Federal Plaza, Room 1349 3045 Porter Street New York, New York 10278 Washington, D.C.
20008 Spence W.
- Perry, Esq.**
MHB Technical Associates Associate General Counsel 1723 Hamilton Avenue Federal Emergency Management Suite K Agency San Jose, California 95125 500 C Street, S.W.
Room 840 Howard L.
Blau Washington, D.C.
20472 217 Newbridge Road Hicksville, New York 11801 Jonathan D.
Feinberg, Esq.
New York State Mr. Jay Dunkleberger Department of Public Service New York State Energy Office Three Empire State Plaza Agency Building 2 Albany, New York 12223 Empire State Plaza Albany, New York 12223 Ms. Nora Bredes Executive Coordinator Shoreham Opponents' Coalition 195 East Main Street Smithtown, New York 11787 42 James N. Christman Hunton & Williams P.O. Box 1535 707 East Main Street Richmond, Virginia 23212 DATED:
August 8, 1983
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