ML20094D488
| ML20094D488 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 08/06/1984 |
| From: | Christman W HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20094D491 | List: |
| References | |
| OL-3, NUDOCS 8408080417 | |
| Download: ML20094D488 (86) | |
Text
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LILCO, August 6, 1984 c- . ~ . . c . . . u. ; u _:m u, t
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, UNITED STATES OF AMERICA 3 NUCLEAR REGULATORY COMMISSION O O
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Before the Atomic Safety and Licensing Board
'In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3
) (Emergency Planning r . (Shoreham Nuclear Power Station, ) Proceeding)
< Unit'1) )
v LILCO'S MOTION FOR
SUMMARY
DISPOSITION OF CONTENTIONS 1-10 (THE " LEGAL AUTHORITY" ISSUES)
This motion requests the Licensing Board to resolve Contentions 1'through 10 in this proceeding in LILCO's favor.
The' contentions allege that certain activities undar the LILCO-s sponsored offsite emergency plan are prohibited by state and
' local laws. This motion demonstrates that, even if state law prohibits these activities, summary disposition is nevertheless i:: ' called for, for reasons that are either purely matters of fed-eral law.or already established on the record.
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CONTENTS I. INTRODUCTION......................................... 1 A. The Purpose of this Motion Is to Resolve the " Legal Authority" Contentions................ 1 B. Summary Disposition Is Appropriate............... 3 II .-
SUMMARY
OF. ARGUMENT.................................. 4 III.. ARGUMENT............................................. 6 A. 'The application of state laws to deny an operating license or to make an emergency plan less effective is preempted by federal law...................................... 6 qlE "
- 1. The state laws invade a field occupied excusively by federal regulation............. 8
- a. The state laws cited in Conten-tions 1-10 attempt to regulate operation of a nuclear power plant................................... 11
- b. Congress has consistently author-ized " utility plans".................... 13
- c. New York State and Suffolk County '
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are attempting to regulate radio-logical health and safety............... 28
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- d. The " traditional" involvement of n
states and localities in nonradiological emergency prepared-
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ness is-irrelevant here................. 34
.ar The state laws "actually conflict" with h
1 2.
federal law................................. 37 1
, a. For Contentions 5-8, it is impossible to comply with both state and federal law................... 37 p
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,, s b. For Contentions 1-10, the state laws "1 = " stand-as,an. obstacle.to the accomplishment of the full purposes and objectives of Congress".............. 39
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.+r (1) The purpose of having effective emergency plans..................... 39
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4 (2) The purpose of-having uniform
. federal standards of emergency planning............................ 40
~ (3) The purpose of encouraging
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kf[ ' . nuclear power....................... 41
-B.- Even if preemption does not resolve
. Contentions 1-10, the adequate assur-d"; ' .ance' required-by 10 C.F.R. $ 50.-47
- . , . exists for. Contentions 1-2 and 4-10 o+.
.because-the: State and the County would
-respond-to an actual emergency.................. 42 m .
- 1. Assurance under 5 50. 47 ( a) (1) . . . . . . . . . . . . . . . 43 syf i
2 .1 ~ Assurance under l'50.47(c)(1)............... 47 G C.
,- The plan would be adequate even without s 1 the1 actions challenged in Contentions
- 47 -
1, 2, 3, 4, . 9, and 10........................... 51
- .n
. IV. CONTENTION-BY-CONTENTION ANALYSIS OF THE BASES y- -
FORl GRANTING"
SUMMARY
. DISPOSITION.................... 54 x C
_ A. . Contentions-11and'2: - Guiding Traffic' c' _-Along Predetermined Routes...................... 54
. . B. Contention 3: Traffic Guides................... 58
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, C. Contention 4: Towing........................... 60
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0?*( ' D ~. ' Contentions 5 and 6: Activating Sirens, bh -
Making Decisions About Protective Action Id?
S Recommendations, and Broadcasting Recom-
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_ .mendations to the Public........................ 61 MD _ _
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- 1. . Activating Sirens........................... 62 ss
- 2. Notifying the Public Through the '
EBS......................................... 64
- 3. Making Decisions............. .............. 66 ;
E. Contentions 7 and 8: Making Recommendations for the Ingestion E.xposure Pathway and for
' Recovery and Reentry............................ 68 F. Contention 9: Dispensing' Fuel.................. 72 G. : Contention 10: Security........................ 73 V. . REQUEST TO REPLY.................................... 77
'5'
- VI.: CONCLUSION.......................................... 78 Appendix A: . Text of' Contentions 1-10 Appendix'B: Statement of Material Facts as
. to Which Thera is No Dispute.
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I. INTRODUCTION
-A. Thel Purpose of this-Motion Is to Resolve the " Legal Authority" Contentions
.With this motion LILCO asks the Board to decide Conten-tions.1'-10 (the " legal authority" issues) summarily in LILCO's favor.1/ The bases for the relief requested are federal pre-emption~and-the existing evidentiary record in this proceeding.
Contentions 1-10 assert that various actions called for i
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lin:the LILCO offsite1 emergency plan-(the LILCO Transition Plan)
'are" prohibited by New York State statutes (or, in the case of F' ..
- Contention =9, by two
- . local ordinances). 'The actions, in summa-
" ;ry, are.these:
~(1) guiding traffic, (2) blocking roadways,. erecting barriers in
, -roadways, and channeling traffic, (3) posting traffic signs on roadways,
. (4) removing obstructions ;from public road-7 ,
ways, including towing private vehicles, (5) activating sirens and directing the broadcasting of emergency broadcast sys-tem messages, c
t-
- 1/ In LILCO's view, the' federal preemption doctrine, not to
- mention New York State law,' entitles the Company to more relief M. 9
. thanithe mere resolution of the ten contentions. The scope of
- the. relief to which LILCO is entitled need not be addressed in this proceeding. .The issue is presented generally in pending
-court proceedings.
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.(6). making-decisions and recommendations to the public concerning protective actions, (7)' making decisions and recommendations to
, the public concerning protective actions for the ingestion exposure pathway,
-(8) making decisions _and recommendations to
'the'public concerning recovery and reen- :
.try,
'(9) dispensing fuel from tank trucks to auto-
' ' mobiles ~along roadsides, and
'(10). performing access control at.the EOC, the relocation centers, and the EPZ perime-ter.
'This motion assumes, for the sake of argument, that the y ;Intervenors-(Suffolk County and the State of New York) are cor-
' rect that L state law prohibits _LILCO from taking the actions specified in Contentions 1-10; there will be no analysis of
_ state-law here.2/ 'Rather, LILCO asserts that three independent
' federal bases justify summary disposition in-LILCO's favor, q; eventif theJIntervenors are right about' state law. These bases ji are:
9'
.1. Preemptioni Preemption by the Atomic En-I 3~ '
ergy Act;
- 2. Realism: The single fact, already estab-clished on the record of this proceeding, that the State and County would respond in~a real emergency;~and
- t. . .
- j2/J s :The--state law. issues are being. presented to the Supreme i _ -Court for;Suffolk County, New York, in the actions in Cuomo v.
i ?LILCO,.. County of Suffolk v. LILCO,.and. Town of Southampton v.
g -LILCO.
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- 3. Immateriality: The fact, already devel-oped on the record of this proceeding, that the actions.specified in Contentions 1-4, 9,.and 10 are not required to meet
_NRCLregulations.
~ Either.of the first two of these bases, alone, is sufficient to J. resolve'alliof Contentions 1-10; the third by itself resolves Conton'tions-1, 2, 3, 4, 9, and 10.
^
B. ' Summary Disposition Is Appropriate Summary disposition is governed by~10 C.F.R. $ 2.749, 9'
INhe law of shich was set ~out in the Board's rulings on LILCO's
- a. ,'ea'rlier motions for summary ~' disposition.
See Memorandum and
- Order Ruling en LILCO's Motion for Summary Disposition of Con-x Lten'tions'16.E, J, K, L and M (Public Information Brochure) 3-4
-(June".28, 1984);- Order-Ruling on-LILCO's Motions for Summary 1 Disposition of Contentions.24.B, 33, 45,'46 and 49 at 2-3
- n ., . . .
f(April 20, 1984). 'In brief,.the moving party has the burden of
< ' > ~ " showing there is no genuine issue of material fact to be heard.
nu <In the case of Contentions 1-10, the parties have e > -agreedfthat no further evidentiary hearing is needed.
Tr. 13,823 (LILCO), Tr. 13,831 (Suffolk County), Tr. 13,832-
- (New. York),513,834'(NRC Staff). Because the few facts needed for this. motion have already been established on the record, tthere is<no'need for. affidavits to satisfy the summary disposi-
- ition regulation, 10 C.F.R. 5 2.749.3/
3/ On July 27, 1984, counsel for LILCO informed counsel for
.Suffolk County, in discussions concerning scheduling in the New (footnote continued)
1 i.
foi 4, a-II.
SUMMARY
OF ARGUMENT LILCO's arguments are as'follows:
First: The'New York State and local laws cited in Con-NY itentions-1-10'are without legal effect insofar as they may be
- construed by-the New. York courts either (1) to make LILCO's 1 offsiteLemergency plan for the Shoreham Nuclear Station less effective--than it.would otherwise be or (2) to prohibit the op-eration of the station ~ altogether. The Atomic Energy Act of q1954_ preempts such' state and local laws, in accordance with the drecent cases Pacific Gas & Electric Co. v. State Energy
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Resources-Conservative & Development Comm'n and Silkwood v.
L_K err-McGee Corp. The laws are preempted both because they in-
,vada the field of radiological health and safety regulation, a ffield exclusively ~ occupied by the federal government, and be-
.cause they:actually. conflict 1with federal regulation.
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](footnote' continued).
. i' E[ ~ + !. York-courts, that'LILCO-intende'd to file this motion. Counsel
,. 3 ;for'.Suffolk County;then communicated with counsel for New York.
.While this' summary disposition motion was in preparation,
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LILCO; received.the Board's-Memorandum and Order Establishing ,
J u,~ , ; Format {and-Schedule of Proposed Findings of Fact and Conclu-1 :sionstofiLaw(of July 27, 1984. Page 3 of the' Memorandum and u z?- forder'provideasthat-the Board will establish a' separate
, lbriefingEschedule for Contentions 1-10. LILCO is filing this
" # C? motion:today;to.get its views before the Board promptly and, if ypossible,7 to lead the.way to an earlier resolution of the is-
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l q :Second: Even if the state laws were not preempted, all !
of Contentions 1-10 except Contention 3 (the only one that n ' challenges LILCO actions in advance of an actual emergency) shbuld be resolved in LILCO's favor because the Go.arnor of New York has. announced that both the State and County would respond in a real emergency; This response would cure any lack of legal authority.
. Third Even if neither of the above two grounds for
.3 , - summary disposition existed, Contentions 1-4 and 9-10 should be y
y resolved in T.ILCO's favor, because the activities challenged as
. 4 lillegal in.those contentions are not essential for meeting NRC n '
regulations. For the most part these activities improve evacu-
^
ation time if evacuation is called for, but their absence by no
- means makes evacuation impossible; in a few cases the activi-ties alleged to be' illegal are simply not called for in the pf. ; LILCO_ Plan.
For these reasons,-LILCO submits it is entitled to sum-mary disposition of Contentions.1 through 10.
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su -
- III. ARGUMENT A. The application of state laws to deny
- an. operating license or to make an
- emergency plan less effective is pre-empted by federal law.
The first basis for summary disposition, which applies to all 10 contentions, is_ federal preemption.4/ In particular, the federalLAtomic Energy Act preempts state law insofar as it 4
attempts either to prohibit the operation of a nuclear plant on
,, (grounds of_ radiological health and safety or to interfere with
.emekgency-planning so as to make people less safe. There is a U
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s considerable line of cases _cn1 preemption under the Atomic Ener-gy Act,!beginning with Nort'ern h States Power Co. v. Minnesota, 447+F.2d 11431(8th'Cir. 1971), aff'd mem., 405 U.S. 1035 (1972).- The two most recent cases are Pacific Gas and Electric
.Co. v. State Energy Resources Conservation ~& Development acomm'n, 103 S. Ct. 1713 (1983) (hereinafter Pacific Gas &
F .
LElectric)!and Silkwood v. Kerr-McGee Corp., 104 S. Ct. 615 4
(1984) (hereinafter Silkwood).
The principles in these cases, as will be shown below,
-mandate ~'the conclusion that to the extent the state and local
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I -laws cit 6d in Contentions 1-10 interfere with emergency U _
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4/. The: preemption doctrine is founded on the Supremacy Clause,;U.S. .Const. Art. VI, 62.
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. planning or-emergency response, or with the operation of a nu-clear plant,'they are preempted. This does not mean the New
. York statutes relating to traffic control (for example) are null and void in their entirety, only that their application to
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ra'diological emergency planning, in a fashion urged by interve-nors, is invalid. See, e.g., United States v. City of New York, 463 F. Supp. 604, 607-14-(S.D.N.Y. 1978) (city's " siting" regu-lation preempted to the extent that its application regulated
, radiological health and safety); New Jersey Dep't of Environmental Protection v. Jersey Central Power & Light Co.,
L 69 N.J. 102, 351 A.2d 337, 342-344 (1976) (application of state statute prohibiting the introduction of a hazardous substance of any kind into fresh or tidal waters preempted to the extent that it-interferes with federal regulation of radiological health and safety).
e In truth, the federal preemption question raised by
. Contentions 1-10 was decided the day the Commission ruled, in
. -response.toJSuffolk County's motion to terminate this proceed-
- ing,-.that a " utility"_ emergency plan is lawful. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
CLI-83-13, 17 NRC 741.(1983). As will be shown below, Congress has-repeatedly approved language authorizing " utility plans,"
and the NRC regulations permit them as well. If New York State
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.were today to pass a law saying "no ' utility plan' for a 1 -.- w. - --- . -m. . - . , _ -- + , , , . , - -op. ,.,m-,y-,,..-_ ,,m-,.e- - -e . --,
- o radiological emergency shall be lawful in New York State," can there be any doubt that it would be preempted? Clearly not.
