ML20079P674

Proposal for Resolving Legal Authority Issues of Contention 1-10.Contentions Should Be Decided by ASLB Not State Court. Legal Authority Issues Should Be Addressed in Group II Findings.Certificate of Svc Encl

ML20079P674
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	01/26/1984
From:	Christman J HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:
References
ISSUANCES-OL-3, NUDOCS 8401310305
Download: ML20079P674 (9)

Text

e LILCO, Jagg&BME36, 1984 USNRC

'84 JA0 30 P2:20 UNITED STATES OF AMERICA <rrUur

• NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board En the Matter of )

)

LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3

) (Emergency Planning (Shoreham Nuclear Power Station, ) Proceeding)

Unit 1) )

LILCO PROPOSAL FOR RESOLVING THE

" LEGAL AUTHORITY" ISSUES (CONTENTIONS 1-19)

The Board has raised the question of how best to resolve Contentions 1-10, the " Legal Authority" contentions that allege that LILCO lacks legal authority to perform certain functionsl/ in a radiological emergency. It has been suggested that one approach might be to seek an opinion from a state court. This pleading is an outline of LILCO's views on how 1/ The functions are directing traffic (Contention 1);

blocking roadways and channeling traffic (Contention 2);

posting " trailblazer" signs (Contention 3); removing obstructions and towing stalled cars (Contention 4); sounding sirens and broadcasting EBS messages (Contention 5); making decisions and recommendations (Contention 6); making decisions and recommendations for the 50-mile EPZ (Contention 7); making decisions and recommendations about recovery and reentry (Contention 8); dispensing fuel to stranded vehicles (Contention 9); and providing security at the EOC, relocation centers, and EPZ perimeter (Contention 10).

8401310305 840126 PDR ADOCK 05000322 PDR C

4]D3..

2 best to resolve the legal authority issues. It is no: an attempt to brief the matter, but only to set forth in summary fashion LILCO's views, so that they can be considered by the Board and perhaps discussed by the parties.

LILCO proposes that the legal authority issues be addressed by the parties in their proposed findings on the Group II issues, and not before. In LILCO's view there is no need for the Board to resolve these issues earlier than the Group II issues, because their resolution will not affect the need to litigate the remaining factual issues.

Furthermore, LILCO submits that Contentions 1-19 should be decided in the first instance by this Board, not by a state court. These contentions cannot be resolved authoritatively by a state court in such a way as to vitiate LILCO's emergency j plan, because the ultimate issue is one of federal preemption.

I. The " Legal Authority" Issues Will Not Determine the Ultimate l Issue of Whether a License May Be Issued i

t Even if the issues of state law (Contentions 1-13) are i resolved against LILCO, the remaining contentions will still l

have to be resolved by this Board. The reason :s that a lack l of legal authority in LILCO would not mske amer?ency p'annin?

! or an emeroencv resnonso inoffseti'e.

J

, Every one of the first ten contentions, save the one about posting " trailblazer" signs (Contention 3), refers to actions that would be taken after a radiological emergency had occurred. In such a case, the Governor of New York has stated that both the State and County governments would commit their resources to protecting the public.2/ There would thus be no lack of necessary legal authority in time of real emergency.

No one seriously suggests that LILCO's pre-emergency planning is forbidden by law. Obviously it is not unlawful for LILCO to draft an emergency plan, to hold training and drills for its own employees, or to make agreements with various outside organizations. Rather, what the intervenors are alleging is that LILCO lacks the legal authority to make an emergency response, once an emergency has occurred. And as we have said, there would be no lack of legal authority in an actual emergency.

I l

t 2/ In a " Statement by Governor Mario M. Cuomo" dated December

20, 1983, the Governor said this

l Of course, if the plant were to be operated and a misadventure were to occur, both the State and the Countf would help to the extent possible; no one suggests otherwise. However, government's obligation to respond to a catastrophe

should not be used as an excuse for inviting the peril.

i I

l

-4 The single respect in which pre-emergency activities are addressed by Contentions 1-10 is the posting of

" trailblazer" signs to mark recommended evacuation routes, which has to be done in advance of an emergency. But even if the intervenors were to prevail on this issue (Contention 3) and establish that it is unlawful for LILCO to post such signs, the record already compiled in this proceeding shows that the result of dispensing with the signs would be merely an additional hour and a half or so added to the evacuation times.

These slightly longer evacuation times would not render the emergency plan inadequate,3/ particularly in light of the fact that this would be beyond LILCO's power to control and particularly since the objecting parties (the County and perhaps the State) could easily eliminate the problem by  ;

allowing the signs to be posted. The short of the matter is that an emergency response could clearly be mounted without trailblazer signs, although the signs are, to be sure, a desirable thing.

II. The Board Should Decide the Legal Authority Issues in the First Instance Nor can the " legal authority" contentions be resolved (except in LILCO's favor)1/ by relegating them to a state 3/ As we have pointed out, there is no tire li.mit for evacuation in the NRC regulations.

4/ A decision in LILCO's favor -- that is, 3 decision that LILCO is not prohibited by state law from imp'.enenting an

[ ' footnote contincei' l

t i

Y

court.5/ The reason is that if there were any respect in which a state or local law made a utility plan less effective in protecting the public, such a law would be invalid under the Supremacy Clause. Our reasoning, in rough outline, is as follows.