.But that is precisely what the Incervenors are attempting to do through their interpretation of existing laws.
State (or local) law can be preempted by federal law in either;of two general ways:
A. If Congress evidences an intent to occupy a given field, any state law falling within that field is preempted.
B. If'. Congress has not entirely displaced
. state regulation over the matter in ques-
' tion,-state law is still preempted to the extent it "actually conflicts" with fed-eral--law,--that is:
1.
l Nhen-it is impossible to comply with both state and federal law, or
- 2. When the state law " stands as an ob-stacle to the accomplishment of the full purposes.and objectives of Con-
.gress."
~Silkwo'od,=104 15.Ct. at 621 (1984); Pacific Gas &-Electric, 103 V .
S?Ct. at 1722. The state and-local _ laws cited in Contentions
' ~
- 1-10-are preempted on both these grounds.
,1
_ ._ 1 . The state laws' invade a field occupied
_ ; exclusively'by federal regulation i
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- State 1aws are preempted, first of all, if they intrude
- upon a; field-that Congress has shown an intent to occupy. Reg-g Tulation of; radiological-health and safety is clearly one such
! field':
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-State. safety regulation is-not preempted )
'only.when it conflicts with federal law. ;
Rather, the federal government has l occupied the. entire field of nuclear i safety concerns, except the limited pow-ers expressly ceded to the states. When the federal government completely occupies a given field or an identifiable portion of.it, as it has done here, the
. test of. preemption is whether "the matter on which the state asserts the right to act is in any way regulated by the feder-al. government." Rice v. Santa-Fe Elevator Corp., supra, at 236. A state moratorium on nuclear construction grounded-in safety concerns falls
. squarely:within the prohibited. field.
. Moreover, a' state. judgment that nuclear
. power is not safe enough to be further developed would conflict directly with the countervailing judgment of the NRC . . .-that nuclear construction may proceed notwithstanding extant uncer-tainties as to waste disposal. A state prohibition on nuclear construction for safety reasons would also be in the teeth of the Atomic Energy Act's objective to insure.that nuclear technology be safe enough for widespread development and use
-- and'would be preempted for that rea-son.
Pacific' Gas 1& Electric, 103 S. Ct. at 1726-27 (footnote omit-
-ted; citations omitted).
Prior to the. Pacific Gas & Electric decision in 1983, the controlling case regarding the relationship between federal and state regulation of the nuclear energy field under the Atomic Energy Act-was Northern States Power Co. v. Minnesota, 447 F'.2d 1143 (8th Cir. 1971), aff'd mem., 405 U.S. 1035 (1972). The Court in Northern States held that the Atomic
. , . . . - . - - - . -_. -- .. ~ - ..- . .
.lo_
Energy Act unmistakably preempts State regulation of the ra-diological safety aspects of nuclear power plants. Courts have
. consistently adhered to the principle of federal preemption an-nounced~in-Northern States, and Pacific Gas & Electric and Silkwood did not depart from it. See, e.g., County of Suffolk fv. Long Island Lighting Co., 554 F. Supp. 399 (E.D.N.Y. 1983),
aff'd, 728 F.2d.52 (2d Cir. 1984) (plaintiff's state law causes of action relating to the hazards and safety of the construc-
. tion and operation of the Shoreham reactor preempted by the 2 Atomic Energy Act); United States v. City of New York, 463 F.
4 Supp. 604 (S.D.N.Y. 1978) (city's " siting" regulation preempted
.under-the Atomic Energy Act to the extent that its application regulated radiological health and safety); City of Cleveland v.
.Public Utilities Comm'n, 64 Ohio St. 2d 209, 414 N.E.2d 718 (1980) (state regulation of the radiological hazards and safety
- relating-to nuclear plants preempted except for those hazards relating to radiological emissions and other narrowly defined exceptions enumerated in Section 2021(b)); New Jersey Dept. of 1 Environmental Protection v. Jersey Central Power & Light Co.,
69 N.J. 102,-351 A.2d 337 (1976) (application of state statute
.prohib~iting the introduction of hazardous substance of any kind
-into fresh or-tidal waters preempted under the Atomic Energy Act to the extent it. interferes with federal regulation of ra-diological health'and safety.).
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- a. The state laws cited in Contentions 1-10 attempt to regulate the oper-ation of a nuclear power plant Emergency planning, of course, is inherently and exclu-sively a matter of radiological health and safety. The regula-
-tions and guidelines of the NRC and FEMA.are designed to do one Lthing: provide reasonable assurance that the public health and safety willybe protected even in.the event of a radiological emergency.
'In the case of Shoreham, Suffolk County and New York
' State are attempting, through the interpretation and applica-
~
ition of New York laws, to regulate the radiological health and safety) aspects of the operation of the Shoreham nuclear plant.5/ -Some of.these laws allegedly make a utility emergency plan impossible. For example, Contentions 7 and 8 claim that
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. making protective action " decisions" and " recommendations" under a utility plan is prohibited. Other of the laws simply make the plan less effective, and thus make the public less safe. For example, the State wishes to prohibit LILCO from 5/
s ./" Regulation" includes " prohibition." Indeed, virtually
.M all forms of regulation involve some sort of prohibition of private activity. The Supreme Court in Pacific Gas & Electric considered California's effort to prevent the construction of new. nuclear plants to be " regulation," and so the Intervenors cannot credibly argue _that its efforts to prevent Shoreham's operation do not amount to attempted regulation.
4
'*- . guiding' traffic, a function that analyses show would enable the
'public to evacuate about an hour and a half faster than other-wise. -Tr. 2,663 (Lieberman).
As the passage from Pacific Gas & Electric set out above says, the-federal government has occupied the entire field'of nuclear safety concerns, except the limited powers
~" expressly ceded" to the states. And Congress has by no means
" expressly ceded" to the' states the power to regulate emergency
- plans for nuclear power plants.g/ To the contrary, Congress has made it clearE(1) that federal standards are to govern ra-diological. emergency planning, (2) that " utility plans" may
- compensate for deficiencies in state or local government s/. A footnote in Pacific Gas & Electric listed these " limited i
powers" expressly. ceded to the states:
In addition to-the opportunity to 0 enter.into-agreements with the NRC under
- $ 274(c), Congress has specifically autho-rized the states to regulate _ radioactive
' air pollutants from nuclear plants, Clean Air Act Amendments of 1977, S 122, 42 F U.S.C. 6 7422 (Supp. III 1979), and to im-pose certain siting and land use require-ments for_ nuclear plants, NRC Authorization Act;for Fiscal Year 1980, Pub. L.96-295, 94 Stat. 780 (1980).
103 S. Ct..atL1726 n.25. Significantly, the court did not in-clude emergency planning as having been ceded to the states, S -even though it was addressed in the statute immediately follow-Ling 3 the'" siting and land _use requirements" mentioned by the
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. planning, and.(3) that nuclear plants are not to be shut down, L
even if there is no state or local government participation in emergency planning, so long as the public health and safety are adequately protected. The' legislative history of several fed-eral statutes makes this clear.
- b. Congress has consistently i: authorized " utility plans" Congress has expressly authorized utility plans without
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state or local government participation in order to cvoid pe-
.nalizing utilities where governments refuse to perform emergen-u
-cy planning. Suffolk County now concedes as much.7/ After the 7/ In briefs before the United States District Court for the Easterni District of New York, Suffolk County has stated:
- [T]he regulatory scheme (footnote omitted]
makes plain . . . that there are three in-dependent routes-the utility may take to satisfy NRC requirements:
~ ( i ) -- it may submit a State plan to the Fed-eral Emergency Management Agency
(" FEMA")'for a determination of ade-quacy, (ii) it may submit a local government plan to FEMA for a determination of adequa-cy, or (iii) it may submit-its own plan to the NRC for a determination of adequacy.
The State and the County have both (footnote continued)
i
-accident at Three Mile Island evidenced the poor state of s
l g (footnote continued) mado' considered decisions not to adopt an emergency plan. As (LILCO's] complaint makes clear (1 46-48), LILCO is currently pursuing route (iii),.in order to fulfill
.its statutory duties. LILCO has submitted j' a. plan to the NRC, and that agency is hold-ing; proceedings on it.
Memorandum of Defendants in Support of Motion to Dismiss, LILCO
_ v. County of Suffolk.(E.D.N.Y. No. 84-2698), July 10, 1984, pp.
.10-11. Indeed, Suffolk County submitted an Appendix purporting
.to. summarize relevant legislative history in which it stated:
~
The Hart approach was criticized on the ground that a state opposed to nuclear Eplants could pre /ent the issuance of an op-
.erating license by refusing to develop such a site-specific plan. Id. at 16-17. See also Stenographic Transcript, April 22, 1980 at 29-32. In Lesponse to this con-cern, conferees agreed to add a provision
~
'that-allowed use of,NRC funds to issue a license if there existed a site-specific state-or local emergency plan that complied with.NRC guidelines or, in the absence of
.such:a plan, if-there existed "a State, local, or. utility plan which provides rea-7 'sonable assurance that public health and
" ' ^
faafety is not endangered by operation of the facility concerned." This provision,
- embodied in P.L.96-295, sec. 109-(1980),
was passed by Congress-in July, 1980. In explaining the provision, the Joint Explan-
- atory Statement of the Committee on Confer-
.ence stated:
The conferees sought to
. avoid penalizing an applicant for y, an operating license if a State or locality does not submit an y . emergency response plan to the NRC for review or if the sub-
- mitted-plan does not satisfy all
-the guidelines or rules, the com-(footnote continued)
_v
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offsite emergency; planning, Congress addressed the problem in
^
connection with'authcrization acts to fund NRC activities. One f*.
(footnote continued).
promise permits NRC to issue an operating license if it deter-mines'that a State,-local, or utility plan, such as the emer-gency preparedness plan submitted by the applicant, provides rea-sonable assurance that the public
, 'N health and safety is not endan-
- gered by operation-of the facili-e- .ty.
Joint Explanatory Statement of the Commit-tee on-Conference, House Conference Report
-No. 96-1070 at 27-28,-reprinted in 1980 U.S. Code Cong'. & Ad. News at 2270-2271.
JAppendix toLDefendant's Memorandum in Response to Long Island
,; Lighting' Company's Memorandum in Opposition to the Motion to
'D.4smiss, Citizens for an Orderly Energy Policy, Inc. v.
JC f halan, (E.D.N.Y. No. 83-4966), May 14, 1984, pp. 14-15.
s ;
JFinally, in urging the Court that its actions and its Res-olutions.regarding emergency planning are not preempted by the Atomic EnergyJAct, Suffolk County stated:
Defendants'have argued that LILCO's emer-gency plan does not satisfy the NRC stan-dards. But Defendants have not prevented LILCO's planning efforts, and LILCO has, in fact, developed and submitted an emergency plan to the NRC.
Defendants'LMemorandum in Response to.Long Island Lighting Com-
.pany's Memorandum in Opposition to the Motion to Dismiss, Citizens for an Orderly Energy Policy, Inc. v. Cohalan (E.D.N.Y. No. 83-4966,- May 14, 1984), p. 9 n.8.
These assertions, of course, are startling in light of the County's' contentions before this Board that state law forbids
-LILCO
- to perform emergency planning functions without State or County participation.
1 .. - :
fof~the~ things' Congress did was to require uniform federal stan-Under 5 109(b)(1)(A) of the 1980
~ dards of. emergency planning.
NRC Authorization Act, Pub. L. No.96-295, 9 109(b)(1)(A), 96th Cong. '2d.~ JSess. , 94 Stat. 780, 784 (June 30, 1980), the NRC was required to; establish'by rule-" standards for State radiological emergency response plans . . . [ developed in consultation with
' FEMA <and other appropriite agencies] . . . which provide for
~
the response to a ra'diological emergency involving any n :utilizationifacility . . . ." .Such standards have in fact been kadoptedlin10-C.F.R. 9 50.47 and NUREG-0654.
_f~ , Congress also addressed what to do about states and lo-3 calitiesithat1might fail to do adequate radiological emergency
= planning. -TheLSenate considered a bill that would have (1) re-
- quired the' shutdown of' operating ~ nuclear plants, within six
. months'of the enactment of'the bill, in states that had
- a. ~
, -deficiencies-in their emergency-plans and (2) prohibited new
~
operating!1icenses'in states whose plans did not adequately fpr'otectithe public health land safety. S.562, 5 202(a).& (b),
, H t- :124 Cong.' Rec. S9464 (daily ed. July 16,'1979).
Thus, under n ' the bill considered by the1 Senate, state _ governments would have
["' w Ibeen'giVen_an effective veto'over the licensing of new plants
$. . :as wellias-the opportunity to shut down existing plants.
- = Senator Johnsten expressly recognized this potential 2 1 ; problem.1.He_ pointed out that a state governor might-try to E 'E_
1
m e.
E '
m prevent the operation of nuclear plants in his state by failing
~
to make a good-faith effort to submit an emergency plan. 124 L
i Cong. Rec. .S9471-72.(daily ed. July 16, 1979). Senator Johnston proposed an amendment to the Senate bill the purpose of'which was to eliminate the potential state veto. The amend-ment would have authorized the NRC to prepare an interim emer-
~
.gency plan for a state rather than shut down a nuclear plant when deficiencies in state plans were found. 124 Cong. Rec.
S94711(daily ed. July 16, 1979).
Senator Simpson, a cosponsor of the Senate bill, op-posed the Johnston amendment calling for NRC-drafted plans:
Within the amendment which is pres-
'ented on this subject, there is the pos-sibility,_ remote as it is, that any fac-tion opposed to nuclear power could use the mandatory" planning requirements spelled out in this bill to arbitrarily shut down the operation or construction of a nuclear powerplant.
i~ I' feel that we have effectively alle-viated that issue by what we have done and what we are suggesting -- extending the-period for NRC review of State plans, making concurrence with-the plan site 1 specific,_using existing and not new guidelines as the standard for initial concurrence, and waiving the need to re-examine the existing voluntary State plans which the NRC has concurred in pre-viously.
Id.-at 9473. Senator Hart, the other cosponsor, like Senator Simpson, apparently thought it unlikely that a governor would s
L. _
a attempt to prevent issuance of an operating license by using the federal emergency planning requirements. Senator Hart made the following comments while discussing the proposed amendment.
Mr. HART. . . .
- 1 The Senator from Louisiana seems to be concerned that some Governors will use this as a device to shut down plants in their States. If he has in mind the Sen-ator from California, the State of California has been more advanced in preparing its evacuation and emergency response plans than any other State, in terms of-getting.its plans prepared, having them in detail, and getting them approved.- If he has'a fear about that
-State, it is not well founded.
[The bill] does provide, I'believe,-
. implicitly and; explicitly,-pressure upon the States to'act, because of their need ifor electricity. generated by the reactor.
Citizens who believe that their Governor or' State leaderships are not moving on
~
this'have plenty of opportunity to ex-
. press their wishes and-feelings on the matter.
~
^
>- Mr.'JOHNSTON. That.is one of'the principal reasons, because it may be, in effect, killed by the Governor. Jerry Brown is'a perfect. example,-because he said as-late as last night that he op-poses nuclear energy ~in any form and.
wants.to do away with existing plants.
4
. e4-i-
TP 1 l s
=*~-
Mr. HART. Even though his State, as I have indicated, has a very workable and progressive emergency evacuation plan.
Id. at.-S9473, S9476, S9477.
The Johnston~ amendment was rejected by a vote of 40 to 37, id. at 9478, and the Senate passed the Hart-Simpson version of the bill. Id. at 9603 (daily ed. July 17, 1979). The bill, i as passed by the Senate, would have expressly permitted states to prevent the continued operation of existing nuclear plants, and the operation of new ones, by failing to perform emergency planning at all or by failing to perform it adequately. The
' bill was sent.to a Senate-House Conference Committee. That committee was responsible for reconciling the approach set
.forth in the' Hart-Simpson bill with the approach taken in the House of Representatives. Whereas the Senate bill left open the possibility that a state could effectively veto a nuclear power plant, the House bill contained no such. provision.
The reaction of the Conference Committee and of Con-gress as a whole to the Senate bill was dramatic and decisive.
- Congress flatly rejected the notion that a state or local gov-
-ernment could shut down existing plants or veto operation of
.new' plants by refusing to perform emergency planning. Instead, Congress authorized utilities to go forward with utility-sponsored plans if state and local governmental participation
^
~
was not forthcoming. The Conference Committee rejected the Senate language and approached the problem of the recalcitrant
- ata te ,- not~by having the federal government write plans for the state, but by permitting utilities to do their own offsite plans; the 1980 NRC Authorization Act provided that " utility" emergency plans could compensate for deficiencies in local and state government plans. Pub. L.96-295, 5 109, 96th Cong., 2d Sess., 94 Stat.-783-84 (June 30, 1980). The House Conference Report,. commenting on-the bill that was reported out of the Conference-Committee and then adopted by both houses of Con-gress, explained Congress' intent as.follows:
E _ .
The conferees. sought to avoid pe-
- 'nalizing an applicant for an operating license if a State or locality does not submit an emergency response plan to the NRC for review or if the submitted plan does not satisfy all the guidelines or rules.
!H.R.LRep. No.: 96-1070, 96th Cong., 2d Sess. 27 (1980),
!?
reprinted.in 1980 U.S. Code Cong. & Ad. News 2260.
Congress' intent could hardly be clearer. Congress
~
.made it plain that no state or local government could in any way " penalize" or hinder a utility's operation of a nuclear
~
plant by failing to participate in emergency-planning. It nec-
-essarily follows-that Congress forbade states to frustrcte A: -
. utility emergency planning by interposing state or local laws.
r
.~
o
'3 x <*
v- ..
M <
') v
- The " utility plan" provision was ~ reenacted into the NRC n; '
Appropriations ActDfor~1982-1983. Pub. L.97-415, 55, 97th
~
Cong.:, 2dLSess., 96 Stat 2069:(Jan. 4, 1983). Representative s
, ;Lujan put the'following remarksiinto-the-Con'gressional Record
' while. thel 1982-1983 (bill: was being considered:
<Fr'ankly,:these provisions -- allowing a,utilityLto. file an onsite plan for a
-temporary operating < license, ~ and allowing
, -the NRC tosdetermine th~at an adequate
~ offs'ite' plan of:a utility exists in the t' absence:of an FEMA-approved State or
- local plan for a-final, full power-y;, , " license -- were included to insure that
~r ~
' Federal preemption in the area of nuclear-power would not be frustrated in the emergency planning area by foot dragging
- on the part of a reluctant State or locality. The wisdom of including such Federal provisions ~is underscored by the
,, situation-which we understand exists in 4
, .one district where a county has sued to
- n,' Ltry_to' enjoin'its State from approving an The clear language of _
~
.' emergency. plan'.
'the statute and our intent throughout the~
legislative: process was to insure that a
' plant.could operate 11f there existed some 4 *
' plan:-- State,Llocal or utility
~
- sponsored'-- providing reasonable assur-ance of the public health and safety.
m
-128 Cong.. Rec'. E5060-61 (daily ed.-Dec. 10,. 1982) (emphasis
' ~
Jadded)'. The'" situation";he referred-to was that of Shoreham;
- Suffolk County had recently sued to enjoin the State.of New 3
LYork'from reviewing an emergency plan. submitted by LILCo.
s
' Cohalan v.!New York State Disaster Preparedness Commission, No.
15145-82 _(N.Y. Sup. Ct.,. petition filed Dec. 6, 1982).
~
L.
4 - . - - , , , - . _' , , - - - , . , , - , - -~~_---.-,._w.,_- ..-.-,4-w,-,-m. ,,,.-.._--,,,%, ,,,,,.,,,.,w. ,,,-- 9
. s
~22-On July 12, 1983, the President signed into law H.R.
3133, the HUD and the Independent Agencies Appropriations Bill, which'provides funding to-FEMA. It became Public Law 98-45.
The House Conference Report included the following language:
The committee expects the Federal
-Emergency Management Agency to review, evaluate, and render determinations on the adequacy of offsite radiological emergency preparedness plans for commer-cial nuclear facilities required to be licensed under section 103 or 104b of the Atomic Energy Act of 1954, as amended.
This' evaluation should be conducted re-gardless of whether the plans have been prepared or submitted, or both, by a gov-ernmental entity or by the applicant or licensee for such facility. The fact
-that a governmental entity cannot or will not perform a particular role or roles in the preparation, submission,ior imple--
mentation of offsite emergency prepared-ness plans should not, by itself, consti-tute a sufficient basis for a determination by FEMA that the plans, or portions thereof, are inadequate --
providing a suitable alternative means of implementing the plans is available.
~H.R.'No.98-223; 98th.Cong., 1st Sess. 30-31 (1983).8f A " utility plan" provision, similar to the ones in the 1980-and 1982-83 NRC authorization acts, is again before Con-Lgress-inv% 108 of S.2846, the proposed NRC Authorization Act for fiscal 1984 and 1985, which was reported to the full Senate 2
jbf The Senate had no similar provision-and did not challenge the House Report language, so the House's direction stands.
N
. .Q - -- , ..- --
- r
- , ; -e 4 -
1;c l
. on August 1,.1984. With this bill the Senate Committee on En- l L
.vironment and Public Works has again confirmed Congress' autho-rization of utility plans and its intent to preclude interfer-
.enceiwith* plant operation by state or local governments. The Committee's report cn1 the bill reiterates that the utility plan provision is: intended to reconfirm the authority of the NRC and i: FEMA to evaluate an emergency preparedness plan submitted by an
!. applicant or licensee. S. Rep.98-546, 98th Cong., 2d Sess. 14
.(June 29, 1984).
It will be' recalled that Senator Simpson cosponsored the 1979' Senate Bill that would have permitted states to veto plant operation by refusing to plan. At that time, Senator
.Simpson considered the possibility of such conduct by a state government." remote." '124 Cong. Rec. S9473 (daily ed. July 16, 1979). Apparently recognizing intervening events, Senator
.Simpson expressed his views, consistent with those in the Com-mittee Report on S.2846 itself, in support of the recent 1984-85 authorization bill's. provision for utility plans. In recounting the legislative history of the utility plan provi-sion from.1980 through 1984, Senator Simpson noted that-Con-gress had repeatedly reenacted the provision in order to avoid penalizing nuclear plant operation if a state or local govern-ment failed to perform adequate emergency planning. Succinctly summarizing Congress' intent, Senator Simpson stated:
11..
. 4 --
With the adoption.of section 108, Ethis Committee'has now made it clear in three successive NRC authorization bills X , ,.that it:is not our-intention to allow a
. state or locality'to prevent a completed
= facility from operating by refusing to J prepare an emergency preparedness plan.
It'necessarily follows:that the Committee did not intend to allow such governmental entities to accomplish the same result by refusing to participate in the exercise or implementation of an otherwise accept-able' emergency plan. To accept such a situation would be to completely frus-au 3 '.
trate this thrice-stated authority and to 09x , ,
tignore;various other existing federal j _
emergency response responsibilities and 4
authorities that will, if exercised, en-
" ablefthe NRC and' FEMA to avoid such an
= unfortunate and unintended result.
~
, 'This Committee.did not legislate the
~ nuclear emergency response provisions in
.a vacuum. . We passed emergency planning E ? legislation back in 1980 with full recog-nition of..the various~ existing federal and state emergency planning responsibilities'and authorities. . It is abundantly clear, for example, that:the Governor ~of,a state,-as well as other C" -
- stateEand local 1 authorities, are under an 4: '
_ obligation.to act.to protect the public
- m . health'and' safety in the event of an ac-tual: emergency. No'public. official to
. -date has stated that he would not fulfill
./ this legal duty ~and-I would be quite'sur-
- "J C' ' -prisediif~such-a claim were to be made in
- the - future ..
w ftC}he NRC Authorization Act for fis-jk caltyear11980 previded for a substantial g< expansion of'theffederal governcent's
- emergency' response authorities. Section F 109lof~the'Act, for example, established V , 'a; pervasive and. preemptive federal role n q.
fortthe review-and' approval of off-site E en '
eb % 't
- k: , , ,
, l
, y
- O'~'v-
~
Q:
emergency response plans for commercial nuclear powerplants.
1 In addition to the foregoing, I also want to take this opportunity to clarify a' number of points regarding the utility plan option over which considerable con-fusion has arisen-in recent months.
First, this provision was originally adopted in response to Congressional con-cern over two potential problems:
"2 (1) the case where a state or locality submits a plan, but that plan does not 4 satisfy all the guidelines or rules; and (2) the case where a state or locality does~not submit a plan at all.
It is this latter point that has often been overlooked or misconstrued in a the debate.over the utility-plan option and which, accordingly, the Committee has reaffirmed in.this report, in once again endorsing the utility plan option. In
- '+
particular, it is worth noting-that we have reaffirmed the same basic rationale that was stated back'in 1980, when the
' utility plan option was first adopted:
- "The; conferees sought to avoid penalizing an applicant-for an operating. license if a State or. locality does-not submit an emergency' response plan to the NRC for review . . ." (H. Rpt. 96-1070, p. 27, emphasis added), by. permitting the NRC to issue an operating license based upon a plan prepared by the utility applicant.
This specific point is particularly evident from the context of the discus-sions among the various Conferees when this pr) vision was adopted in 1980. It is apparent from the discussion that fol-
. lows that the Conferees approved the
" utility plan" option because.of a con-cern over the potential for outright re-fusal of a state or local government to submit a plan:
e l
Representative'SYMMS. (sic]
Will.the Senator yield on one question. Let's say, for exam-ple, that the state doesn't cooperate, but the licensee is out there doing everything right along'with the state, so this
- amendment would be a roadblock which would hinder. going ahead with a plan that may have many millions of dollars at stake, isn't it possible?
Senator HART. I think it is
- , possible,'but not probable in the sense consumers are also voting, and if a Governor and voting staff is not taking even minimal steps to prepare for the startup of the new nuclear power plant designed to provide energy for that-area, I think the peo-Lple know'how to get those re-
, sults.