The NRC has already ruled that a " utility plan" may be used to meet NRC emergency planning requirements. Congress has asserted the same principle. If state or local laws are interpreted or applied in such a way as to make a utility plan unlawful or to render it less effective than otherwise, then insofar as they have that effect, those laws are preempted by federal law, particularly the Atomic Energy Act.

This issue of federal law, and of atomic energy law in particular, is squarely within this Board's competence to decide. And this preemption issue would allow removal of litigation over Contentions 1-19 from state court to federal court if a state lawsuit were brought. The normal, and preferable, way for issues such as this to be resolved is for this Board, which is versed in NRC law, to decide the issue (footnote continued) emergency response -- would of course end the matter. In that case the federal preemption issue would never arise.

5/ The Governor of New York has taken the oosition that this Board lacks jurisdiction to decide Contentio'ns.1-13. LILCO I disagrees, but we are not briefing the issue at this time, absent a motion or other action that would raise the issue.

, l first, followed by the well-nigh inevitable reviews by the Appeal Board, the Commissioners, and then the court of appeals.

i In short, deciding the issues of state law raised by Contentions 1-10 would not by itself resolve them (unlest the state law issues were resolved in LILCO's favor). This Board, and ultimately a federal court, will have to decide the preemption issue as to any state or local law that is applied or interpreted so as to render an emergency plan less effective.

Respectfully submitted, LONG ISLAND LIGHTI;IG COMPANY

) ,

ny h-y?] u k W*

James N. Christman Hunton & Williams P.O. Box 1535 797 East Main Street Richmond, VA 23212 DATED: January 26, 1984

+ LILCO, January 26, 1984 CERTIFICATE OF SERVICE -

In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)

Docket No. 50-322-OL-3 (Emergency Planning Proceeding)

I hereby certify that copies of LILCO'S PROPOSAL FOR RESOLVING THE " LEGAL AUTHORITY" ISSUES (CONTENTIONS 1-19) 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,* Secretary of the Commission Chairman U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Board Washington, D.C. 20555 U.S. Nuclear Regulatory Ccamission Atomic Safety and Licensing East-West Tower, Rm. 492A Appeal Board Panel 4359 East-West Hwy. U.S. Nuclear Regulatory Bethesda, MD 29814 Commission Washington, D.C. 20555 /

Dr. Jerry R. Kline*

Atomic Safety and Licensing Atomic Safety and Licensing Board Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission East-West Tower, Rm. 427 Washington, D.C. 20555 4359 East-West Hwy.

Bethesda, MD 29814 Bernard M. Bordenick, Esq.*

David A. Repka, Esq.

Mr. Frederick J. Shon* Edwin J. Reis, Esq.

Atomic Safety and Licensing U. S. Nuclear Regulatory Board Commission U.S. Nuclear Regulatory 7735 Old Georgetown Road Commission (to mailroom)

East-West Tower, Rm. 433 Bethesda, MD 20A14 4350 East-Wesc Hwy.

Bethesda, M3 20914 Ben Wiles, Esq.

Asst. Counsel to the Governor Gerald C. Crotty, Esq. Executive Chamber Counsel to the Governor State Capital Executive Chamber Albany, New York 12224 State Capitol Alcany, New York 12224

Eleanor L. Frucci, Esq.* Stewart M. Glass, Esq.**

Attorney Regional Counsel Atomic Safety and Licensing Federal Emergency Management Board Panel Agency U. S. Nuclear Regulatory 26 Federal Plaza, Room 1349 Commission New York, New York 19278 East-West Tower, North Tower 4359 East-West Highway Stephen B. Latham, Esq.*

Bethesda, MD 29814 Twomey, Latham & Shea 33 West Second Street David J. Gilmartin, Esq. P.O. Box 398 Attn: Patricia A. Dempsey, Esq. Riverhead, New York 11991 County Attorney Suffolk County Department Ralph Shapiro, Esq.**

of Law Cammer & Shapiro, P.C.

Veterans Memorial Highway 9 East 40th Street Hauppauge, New York 11787 New York, New York 10016 Herbert H. Brown, Esq.* James Dougherty, Esq.*

Lawrence Coe Lanpher, Esq. 3045 Porter Street Christopher McMurray, Esq. Washington, D.C. 20008 Kirkpatrick, Lockhart, Hill Christopher & Phillips Howard L. Blau 8th Floor 217 Newbridge Road 1999 M Street, N.W. Hicksville, New York 11801 Washington, D.C. 20036 Jonathan D. Feinberg, Esq.

Mr. Marc W. Goldsmith New York State Energy Research Group Department of Public Service 4001 Totten Pond Road Three Rockefeller Plaza Waltham, Massachusetts 02154 Albany, New York 12223 MHB Technical Associates Spence W. Perry, Esq.**

1723 Hamilton Avenue Associate General Counsel Suite K Federal Emergency Management San Jose, California 95125 Agency 500 C Street, S.W.

Mr. Jay Ounkleberger Room 840 New York State Energy Office Washington, D.C. 20472 Agency Building 2 Empire State Plaza Albany, New York 12221 l

l

Fabian Palomino, Esq.* Ms. Norma Bredes Special Counsel to the Executive Coordinator Governor Shoreham opponents' Coalition Executive Chamber, Room 299 195 East Main Street State Capitol Smithtown, New York 11787 Albany, New York 12224

/

} f- / -. . -,

' .. 77! l l ,1.cffs7 J' M '

James N. Christman Hunton & Williams 797 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: January 26, 1984

-. . . . _ . - .