.."3
- We believe, all the people talk about best governments
- closer to the people, I think the people know where their
-state capitals are.and how to n get ahold of their state govern-
. ment and'let them know they are not happy.
a:
Representative VENTO. One of.the points there, since this
~~
,c .overall state responsibility, is
.there;any possibility that we can ir.clude report language, if it'were adopted that would a ,
permit the'NRC or FEMA to work f ..
directly with the utilities? We-can make clear if an individual utility is. being frustrated by
'7 -
- that, that the NRC, in the absence of state action, could
."4t
- ?i' h
{- .s ; *
- .,- f P. - .
act to' approve a plan, and e thereby avoid this particular
, problem that has been discussed.
I don't know what the disposi-
. tion of this;is going to be. It
. seems.to me if wa do anything on cthat basis, it would seem to be
.the. reasonably (sic) way to go so we don't have that impedi-ment.
Senator HART. It is not disagreeable. I think it would
~ be put in;an area whers it
- hasn't'been before; namely, emergency. preparedness, civil *4 de fense'. (Transcript, Joint Conference on the Nuclear Regu-
.latory Commission, February 21,-
980, pp. 16-18, emphasis added.)
" ~
LAs-this discussion clearly indi-cates,1the Confereer did, in fact, L _ contemplate a situation where the
. utility may.end up working directly.
.with NRCLand FEMA to get aniemergen-cy preparednese plan approved.
'Second, I-think it is worth emphasizing that, in adopting emer-gency> planning legislation, this T . Committee has . endeavored .tcr ensure
.that states'and local governments
,~ '
.become actively involved at the ear-liest po'ssible stage in both c-. ( preparing -and implementing. emergency
' plans. Indeed, emergency planning has proven to be~most effective in those instances where state.and
. local' governments work together closely with utilities in the devel-opment and implementation of emer-
.gency preparedness! plans.
1 0n'the other hand, the extensivo
,^
and.important reliance-on state and r
local governments contemplated by.
-this approach,'and their active and A-.
yn - ;
l timely participation in the emergen-cy planning process, was not, in my
. judgment,. intended to confer upon state or local governments the au-thority to' establish their own sub-stantive criteria for emergency pre-paredness plans, to render final
- judgments on the adequacy of those plans when evaluated against the NRC and FEMA criteria, or to penalize applicants or licensees by refusing to submit'an emergency response plan to the NRC for review.
-S. Rep.98-546, 98th Cong.,12d Sess. 22-26 (June 29, 1984)
'6
, ;(Supplemental Views of Senator Simpson) (emphasis in original).
B l
"* L Consistent with the intent of Congress, the NRC emer-gency1 planning regulation permits offsito utility emergency plans'without participation of state and local governments.
Long-Island Lighting Co. (Shoreham Nuclear Power Station, Unit
.1)-(LBP-83-22, 17ENRC 608, aff'd, CLI-83-13,'17 NRC 741 (1983).
- c. New: York State and Suffolk County are attempting to regulate radio-
-logical health and safety.
-It is-undisputed that both New York-and Suffolk County
'are basing their actions on radiological health and safety and
) thatLtheir,. purpose is'to prevent Shoreham from operating. The County has:notLclaimed'otherwise and, though it did contend y?
~
while_ moving;to-terminate this proceeding, that.it-was not m; ltryingito:"regul' ate" radiological ~ health and safety, the Li-t M Scansing; Board found otherwise:
y r,
Vy _
= , ._.
.q ;y 29-We find'this attempted distinction by 4 _ the County to be a sophism. It is disin-
.genuous for the County to.take the posi-tion that County Legislature Resolution No. 111-1C93 does not attempt to make its findings binding on the NRC.
HThe Board's reasoning is laid out in detail in Long Island
' Lighting Co. (Shoreham Nuclear-Power Station, Unit 1),
~
L LBP-83-22,'17.NRC 608, 636-37, 641 (1983) ( footnotes oraitted),
.aff'd on other grounds, CLI-83-13, 17 NRC 741, 743 (1983).
If there were any doubt that the County is attempting to' prohibit Shoreham's operation on the ground of radiological
- health.'and safety, it would be eliminated by the County's latest resolution on the subject, Resolution 1398-84, passed on
~
April 10, 1984:
WHEREAS, the Legislature has, by Res-olution-No. 111-1983, determined that no
-Radiological Emergency Response Plan for a nuclear accident at Shoreham will pro-tect the health, welfare, and safety of Suffolk County; residents; and
.. WHEREAS, the result of such County determination means that the Shoreham facility shall not operate and must be abandoned . . . .
~
(emphasis added).
Likewise the Governor of New York is acting on his own policy or political decisions on radiological health and safe-
~
.ty. The State has said.that it opposes the LILCO Transition Plan (1) because~"LILCO lacks the legal authority to implement h
L w ,- n- p , .y ay-,,, ,,_q -
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,, e s ;
l l
i the' plan for-the reasons outlined in Contentions 1 through 10" l
-and (2) be.cause.the plan is "not adequate and not imple-mentable" and therefore "cannot assure reasonable protection of the public."~ Tr. 2,240-(Palomino).
'The most dramatic example demonstrating the State's mo-
/- utive'was Governor Cuomo's-reaction to Department of Energy Sec-retary Hodel's.requestLfor state participation in a federal drilloof the LILCO Plan. Secretary Hodel asked the State to participate in an " honest test".of the' safety of LILCO's Plan.
. Letter,-Secretary Donald Paul Hodel to Honorable Mario Cuomo, May 7, 1984. LGovernor.Cuomo rejected Secretary Hodel's request with these words:
You are.apparently not. aware that the-State of-New York-and the-County of Suffolk have pending lawsuits in which-
.they are challenging the purported plan and test as an attempted usurpation of sovereign powers ; reserved to the State
.and County 1under the Tenth Amendment of the Federal. Constitution. . . .
(( ' To accede to your request, when the L
federal government is in the same legal position as LILCO, would jeopardize the state's legal standing in these actions.
4 Letter, Governor Mario M. Cuomo to Secretary Hodel, May 9, 1984
, (emphasis'added). -And-why'was the State challenging-LILCO's llegal authority? Governor Cuomo' explained in a letter to New
- York Sts.te Sent. tor Warren M. Anderson:
f w
,s
'-- 2n -
+ - .
P , ,
~: ~i '
With respect.to safety, and your apparent
' support of Secretary of Energy Hodel and his " honest' test" of an evacuation plan, J1etime-repeat'what I have told you since our first discussion:of this issue -- the
- safety of our citizens must be our prima-
-ry concern as' elected officials having the public trust in-matters relating to health,. safety and. welfare. . . . To
. _ 1explaintin more detail my position with s , Secretary Hodel, I am. attaching a copy of La letter I sent him last week.
Letter, Governor Cr.otr.o.to Honorable Warren'M. Anderson, May 15, L1984?(emphasis added). The letter to Secretary Hodel, of course,cwas the one quoted above. In short, the Governor's no-ftion of "protec' ting public safety" is to impose state law to
' ~
- prevent approval of LILCO's-plan and prevent Shoreham from op-
.erating,ocontrary-to exclusive federal. authority over ra-diological? safety.9/ ,
Other?public pronouncements of New York officials have
? sounded-the same theme. -This from a letter of July 11, 1983, sfrom Governor-Cuomo to the' Chairman of the Atomic' Safety and
~
-Licensing Board panel:
Y,
[9/; LNew: York cannot possibly deny that its goal in imposing
. state: law is to forbid the operation of Shoreham. When Judge
- Shon' asked New York counsel point blank whether the legal au-ithority contentions were,-in the State's view, dispositive of LILCO's entire license application, . Mr. Palomino responded that fthey were, unless a state court ruled in LILCO's favor on state a' E ~ 1 aw . ' Tr. 3,657-58.
h e
1
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.. n ;
e '.
~
The safety of.our residents has been and continues to be my principal concern in the eva'.uation of nuclear power plant operation 9 in New York.
From the " Statement by Governor Mario M. Cuomo" released December-20, 1983:
The State will oppose any grant of a li-censee to: operate the plant predicated solely and entirely on the LILCO devel-oped and:LILCO implemented plan for evac-
-uation. I have said repeatedly I believe the LILCO plan does not reasonably assure safe evacuation.
.From Newoday, March'5, 1984:
[ Governor] Cuomo,'who appeared on WNBC-TV " News Forum" miautes after the interview with Anderson ended, replied that safety had to be the main considera-tion in deciding whether to open Shoreham. "There are pregnant women out there afraid for their children's lives,"
'he said.
X .From a Newsday article'of May 25, 1984, entitled " Energy Chief
. Yields to NY, Won't ' Impose' Shoreham Drill":
Timothy-Russert, a Cuomo advisor,
~
eaid that "the governor's only interest is safety."
c . wt.
.There is, in short, no question but that Suffolk County and New York State are now attempting to prevent the operation of
- Shoreham on grounds of radiological health and safety by
. seeking to-interpose. state. law.10/
Y10/- If the Intervenors respond by arguing that the original
- . legislative purpose behind the state statutes was (footnote continued) m hi a
e % 4 w e- - - - - - .-- g -
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a1 -
-l (footnoteLcontinued)1'
/ , nonradiological, e the repl'y is' twofold. .First, the motives of 7 0 ithelpeople wholapply~the state laws cannot be disregarded.
~ i Seel-: e . g.', mUnited States v~. City of New York, 463 F. Supp. 604
- ( S.D.N.Y. ; 1978 ) . -In:1976 the City of New York _ amended its 7? , -
, Health'Codefto; require nuclear reactors in_the City _not to.com-
, , imance; operation;without a-certificate from the City health com-taissioner. . J4631 F. : Supp. . at'606. :The. federal government and ja l Columbia: University,:which had a reactor in'the city,_ sued to chaveLthe ordinances ~ declared = void under the doctrine of preemp-Jtion.- The court said thisi v- -
iThe defendants'-final: argument is_that
. .,3 even'if CongressLhas preempted the regula-7": tion'of' nuclear reactors from the stand-
[
~
ipoint of radiological' ' health and safety,
- the City ordinancefin~ question 1 lls.out-1 side =thefscope of this preemption because
'ittregulatesanonradiation-hazards and the
~
4
-Atomic Energy.Act 1 expressly permits this
<typeiof7 local 1 regulation. The Court need 4.. W onot tarry veryllong with this particular argument. .Not.only is it'. inconsistent with
.'~
- fthe'purponeiof-the ordinance as intended at the time of'its-enactment,Las set forth w
^~
1 Jabove,'~but1it{isicontrary to^the applica-
- tion of thefordinance as exemplified by the
" NL . - City's decision 1rej ecting. columbia's - appli-if" c'ation for'a certificate of Health and E'~^' SafetyJforJNuclear Reactor Operation. The
. record.before the Court unequivocally indi-
~
Lcates'that the: City's. decision was based v; ' entirely upon-the alleged possibility of
=g
- - injury:resultinglfrom_an_ accidental release of. radiation. In short, this argument is
, we ,
.without . merit.
,,-~ :463iF.LSupp.;at-614.
,' s s ;Second,,even the purest of~nonradiological legislative mo-
-tivesfwillEnotipermitiwhat-the-State and: County are attempting
'=
~
stoJdo-in thisEcase. ItLis true that the state-law in Pacific
" Gas'&LElectric was allowed.to stand because it regulated need ifor power;rathercthan' radiological' health'and safety. But had
~
LCalifornia~ attempted to_ regulate how nuclear plants were oper-
?
(footnote continued)
m - '
9 ar-t -
"i ,
- d. LThe " traditional" involvement of
- states and localities in nonradio-
- 3 J logical emergency preparedness is m . -irrelevant here.
=.
- The-intervenors may claim that-emergency planning is a
" traditional" state-function outside the field preempted by the
~
q ; Atomic' Energy Act, relying on the following passage in Pacific
? Gas & Electric::
~
"There'is little' doubt that under the
~
-Atomic-Energy Act of 1954, state public futility-commissions or similar bodies are empowered-to.make the initial decision regarding.the need.for power." Thus,
. . " Congress legislated here in a field ~
- .whichJthe States have traditionally 5
c occupied.. . . so'we start with the as-
- s 2sumption1that'the historic police powers
("'
- of the States?were not to be superseded s .by the Federal Act unless.that was the
~c learyand manifest purpose of Congress."
~[ ? Pacific Gas & Electric,-.103 S.Ct..at 1723 (quoting Vermont
?
.~
+ 1.q . Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 550 (1977),
ai %se
- -u;
~
g-- -
"i /(foothote, continued).
, ~
n, ~
LatAd,l even'ifLits mo'tive had:been economic, the attempt would.
i .
ilhavelbeen: preempted. Suppose, for example, that California'had
& M ~ directed u'tilities to= reduce the number of operating personnel lat nuclear plants inLorder7t o'save money and lower electric Prates;sitLcannot-be seriously-argued that such a state law
- , ~
iwould:be7 allowed-to' stand,'whether or not it mandated such ex-treme staffJreductions:that~a utility could no longer meet NRC-isafety requirements:and would-have to shut down. Making it 11-
- ; Llegallto' meet NRC-safety: regulations and so' forcing the shut-f~.
l7 -:downfof plants'in that backhanded fashion is preempted no l' , >
.matterLwhatLthe statets~ reason.
1 3
'f
+
n t AA 0
- c 4 i r
d 4= SJ Mi )
r*
and-Rice-v.' Santa'Fe Elevator Corp., 331 U.S. 218, 230 (1947)).
LThe 1egislativi history of the 1980 Authorization Act does show
- that .some Senators regarded response to emergencies as a tradi .
~
'tibnal state. function.
x:
^
st L To eonclude from this that emergency planning is a tra-d$tional state field, however, does not take us very far. In the:first place, .a distinction has to be drawn between the fatate's:doing emergency planning itself and the state's at-gy 1 tempting to regulate private parties' planning. In-the state's iconductLof itsiown emergency planning, there may be Tenth 1 Amendment problems if the federal government directs the state ng h'ow;so.go about its business. See generally Hodel v. Virginia
- Surface Mining'& Reclamation Ass'n, 452 U.S. 264 (1981).
But
- in the-Shoreham case the State has opted out of emergency plan-Ining: alt'gether-and o is attempting to prevent LILCO from plan-
~
ning. Tenth Amendment issues do not arise here. The federal
- government is~'not telling the state how to'do its business or forcing the state to. plan. It is simply telling the state that
'it cannot interfere with private parties' efforts to protect the~public.as the'NRC regulations require.
In the second place, even where a field has traditi-
' 9 onally'been regulated by the states, Congress obviously may ye
. preempt them. For example, in City of Burbank v. Lockheed Air
' Terminal, 411 U.S. 624 (1973), the control of noise, though F
i . . _ _
" deep-seated in the police ~ power of the states," 411 U.S. at 638, was found to be preempted by the pervasive control re-cently; vested in federal agencies. The question is whether the
--purpose of. Congress to preempt is " clear and manifest." Here, it is.~11/ As the legislative history set out'above shows, Con-gress intended to exert pervasive federal control over ra-diological emergency planning, with federal standards to govern and-a federal agency to judge compliance with those standards.
'Under..those federal regulations, the states and localities may, aof course, participate in the planning process. They may not,
- however,. interpose their laws to prevent emergency planning by g
'a utility.
'11/ Silkwood is easily distinguished from the Shoreham case.
.There the Court found " ample evidence" that Congress did.not intend to preempt state tort-law. The Court found that there "is no indication.that Congress even seriously considered
. precluding the use'of (state tort] remedies" when it enacted the Atomic Energy Act. 'Silkwood, 104 S.Ct. at 623. Moreover, g :the Court'found clear evidence, in the discussion preceding the o
enactment and later amendment of the Price-Anderson Act, that
' Congress 1 assumed lthat persons injured by nuclear accidents were
- .freeoto utilize-existing state tort law remedies.
LOther distinctions'can'be drawn between Silkwood and the n -present case: the punitive damages in Silkwood did not direct-ily regulate a nuclear plant (there was no judicial or legisla-tive; order for plant operators to do something or not do some-
-thing), and it certainly did not attempt to prohibit operation.
Here,-by contrast,-Suffolk County and New York are attempting
-directly to forbid the performance of functions contemplated by federal regulations and to prohibit plant operation. The key
- to'Silkwood is'that the Court simply looked for indicia of Con-
- gressional intent and found them. Id.
(. . .. --- . - --- __ _. . .-
y ..
ky,s 'N Y, ,. . 3 41 b' EF
-2. :The state laws "actually conflict" L .
,with federal law.
^
.Besides invading a federally occupied field, the State 3
[
- laws' cited in Contentions l-10 are preempted because they "ac-Ituallylconflict".with federal' law, particularly the Atomic En-
^ ergyLAct.
/ .a. For Contentions 5-8, it is
. impossible to comply with both state and federal law.
. ~
'Inlthe first place, as to Contentions 5, 6, 7, and 8 f (warning the'public and making decisions and recommendations),
'^
Lif the contentions ~are? correct then there cannot be a utility-fj[ ' emergency plan. .These functions are required by 10 C.F.R. 8
. l . 50.'47 ; state law'says'(according to the contentions) that
_LILCOLis forbidden to. perform.them; LILCO.cannot comply with
~
both:the federal! mandate to perform those functions and the al-
,E
- a. LlegedLstate mandate not to perform them.
The only possible repl?~is that LILCO can comply wita
- both' state and' federal law by simply not operating the plant.
w
, ES uch-an'ar'gument would be absurd. Conflicts between state and federalnlaw can almost always be avoided by going out of busi-v)i ness.lg ~A decision that there is no " actual conflict" if the
, w FP J12/ For example, in Florida Lime & Avocado Growers, Inc. v.
-Paul,e373 U.S. 132 (1963), the Court gave a hypothetical exam-(footnote continued) s
y ;
.r. _
p <q .;
Q( regulated party.could avoid it by going out of business would mean that the." physical. impossibility" test for conflict would
' beta purely. academic one that would never apply in the real e Jworld, and.the Supreme Court obviously did not mean it as such.
-It would be:an intolerable result if a state were allowed to proh'ibit a key safety function at a nuclear plant (suppose, for j .' example, that a state were to ban emergency core cooling sys-items) andithereby make it impossible to meet NRC safety re-quirements without shutting dovn.
a
- V l
g
(
[ :(footnote continued)
- ple of a: case in which' compliance,with both State and federal a regulations would be-a=" physical' impossibility":
V
'That would be the situation here'if, for p example,.the federal orders forbade the picking and marketing of any avocado
? . testing more than 7% oil, while the
' California test excluded from the State any y avocado measuring less than 8% oil content.
Id.:at 143. This,-of course,. presents an impossibility of dual 3 . compliance only so long as the avocado growers want to continue-marketing their fruit in California.
h t
i Y t
! t,4 ,
- u-
s.
Y ,
- TL
- b. For-Contentions 1-10, the state laws " stand as an obstacle to the
- accomplishment of the full pur-poses and objectives of Congress" ic Inithe second. place,-the state and local laws cited in
- all ten contentions " stand as an obstacle to the accomplishment c ,
-of -the full purposes and objectives of ~ Congress. " What are ithese'" purposes and objectives"? The legislative history set outiabove shows that there are at least three:
. '1. The purpose of having effective emergency plans,
- 2. The purpose'of having uniform standards of emergency planning, and E
- 3. The purpose of encouraging nuclear power.
.(1) The purpose of having effec-tive emergency plans
- It goes without saying that one Congressional purpose L
hf ~ is that eventually there be an adequate emergency plan for s .
);. every. nuclear plant, and that the public should be protected
.; H -- the reby . -Throughout'the process of-enacting the 1980 and "J 1982-1983 NRC Authorization' Acts, Congress made clear its in-tent?"that-ultimately'every nuclear pcuer plant will have ap-
.plicable to it a state emergency response p_un that provides y reasonable assurance that the public health and safety will not
- be endangered . .. ." Conference Report on H.R. 2330, 3.
u
}:
p Authorizing Appropriations to Nuclear Regulatory Commission,
' Fiscal Years 1982 and 1983, 128 Cong. Rec. H7677, col. 2 (daily ed. Sept. 28, 1982). Congress wanted the plans to be state and local' government plans but permitted utility plans, so long as the;public health and safety was adequately protected.
The purpose of having good emergency plans would be thwarted by State laws that prevented a utility plan from being Jas effective as it could be. And that is precisely the effect
- of the-laws, interpreted as the intervenors urge, cited in Con-tentions 1-4, 9, and 10.
(2) The purpose of having uni-
- form federal standards of emergency planning l-The Congressional purpose of having uniform federal standards _for emergency planning and a uniform system of regu-
-lation would also be frustrated if States were permitted,
-r first,_.to abandon emergency planning themselves because of their own views about the safety of a nuclear plant and, sec-
~
U "ond,.to-prevent the utility from planning by, applying to it J
[ multifarious. state-laws such as those aimed at " joy riding."13/
h ljb/ The statute claimed by Contention 4 to prevent LILCO from removing obstacles from roadways, N.Y. Penal Law $ 165.05
[4 (McKinney Cum. Supp. 1983-84),- is in fact a law enacted to pre-vent teenagers from taking other people's cars. The statute, Yf P
(footnote continued)
<?
(
I b
1FW - W '
y-1 >
~pg is ~
p ,_.u- >
~ '
.f g; ; - '1 s
~
, [TheNiabilitycandIef'fectiveness.ofemergencyplanswouldbede-
\termined:not1by the standards of NUREG-0654 but by the vagaries G s
, . Kof:localDlaws and the policies of local governments. This too m ,
.' 1 3"
s#. ,
would; frustrate:th'e purpose of Congress.
~
v
~
~
(3) The purpose-of encouraging
, 1L , ' ' nuclear power o ,
1That Congress intends to . encourage atomic enet gy is in-
,a '
yUdisputable. 'As'the Supreme Court has said:
f '[T]h'ere is littlel doubt that a primary
- fj 1 . purpose of the' Atomic Energy Act was, and gg_ Jcontinues'to be, the promotion of._ nuclear 4
power.
+ '
4ps . . , . y ~
po^ . -
- )Silkwood,s
- 104cS. Ct. Tat'626;(quoting Pacific Gas).
%. To:beisure, "the promotion of nuclear power is not to
- v. ,
f be ; accomplished ' at. all. costs. ';' Silkvsod, 104'S. Ct. at.626
, ;(quoting' Pacific Gas).- Atomic energy-should be developed and ru>
~
'Lused only to;the extent it is consistent "with the health and
. hj -
'I; safety of-the public." .Id.-(quoting-42 U.S.C. E'2013(d)).
1ButJLILCOhis not proposing to operate Shoreham without OT,,i.. ;
s A 4 %
- v
- , s J(footnote continued) 2 entitled " Unauthorized use.of a' vehicle in the third degree,"
T , . .. fi's: derived'from an earlier statute defining.the offense com-
? t' - "mo'nly known-'as_" joy riding.." The present. statute ~is drafted
- "to encompass .certain offanses analogous to embezzlement ' as
~
, wellfas those ofithe ordinary trespassory taking variety." A.
2Hechtman,~ " Practice Commentaries," following N.Y. Penal Law
- ', l 165.051(McKinney 1975). .
~ ,
T 95 J. h s-la
- f. <
u
_43_
protecting'the hedith and-safety of the public, and Contentions 10-do not question whether'the LILCO Plan can in fact protect lthe health and safety of the public; they address the quite different issue of whether the state will permit LILCO to pro-L tect the.public health and safety.
The short of the matter is that Congress wants nuclear plants to. operate, so long as the public is adequately pro-w tected, and has authorized utilities to proceed with emergency
. planning, with or without state or local government participa-
~
- tion. The Congressional purpose would be destroyed if a state
^
could apply its laws to interfere with such compensating plans Land.thereby force the' shutdown of nuclear plants.
B.
~
Even~of preemption does n6t resolve Contentions.1-10, the adequate assurance required by 10 C.~F.R. 5 50.47 exists for
' Contentions 1-2 and 4-10 because the State and the County-would respond to an actual emergency
- Under'10 C.F.R. 5 50.47(a)(1) or (c)(1), the Board can grant cummary. disposition in LILCO's: favor on Contentions 1-2
" ~ ' ~
and 4-10~because it.is an undisputed fact that Suffolk County
-and New' York State would respond to an emergency at Shoreham, thus removing any: legal bar to a LERO response.
t t
it 54 m
" co1 1. Assurance under 650.47(a)(1)
Section 50.47(a)(1) of 10 C.F.R. requires the NRC to findLthat "there is reasonable assurance that adequate protec-tive measures can and will be taken in the event of a ra-didlogical-emergency."- This Licensing Board can make that
. find'ing for-the.LILCO Transition Plan as it currently exists --
.even if state laws prohibit LILCO's taking the actions de-scribed in~ Contentions 1-10 (as we assume arguendo in this mo-tion) and'even if those state laws are not preempted -- because there is no question that New York State and Suffolk County
- would respond to an actual emergency at Shoreham. The Governor said so in a press release dated December 20, 1983, as follows:
Of. course, if.the plant were to be oper-ated and a misadventure were to occur, both the State 'and County would help to the extent possible; no one suggests oth-erwise.
LCordaro and'Weismantle (State Emergency Plan), ff. Tr. 13,899,
.at 7.14/' Participation by the State or County would cure any
' lack of authority.15/
'14/ Throughout this motion, citations to oral and written tes-
.timony of witnesses follow the conventions ordered in the
- Board's " Memorandum and Order Establishing Format and Schedule of Proposed Findings of Fact and Conclusions of Law" dated July 27,-1984.
15/ Under New York Executive Law Article 2-B, the Governor has the authority to direct the response of a locality during an (footnote continued) z' (
m -
y I , i m
}" 9 :
, n .
1 l
MSun County undoubtedly will urge the Board to ignore
.yJ *~ ~ : ;
the? evidentiary fact that Suffolk County and New York State w '
would respond -in ' a : real' emergency, arguing as they have often
..in'thelpastithatLwhat is being litigated here is the LILCO Plan LE , Jand nothing-else,fand that the LILCO Plan does not rely upon
.the State'and County to respond. The short answer to this is
+
- ^ -
athatlitiasks-the-Board to' base'its decision on a fiction and to g;[ < ignore the material. fact, established on the record, that the
,;Stateland' County:will~ respond.
It is true that the LILCO Plan yu 4 ._ .
O~ se Jcanistand. alone,'without:the participation of local and state 9 government.c But;in addition there is assurance'that governmen-
~ ,
H -
ttal; resources -- Land legal- authority -- would be made avail-able.- Th'is is.the truth, and no party can reasonably expect jff ~ .the Board'to be blind to'it.
g;
,f a
l(footnoteicontinued)
. ;g:;;M: . .m
"' ; emergency if the local executive does not act. See N.Y. Exec
'* The Governor's powers in-
, Law-Art. 2-B 528-(McKinney 1982).
iclude;;theTauthoritystemporarily to suspend specific provisions
~g j' g' "
>ofnanyfstatute, local' law,' ordinance, or orders, rules or regu-clations,for parts lthereof,.of any agency during a' state disas-
. .ter2 emergency. .N.Y. Exec. Law'l'29-a (McKinney 1982). This,
' ^
of course, would remove any legal obstacle to LERO's perfor- i
^
_ Emance.of emergency functions. Article 2-B need not be relied
- upon;in; determining whether summary disposition should be
. s
- granted,-however,cbecauseLthe Governor has stated that govern-
- ment. officials will1 respond.
)
'h_'
d
- + >
- M l e.
OT :
p p Indeed,1the expected participation of County and State v"
officials is taken into account in the LILCO Transition Plan.
State and' County personnel could communicate with LILCO and LERO using existing systems already installed. Tr. 13,737-41 (Daverio). -(IfLthe State has unplugged the RECS telephone, it
~ ~
need only plug it in to communicate in an emergency.) LILCO Transition Plan, Figure 4.1.3'and pages 4.1-1, 4.1-4; Cordaro
-and Weismantle, (State Emergency Plan), ff. Tr. 13,899, at 8.
LThere is. space in the' emergency operations facility, the emer-
.gency operations center, and the emergency news center for use by State and County officials. aILCO Transition Plan, 3.8-5, 3.8-6. And the Director of Local Response is to take into ac-count, in making protective action recommendations, advice that
.may be received from local and State government officials.
LILCO Transition Plan, 3.1-1 and OPIP 2.1.1, p. 5 of 79. Like-
. wise,, traffic guides are trained to assist police, should po-lice. participate in an emergency. LILCO Transition Plan, OPIP 6
3.'.3,-p.-11 of 46; Babb et al. (Training), ff. Tr. 11,140, at Vol. 5,. Attachment 20, Module 12.
Consequently, while it is true that the LILCo. Plan was developed'to function without State and' County resources, it is designed to function with government personnel participating as well. And government
-personnel will be available in an emergency.
I:
m
0,1 -
^
j ,*i~-y > '
In' denying Suffolk County's motion to terminate this
. proceeding,: the Licensing Board. addressed the need for realism
~ ;inithieflitigation as follows:
.The County is entitled-to~ litigate vigor-l'ously its view that.no emergency plan for Shoreham is. devisable which can be imple-
+
mented to meet the Commission's regula-tions. Perhaps part-of the County's fac-
'tual casefwould be that specific elements c #.! aof its resources are'not_ capable of per-
. forming: specific aspects of necessary
-J f u n c t i o n s ,1 e . g . , . traffic control in some locations, during a radiological emergen-P , cy. . This.would!be the proper use of the g; ' hearing process before us. This would be lmuch different, however, from a position by:the. County that it will not permit its
- , Lpersonnel"and other resources to be used k - _
Lto; assisti in implementing any emergency
- plan,Jin. order to effectuate its desired
-result that Shoreham not be found to. sat-
- isfy the'NRC's requirements-for an op-
-erating license.
-e _ JIfcthe' County seeks to have its findings
, ~ + ' adopted,3it.must.. litigate before us the
'factsLwhich it believes' support its view "G , that.it'is not feasible to-implement-f, a~ -1 emergency preparednessLactions,which
.'-* . _ _ ;would meet:NRC regulatory requirements in h"; vii;d " ~~
the event.of a. radiological emergency at 40 , the-Shoreham nuclear power-plant. The~
right:of-the Countyfto litigate whether E ' necessaryfemergency actions can be taken mayLbe distinguishable from the circum-
, stancesfof a; governmental ~. litigant before Lus which simply' refuses to take otherwise
~"
./ feasible actions.
c' s s
} . .#,'
.s 1
i t L
@w
-- to Td=,
RLong' Island Lighting Co. (Shoreham Nuclear Power Station, Unit s
1), LBP-83-22,-17 NRC 608, 637, 643, aff'd, CLI-83-13, 17 NRC
.c 741 (1983). In. Contentions 1-10, the County and the State are
. arguing precisely-what was prohibited by the licensing board:
.that.because they will not participate in emergency planning,
- -LILCO cannot operate Shoreham. This argument should be re-jected.once again.
.Because the emergency functions at issue in Contentions 1-2 Land 4-10 arise not during the planning process but only
- during a'real emergency, and because State and County officials would-respond during a real emergency,. Contentions 1-2 and 4-10 Edo,not. raise any material issue about whether adequate protec-
-tive-measures can and will be taken in the event of a ra-diological emergency'at!Shoreham. ~Therefore, LILCO is entitled to summary disposition on these contentions.
- 2. ~ Assurance under 650.47(c)(1)
Even if the Board were to find that Contentions 1-10 ra'ise issues that question whether reasonable assurance that
_ adequate protective measures can and will be taken in the event of.a radiological emergency under 10 CFR 550.47(a)(1), the Board should still' find that, under 10 CFR 550.47(c)(1), LILCO has demonstrated that adequate " interim compensating actions" have been taken', that " deficiencies in the Plan are not
W -
t .
~
5 - 8 m.
Y a , . .
, significant for the plant in question," and that there are "other? compelling reasons to permit plant operation."16/
.Although thus far this proceeding has gone along on the c
lassumption.that LILCO must comply with 10 C.F.R. 5 50.47(a) and swith1NUREG-0654 as fully as a state _or local government plan at
, any otherJplant,. and though LILCO believes it meets or exceeds
~
)those standards,-in fact a 1 esser standard applies. The Tran-
-sition LILCO Plan is an'" interim compensating action" under 10
?C.F.R..5 50.47(c). The_ Commission has said that such 3 . compensating, actions do not necessarily have to provide the 4s,,
- same? level of protection as if.there were no deficiencies:
/1_6/ 10 CFR'll50.47(c)(1) provides.as follows:
, : (c)(1) Failure to meet the applicable standards set forth_in Paragraph (b):of this section may s -
result'in tho Commission declining to issue an
- operating license; however, the applicant will
- 1. ; have an opportunity to demonstrate to the satis-faction-of the Commission that deficiencies in
- the Plans'are not significant for the plant in question, thatLadequate interim compensating ac-ltions'have been or will be taken promptly, or that there are other compelling-reasons to per-mit plant operation.
,, ;This provision was intended to be consistent with the 1980 NRC Authorization Act,.which initurn was intended to ensure that tutilities whose surrounding localities did not participate in s emergency planning, for whatever reason, would not be penal-
. iz ed .- 45-Fed. Reg._55,403 col. 1 (1980); H. Conf. Rep. No.
- g" L,96-1070,796th Cong., 2d Sess 27 (1980), reprinted in 1980 U.S.
_ Code.Cong. -& tad. News 2260, 2270.
.g: ,
s I '. _
x m_
h?" - _49 y
?
C:.
p hP , [T] hough interim compensatory actions y, '
must be " adequate," this did not mean y ^
that-they would necessarily provide the f same level of protection that complete
- correction'of the deficiencies would
. ' offer.
Consolidated Edison Co. of New York (Indian. Point, Unit No. 2),
7
~
ICLI-83-16, 17.~NRC'1006,.1010 (1983). .Thus, failure to meet one 4or:more,of-the emergency planning standards does not necessari-m g; ,-
'ly,entailfdenial:of an operating license.
Southern California
-Edison-Co. (San Onofre Nuclear Generating Station, Units 2 and
' 3),-LBP-82-39, 15.NRC 1163, 1174 (1982).
With the evidentiary record in this proceeding almost complete, thefonly " deficiency" that is left in question re-
-garding the LILCO. Transition-Plan (and,.in'cidentally, the only
- j " unique local condition" that Suffolk County has been able to
' -provide):is suffolk County's and New York State's refusal to e? . pl'an .' -Contentions 1-10 simply invoke this single fact ten dif-
-ferent1 times, and allege in ten different ways that only a gov-p - .ernmentLean: perform. emergency response fu'nctions. But since
- f ; >
,1the' State and. county governments would participate in a real emergency, the existence of-the LILCO Transition Plan, which is 1 capable.of incorporating. State and County resources, is an ade-quate " interim compensating action." For the same reason, the
- " deficiency".of government nonparticipation is not "signifi-
-cant""for.Shoreham. And for the same reason, the Board should L s.
T -
f f.,
,A k'
k n ;
~
E find thati there are "other compelling reasons to permit plant g : operation." 10 C.F.R. 950.47(c)(1). The alleged illegalities complained of in Contentions-1-10 are easily eliminated by the y
! State and County taking'part in an emergency response for
' s JShoreham. Since, as noted above, local and State governments will respond,.the issues.in Contentions 1-10 do not affect the
' E levellof: protection afforded the public during an emergency.
cMoreover, .the County and the State, if they believe there is a
-legal problemcan eliminate it by participating in pre-
-emergency planning, or by authorizing LILCO to petJorm the al-
+
-lagedly illegal acts.
n-In nhort, Suffolk County.and New York State ask this
_ Board in Contentions-1-2 and 4-10 to make a tictitious prospec-tive finding that, at the time of an emergency, LILCO will be j- ;taking_certain emergency response actions illegally under state claw; and therefore that LILCO's plan does not meet NRC regula-tions. LILCO asks--the Board to make an accurate prospective
' finding:--~that at the time of an emergency LILCO would be tak-ing1 emergency response actions in conjunction with, or autho-c crized by, government officials, and that as a factual matter
- 'any theoretical' legal bar would be removed. Therefore, under 6
~
'50.47(c)(1),fthe " illegality" of the LILCO Plan under New York State' law disappears as an obstacle to operation.
r
-i,e n m. -w m- e,1-rsm^
em--%s- <-gMge y-w--*+-w-.w-t--esge+w w- w-w%-e =r---- - m---w-e- -ew= -ww+w rw--
?* :
- l , ; - _g1_
C. The Plan would be adequate even without'the actions-challenged in i Contentions 1, 2, 3, 4, 9, and 10
~ ~
'. Contentions 1-4'and 9'all challenge the legality of ac-ctions taken to support the traffic plan portion of the LILCO s
Transition Plan; Contention 10 challenges the actions to be Ltaken to maintain' security at the-EOC, EPZ perimeter, and relo--
Jcation centers.17/ But " directing" traffic, " channeling" traf-b tfic,Eputting up' traffic signs, and dispensing fuel from tank
- trucks'are not necessary for reasonable assurance that adequate t _.
l protective' measures.can and will be taken in the event of an
- eme'rgency at Shoreham. Moreover, LILCO does not plan to " tow"
. cars?or." maintain security" in the manner apparently envisioned j 'by Contentions 4 and 10. Therefore, the Board should find for rd LILCO-on these issues.
l' First', the record developed in this proceeding 18/
shows that LILCO could implement what has been referred to as f 12/: LILCO disagrees with some of the characterizations of its
' planned emergency, response in the contentions, as explained in
. Part II below.
, '1jb/ Strictly speaking, some of the facts recited in this mo-tion may not be uncontested in the way that facts in support of summary- disposition motions usually are. See 10 C.F.R. 52.749 (1984). But since the evidence from both sides is already in
'the' record, the Board can decide the few facts that may be con-tested without further hearings, and so summary disposition is appropriate.
I iv. l
- 'j];
an " uncontrolled" evacuation -- using no traffic guides, signs, Y ' cones, or channelization -- with an. increase in evacuation
. times of less than 1 hour1.157407e-5 days <br />2.777778e-4 hours <br />1.653439e-6 weeks <br />3.805e-7 months <br /> 35 minutes in normal conditions and 1 hour-55 minutes in inclement weather. Cordaro et al. (Conten-
. tion.65),,ff. Tr. 2,337, at 15 and Attachment 6. NUREG-0654 and the.NRC, regulations regarding adequate. protection in an
' emergency at a' nuclear power plant do not provide specific
. traffic time estimates that must be met in order to respond ad-equately to an emergency, but, rather, require that accurate
' estimates be developed so that the goal of dose minimization E =can be achieved. Id.; see also Detroit Edison Co. (Enrico
- Fermi Atomic' Power Plant, Unit 2), ALAB-730, 17 NRC 1057, 1069 En.113.(1983). .LILCO's evacuation' time estimates, including the "uncoritrolled" evacuation time estimate, are comparable to es-timates for.other nuclear power plants. Id. at 46-47.
No one~ suggests, of course, chat an uncontrolled evacu-f Lation would-be better planning or result in a better emergency,
. response; but.it would result in an adequate response in keep-ing;with NUREG-0654, and the record is amply developed for this Board to so find. Cordaro et al. (Contention 65), ff. Tr.
-2,337, at171-72; Cordaro et al. (Contention 23.C, D, and H),
ff. Tr. 2,337, at 17-18. Thus, the Board can dispose of Con-lt entions 1, 2, and 3 simply by finding that an " uncontrolled" evacuation'would. adequately protect the public in an emergency
,. -= 3
< 1 e
J:
Lat Shoreham.19/1 fT, -Second,-as explained below, Contentions 4 and 10 allege
[the~ illegality of activities that are in fact not contemplated
' :by;the LILCO Plan.' The LILCO Plan does not contemplate that c
LEROLworkers would be " towing" cars in the sense of impounding 1them,' or " performing. law enforcement functions" at the EOC, EPZ m.
. - perimeter, or relocation centers in the sense of compelling any
.particular behavior by threat'or by force. Thus, LILCO is en-titled to summary disposition on Contentions 4 and 10 because
'asfa' factual matter the behavior alleged in those contentions dh}
is not a part of the'LILCO Plan.
Finally,.LILCO is entitled.to summary disposition on
' Contention.9 because.the dispensing of fuel is not required by
- .NRC regulations,.and in any event LILCO's evacuation time esti-
- mates are not affected if this function is not performed, as we 1shall,.show below.
1 1
19/ The1Intervenors' legal contentions involving the traffic
~ plans support LILCO's assertion that no specific evacuation
~
time estimates are required. Contentions 1, 2, and 3 assert, not.that a specific time'ostimate must be met, but simply that
}.because the functions described in those contentions cannot lawfully be executed,.the evacuation time estimates in the LILCO Transition Plan are unrealistically low.
~
- L :,
s -
? IV. CONTENTION-BY-CONTENTION ANALYSIS OF THE BASES FOR GRANTING
SUMMARY
DISPOSITION a- JL Contentions 1 and 2: Guiding Traffic
~
'Along Predetermined Routes o
In Contention 1, Suffolk County characterizes the ac-tions;to bentaken under the traffic portions of the LILCO Tran-isition Plan as " directing traffic," to " ensure that evacuees
-follow the evacuation routes identified and prescribed by LILCO
~
inLthe Plansand to ' discourage' noncompliance with those
- routes '.' "20/ L Contention 2 says that LILCO. employees would "im-splement-various traffic control measures".such as " roadblocks,
- prescribed turn movements, channelization treatment, one-way
- roads,Jand blocking lanes on the Long Island Expressway."
The' record shows.that LERO traffic guides will be sta-
..tioned}at. key intersections to facilitate the movement of traf-ific[by'.using hand and arm signals and thus to discourage travel
~
sin certain, directions, though traffic will not be prohibited
- from traveling-in'particular directions.21/
Tr. 2,344
'20/ 13un complete text of Contentions 1-10 'is set out in Ap-
- pendix A to this~ motion.
[;
121/ 'LILCO employees will not be " directing traffic," if that
- . , ' phrase means compelling people to move in any particular direc-tion. ' Traffic = guides will not force anyone to turn in a par-lticular" direction shouldLthey choose not to do so. LILCO Tran-fsition Plan, Appendix A,TIV-8; Cordaro et al. (Contention 65), '
ff..Tr. 2,337, at 76; Cordaro et al. (Contention 23.H), ff. Tr.
2,337, at-21-22; Tr. 2,625 (Lieberman).
y c h . .s Fn " l (Lieberman). . Cones, hand signals, and arm movements will be l
, 'used to-encourage the m,vement of traffic out of the EPZ as
- quickly as_possible, Cordaro et al. (Contention 65), ff. Tr.
x .2,337, at 61-62, resulting in a traffic time estimate of 4
- a. ~
- hours and 55 minutes for evacuation of the entire 10-mile EPZ in summer ~in good weather, and 6 hours6.944444e-5 days <br />0.00167 hours <br />9.920635e-6 weeks <br />2.283e-6 months <br /> in inclement winter weather. Id..at 62 and Attachment 6 (Cases 12 and 19, respec-
- tively).-- Only one'two-way road is converted to a one-way road under-the'LILCO Plan. LILCO Transition Plan, Appendix A, Table XIII.
'LILCO is entitled to summary disposition on Contentions 1land 2 on thice grounds. First, assuming that State law pro-hibits LERO workers from guiding, channeling, and facilitating
- traffic, that state law is preempted by the Atomic Energy Act.
If.Suffolk County or New York State -- or any other government
.withijurisdiction in the Shoreham EPZ --. passed a law that said "LERO. workers, LILCO employees, and any other persons not po-
- licemen cannot direct, facilitate, guide, or channel traffic during an emergency at the Shoreham Muclear Power Station," it l*
would be preempted by the Atomic Energy Act for the reasons de-escribed in part I.A. of this motion. Yet this is precisely
.what Suffolk County and New York State are attempting to do by using existing laws and interpreting them so as to prevent or hinder a response to an emergency at Shoreham, and then arguing 4
3
['
x x
+ '
.r
" that'Shorehameshould-not receive'an operating license because
- LILCO cannot
- adequately respond to an emergency.
Second,-preemption issues aside, the adequate assurance
- ; ' required by 10 C.F.R.
- 6 50.47(a)(1) exists because, as de-rcribed ira part I .B. of thi motion, public officials have stat-Ted that:the State and County would respond to an emergency at p
Shoreham. That response is bound _to include either l(1) providing' policemen to facilitate the movement of traffic bl .,
..during.an evacuation or (2) conferring authority on LERO to do so.22/ LThe LILCO Transition Plan provides for the'incorpora-
-tion-by:itsftraffic-guides of any police assistance offered.
g
-LILCO Transition' Plan, OPIP 3.6.3, p. 11 of 46. Traffic guides
- are trained
- to_ explain-to the police the situation existing at t -the. time of an emergency, to turn over. posts for facilitating trafficLflow to the police, and to remain if necessary as as-
-sistants in' coordinating'the evacuation effort.
Id.; Babb et
, al.l(Training),- ff. Tr. 11,140, at Vol. 5, Attachment 20,
+
{--
..3 s,
q.
LModule.:12. .
> 4 p . .
1 22/ See N~Y. Exec. Law, Art. 2-B, 9 29-a (McKinney 1982). In-
~
, '1 .
, ; deed, if-the County and the State participate in a response, as e they_have said they would, all actions mandated by government
. officials would be, by definition, taken pursuant to governmen-
- tal authority,. including the actions of traffic guides.
L b
[._ -
U v -
L %
Third, NUREG-0654 does not require any particular type
- 1 of traffic 1 control scheme, but only that a reasonable, accurate evacuation time estimate be given in the offsite plan to meet the regulatory basis o'f dose minimization. NUREG-0654 Sections II.J.8, II.J.10.1. The scheme used in the present traffic plan
'for,Shoreham could be modified.to eliminate traffic guides en-tirely, with a.resulting increase in evacuation time estimates
- of-1 1/2 hours. Tr. 2,663 (Lieberman); Cordaro et al. (Conten-tion 65),-ff. Tr. 2,337, Attachment 6 (Case 24). Even this scheme,_which is referred to in the record as an " uncontrolled"
. case, produces evacuation time estimates.that are reasonable when. compared to time estimates at other nuclear power plant
-nites, and meets the' accuracy standards of NUREG-0654. Id. at 46-47.,-Therefore, even assuming that the behavior referenced in Contentions 1 and 2 is illegal, the Board cannot find, as
.sugge'ted in the contentions, that the Plan cannot be imple-mented'. .The Plan can simply be modified to delete the actions described in Cortentions 1 and 2 and to substitute the
" uncontrolled" evacuation time estimates for making protective
' action recommendations.
Again, this is not to say that an " uncontrolled" evacu-ation would be better than an evacuation carried out with traf-fic guides using special traffic control tactics. An ,
uncontrolled evacuation would take about 1 1/2 hours longer LP
c, fi
- ~1 -sc.
than a." controlled"' evacuation. For the vary few postulated accidents where 1 1/2 hours would change a protective action
< . recommendation from evacuation to sheltering, a controlled evacuat' ion mightLprovide greater dose savings than an uncontrolled evacuation. But whether a controlled" or an
" uncontrolled" evacuation time estimate is used as the basis for; protective action recommendations, the choice between evac-untion and sheltering will-be based on the action that affords pg. 'the greates".' dose savings. Cordaro et al. (Protective Ac-
.~, -tions), ff. Tr. G,760, at 27. Thus even without the traffic
. guides, the LILCO Transition Plan would adequately assure that
< protective actions can and will be taken in an emergency.
6 Accordingly, LILCO is entitled to summary disposition on Contentions 1 and 2 because (1) the state laws cited in those. contentions are preempted by the Atomic Energy Act; and (2)11n a real emergency, government participation, which would-a ibe7 forthcoming, would remove any legal bars; or (3) even with-l.:
out 'tdue activities described' in Contentions 1 and 2, the Plan is adequate under NRC regulations.
-B~. Contention 3: Traffic Signs In Contention 3 _the Intervenors assert that it i s ille-Tgal;for LILCO.to post signs to mark evacuation routes. The
. record shows that LILCO's traffic plan does rely on " trail In LAi
y ,9" E h L~ -
blazer"Lsigns-to mark routes out of the EPZ. Cordaro et al.,
,u -
+=
-ff..Tr.12,337,.at 61; Clawson et al. (Public Information), ff.
Tr._10,035, at 12-13.. These signs are to be located along
- every major road in
- the EPZ, id., and will contain the standard
-evacuation _ route logo'used for civil defense purposes
-throughout the country. Tr. ~2,539 (Lieberman); Tr. 2,614-19
.(Weismantle, Lieberman).
LILCO is entitled to summary disposition on Contention s
'3. .First, assuming the state law cited in Contention 3 prohib-I :its..the posting of-the signs, the state law is preempted by the LAtomic Energy Act. I New York State, Suffolk County, or any other, government within the 10-mile emergency planning zone were.to pass law that said "the posting of signs indicating
-evacuation' routes for.an emergency at the Shoreham Nuclear
~
Power Station is hereby prohibited," that law would be pre-empted. Yet_the State and County are merely attempting to use existing state-law to accomplish the same thing. That applica-tion of state law is preempted by the Atomic Energy Act, be-cause it.is an attempt to regulate radiological health and
. safety.
Second, the record shows that the LILCO Plan would be adequate even without the trail blazer signs. The evacuation time. estimates for an uncontrolled evacuation would not be al-tered if traffic signs were not posted along evacuation routes.
L
w-p > <. '
}g
.Cordaro et al. (Contention 65), ff. Tr. 2,337, at 68-69 and At-tachment 6 (compare Case 24-(uncontrolled case assuming route compliance) with Case 34 (*4ncontrolled case assuming 50% non-
? compliance with route assignments)). Therefore, LILCO'is enti-r.
{' tied'to summary disposition on Contention 3, even without fed-
.eral preemption, because.the traffic plan would be adequate without signs.
'C. Contention 4: Towing The Intervenors'have invoked the New York " joy riding" statute:to assert in' Contention 4 that LILCO is prohibited by J
law from " towing private vehicles and removing obstacles from public roadways" and that the LILCO plan therefore does not comply with NUREG-0654,Section II.J.10.k. The LILCO Plan does
, provide for LERO " road crews" to remove stalled cars and other fobstacles.from roadways using LILCO tow trucks and line trucks.
'LILCO Transition Plan,-OPIP 3.6.3, p. 12; Cordaro et al. (Con-L n tention 66), ff. Tr. 6,685, at 6-7.23/
h:" '
'Again, LILCO is entitled to summary disposition.
First, if the state law means what the Intervenors claim, it is
' preempted, because the State and County are using it in an
23/ These actions do not constitute " towing" in the sense of impounding a car. " Towing" as used in the LILCO Transition Plan means removing obstructions from the road, most likely by
/pmerely pushing the car to the side of the road.
I.
c ..
' ;; :s y- ' w 7
~
Ef;g , '
- ~
~
, ' ; attempt to regulate radiological health and safety. If the 6 -
[ State wereito pass a law prohibiting private parties from push-
'ing stalism. cars to the side of the road during an evacuation, m
" a, az ' O (that ! law would be preempted. -The County-and State are merely attempting to apply existing law to the same end.
Second,. preemption aside, the LILCO Plan is still ade-(quate under 10 C.F;R. $ 50.47(a)(1) and (c) (as discussed in
. jpart'I.Biof this brief), because during an actual emergency the a _ t
[ ~
. State.and County would be participating-in an emergency re-sponse.--fThe involvement of a government would remove any legal bar to' removal.of disabled cars from the evacuation route.
II .Therefore, the actions contemplated'by the Plan would not be k
p# ,
taken illegally in an emergency at Shoreham.
- D. Contentions 5 and 6:
Activating Sirens, Making 3.cv -Decisions About. Protective' Action Recommendations, Wi' and Broadcasting ~ Recommendations-to the Public
~
i no _
, Contention'5 asserts that.LILCO is prohibited by law E from " activating sirens" to alert the public that an emergency
.has occurred, and from " direct [ing] the broadcast and contents
- of. emergency broadcast system ("EBS") messages to the puolic";
3 Contention 6 argues that LILCO is " prohibited by. law from mak-ing-decisions-on-protective action recommendations." For the
- reasons- stated below, LILCO is entitled to summary disposition
.ofi Contentions 5 and 6.
7-o 1.~ Activating Sirens The prompt notification system is the primary mechanism to alert the general public of a radiological emergency; the mainstay of this system in the LILCO Transition Plan, as for lmost' nuclear power plant emergency plans in this country, is a system of fixed sirens mounted throughout the 10-mile EPZ, as well-as an emergency broadcast system and tone alert radios.
-LILCO Transition Plan, 3.3-4 and OPIP 3.3.4. Under the LILCO
~ Plan, the Director of Local Response implements procedures to set off sirens at a Site Area or General emergency. LILCO Transition Plan, 3.3-4.24/ Contention 5 alleges that it is 11-legal for LERO to activate the sirens.
L, l
24/ The sirens.are activated using the encoder at the EOC.
-LILCO Transition Plan, OPIP 3.3.4, p. 2 of 7. In the event that'the' local EOC is not activated and the initial notifica-i tion-from Shoreham is of a General emergency with protective
~
action recommendations,-the Customer Service Supervisor, at the direction of the Director of Local Respor.se, instructs the
, . Shoreham Emergency Director to activate the siren system from the Shoreham control room. LILCO Transition Plan, 3.3-5 and
.OPIP'3.3.4, p. 7. In addition, a backup encoder is located at the.Brookhaven Substation. LILCO Transition Plan, OPIP 3.3.4, s pp. 2-3 of 7. If the Curtomer Service Operator is unable to
- reach'the Director.of Local Response within 10 minutes of receiving notification from Shoreham of a General emergency with a-recommendation for protective action, the Customer Ser-3 .vice Supervisor notifies the Shoreham Emergency Director and
~
, requests that the control room activate the sirene. LILCO
-Transition Plan, OPIP 3.3.4, p. 3 of 7.
e
b(e '
m T,
E' ~LILCO is entitled to summary disposition on this issue, n
j_ c because'any. state law-that prohibited the use of sirens to warn n
ilt ipeople of a radiological ~ emergency would be preempted by the i l Atomic. Energy Actrand the regulations-thereunder. Federal reg-
'ulations and guidelines require that there be the capability to notify the public within 15 minutes of the decision to imple-mentfprotective action recommendations. 10 C.F.R. Part 50, Ap-t
~pendix.E,.IV.D.3; NUREG-0654, FEMA-REP 1, p. 3.3; FEMA-43:
k-b Standard-Guide for the Evaluation and Notification Systems for Nuclear. Power ~ Plants, Section E.6.2.
Without notification to'the public, an effective emer-gency response to some accidents cannot be implemented; the NRC L+
regulations require that a. licensee show that an emergency re-sponse can',and will be implemented. Yet Suffolk County and New
- York argue that state law prohibits the actions required by federal' regulations. This conflict between stateLand federal fc flaw requires that the state law be preempted. Therefore, LILCO 91 ;is. entitled to summary disposition on the portion of Contention
,.x 5 that alleges it is illegal for LILCO to activate the sirens
.in the-Shoreham EPZ.
Further,-the fact that New York will facilitate a re-sponse'in an actual emergency removes any legal obstacle.
Under New York Exec. Law, Art. 2-B, $ 29-a, the Governor is au-
-thorized to suspend any law that would impede an emergency
+
k - - - -
-,w., ...-. c- i--- 3., , , -, --... ,. ,,.9- 9 ww. w3,,,,.mw-.7,,. ,-ew-w-9_,mw.-_-y% ,--m.g-,
O
[ '5> '
response. There can be no doubt that the Governor would not c
[ impede: siren activation in an emergency requiring protective actions.
i ..
- 2. Notifying the Public Through the EBS Contention 5 also. asserts that LILCO is prohibited by stateilaw from " directing the broadcast and contents of the Emergency Broadcast System ("EBS") messages to the public."
Under'the LILCO Transition Plan, LILCO employees determine the content of EBS messages, drafts of which are part of the LILCO
~ Transition Plan,'OPIP 3.8.2, Attachment 4, and which have been v
explored at length in this proceeding. Cole (Credibility), ff.
Tr. 10,727, at 15-19; Purcell et al. (Credibility), ff. Tr.
10,727, at 70-72'; Tr. 1575-1702 (Dynes, Mileti, Sorensen, Weismantle). LILCO employees also determine when an EBS broad-o cast should be made and initiate the broadcast. LILCO Transi-
. tion Plan,'OPIP 3.3.4, p. 2 of 7.
LILCO is. entitled to summary disposition of this por-tion of. Contention 5, both because the preemption doctrine per-A 1mits.the activities in question, and because during a real emergency governmental officials would be involved in the emer-
, .gency response. .First, to the extent that existing state law
,is applied to prohibit-LILCO from broadcasting EBS messages, it is preempted by the Atomic Energy Act and by FCC regulations.
.m _.
y :r: e l- JW c
{j' J,
3 6 .
'JEs previously discu'ssed, announcements to the public regarding
. q. : o
{je ' protective action recommendations are required by Nhc regula-JX tions_as' part of an offsite emergency plan. There ja thus a
[ clear conflict between. state law, and federal law controls.
4: In addition,,it is the Federal Communication Commis-
_sion, and not'the-states or local'ities, that regulates broad-
. J , casts ofuinformation~over the radio. -FCC regulations permit an l
'y EBS; system to be~ set.up:by any individual, 47 C.F.R.
$73.913(b), land provide that station managers, without govern-fuent officials' prior' approval or notification, can activate w, t . . .
- 7. any EBS system that has-been set up. 47 C.F.R. 573.935(a).
U <
.Thus, _ itJis clear that.under federal law, the allegations in n
' Contention 5 regarding EBS broadcasts are wrong, and LILCO is c
}- -
' entitled to. summary disposition.
Second,-the contention is wrong because government of-
~
c .ficials.would in fact respond to an emergency at Shoreham.
h Cordaro and Weismantle (State Emergency Plan), ff.'Tr. 13,899,.
-3 ..
{ at 7. The LILCO Plan provides:that the Director of Local Re-sponse will work in conjunction with government ofticials in
<a _
, responding to an emergency, LILCO Transition Plan, 3.1-1, and
- .therefore EBS messages would be broadcast with the cooperation i
.of the-government officials. Consequently, even assuming that
-the~ actions addressed in Contention 5 would be illegal if taken D< , ,
by LILCO alone, they would be taken legally in a real emergency at Shoreham.
4
l5 J ,
39' .
. .m . ,
f . .- -- c -
- 3. Making Decisions-
" ^
Contention 6 alleges that under state law it is illegal
![ , .
2for LILCO to "make decisions and official recommendations to
~ ' -
k [theLpublic as to the1 appropriate. actions necessary to protect w
- ~
A- ,
- the
- publici. health'and safety." ~Under the LILCO Transition pah :
f ,
LP'lan,jthe Director of Local Response, a LILCO employee, is re-5 '
- sponsible for,decisionmaking for responses to be taken pursuant
- m. s
- to.tho' Plan'. lLILCO Transition Plan, 3.1-1.
7; .,
1LILCO is. entitled to summary disposition-on Contention (6 on two grounds. . -The first'is preemption. Contention 6 at-3 '
ti? '
Itempts to use existing' state-law to prohibit'LILCO from making g;1 .
< .ldecisionsland recommendations regarding what is characterized "as;" appropriate actions necessary to protect the public health
,> ^ tandLeafety." This characterization omits a single important
, wordJ-- " radiological." It is only the radiological health and i [ _
isafety thatlLILCO attempts.to make protective action recommen-
- 9. .
..dationaLabout,.and only.because State and County officials at~ - 4
;present refuse-to plan;to do so. LILCO has the authority to do so, in.the absence of the State's and the County's participa-4 '
~. tion,-pursuant to the' Atomic Energy Act.
The County's assertion that LILCO cannot legally make g < _
'?
Ldecisions'regarding protective action recommendations is simply
~+ -
lf ,) "
~
,'. another way of saying that if the: State and the County do not
, , . participate in emergency planning, emergency. planning is a:
tl_ r r 5
p {N'
- _
HQ %
,y ~
. h f -.
._; - , af -
~
Eprohibited by state law. Thus, Contention 6 argues that LILCO 37 i ' ' - Dissin! violation of.-10'C.F.R. Part 50,-Appendix E, Section IV.A,
*n. .
.because "LILCO employees and contractors rather than ' state
.and/orl local officials' are identified'as responsible for plan-
_' ning,~ ordering,: controlling,.and implementing the offsite re-
.sponse including appropriate. protective actions."
'Miis issue was raised by Suffolk County over a year. ago n
Ein its motion to terminate this' proceeding because the County 10 ,,
+ EL'gislature e had decided not to adopt any emergency plan. The w-
- iLicensing: Board ruled then,' and this Board should rule now, lthatLthe' unwillingness of a locality or.a state to participate
~ '
- in-.. emergency planning does not, as a matter.of law, prohibit a
~
, . nuclear.powersplant from operating. Long Island Lighting Co.
(Shoreham' Nuclear Power' Station, Unit 1), LBP-83-22, 17 NRC 1608, aff'd,'CLI-83-13, 17 NRC 741 (1983). To rule otherwise on h ~ Contention 6'isito reverse the decision made by the Licensing
. Board,Jand affirmed by,the Commission, that LILCO is permitted
.byikaw:toshowthatithasanadequateoffsiteemergencyplan
.forathe:Shoreham Nuclear Power Station.
The Intervenors' argument, if accepted, plainly would
~ destroy the " utility plan" option repeatedly authorized by Con-Egress. -Every state would have the power to shut down any or m . + :all nuclear. plants within (or even near) its borders. A state could simply refuse to participate in emergency planning and f
)
fi , then contend that the utility could not perform essential func-y
.tions,without the state's help.
The second ground for summary disposition is that gov-ernment. officials would be involved in the protective action
~ decision-making process if an emergency were actually to occur.
The :LILCO Plan provides for the incorporation of "the County Executiveapr his designated representative" in responding to an , emergency, should that official choose to participate. LILCO Transition Plan, 3.1-1. The County and the State ask this
. : Board to continue the' fiction that in a real emergency they would not. participate in a response, even though the record in this. case shows that the County and the State would respond to an emergency. Cordaro and Weismantle (State Emergency Plan),
ff.-Tr.+13,899, at 7. g
.Thus, because Contention 6 attempts to apply state law in a way that is preempted and that is contrary to prior deci-Laions in this case, and because in a real emergency government
-officials by their own admission would respond, LILCO is enti-tied to summary disposition on contention 6.
- E. Contentions 7 and 8: Making Recommenda-i tions for the Ingestion Exposure Pathway
[ Land for Recovery and Reentry t C Contention 7 alleges that New York State law prohibits LILCO from making decisions and recommendations to the public V,
e e;y p concerning protective actions'for the ingestion exposure path-way; contention 8 alleges that LILCO is prohibited from making decisions and recommendations concerning recovery and reentry. I r) .LILCO_is entitled to summary disposition of-Contentions 7 and 8
- because (1)-state law, to the extent it prohibits protective
-action recommendations for the ingestion exposure pathway and
. recommendations on recovery and reentry made by non-governmental entities, is in conflict with the Atomic Energy Act'and.(2) because in the aftermath of a real emergency gov-ernmental participation would remove any legal bar to these ac-
-tions being taken.
The LILCO Transition Plan provides that LILCO employees will make protective action recommendations for the 50-mile in-gestion exposure pathway.EPZ. LILCO Transition Plan, 3.6-8 and
'OPIP 3.6.6, Section 5.4. The Radiation Health Coordinator is responsible for communicating recommended protective actions to farms, food processors, and other food chain establishments.
LILCO Transition Plan,.3.6-8. The Coordinator of Public Infor-mation is responsible for communicating the same information to the general public. Id. These recommendations would include suggestions about sheltering dairy animals, limiting or ceasing
~
the consumption of certain foodstuffs, washing or scrubbing fruit and vegetables, and other similar precautions. See Cordaro et al. (Ingestion Pathway), ff. Tr. 13,563. In
< addition,Lthe recommendations would identify areas of concern and offer to compensate anyone with economic losses due to food
. being withheld from the market. LILCO Transition Plan, OPIP
.3.6.6,.Section 5.4.3.1; Tr. 13,769-92 (Cordaro, Daverio, Watts).
The Plan also provides that short-term and long-term recovery and-reentry operations will be performed by LILCO em-
- ployees. See LILCO Transition Plan, OPIP 3.10.1. The Recovery
, Action Committee (1) coordinates area radiological surveys,
. (2) e/aluates data, (3) identifies areas to be reentered, (4) mobilizes required resources, manpower, and equipment for reentry, (5) determines that all utilities are functioning,
- that food supplies are adequate, and that evacuation effects on pWolic health are mitigated, (6) participates with LILCO in preparing and issuing announcements specifying the areas that may be reentered, ani (7) ensures establishment of an organiza-tion to estimate population exposure on a continuous basis.
- LILCO Transition Plan, 3.10-1 and 3.10-2.
Two: states are involved in the 50-mile ingestion expo-sure' pathway EPZ for Shoreham: New York State and Connecticut.
~
See, e.g., Cordaro et al. (Ingestion Pathway), ff. Tr. 13,563,
. at 7-8. Connecticut has agreed to implement protective action recommendations when notified by LILCO of an emergency at Shoreham. Cordaro and Renz (Letter of Connecticut Supplement),
u.
lfn
)
c; " b Eff. Tr. 13,858, at Attachment 2. Therefore, the only portion lof the ingestion exposure pathway EPZ that is covered by Con-
.tention 7 is the portion within New York State.
To the. extent that the New York State law cited in Con-tention-7 prohibits LILCO from making protective action recom-m mendations_for the 50-mile EPZ that-lies within New York State, that law is preempted by the Atomic Energy Act and the NRC reg-ulations. In addition, the Governor of New York has said that he would respond in an emergency at Shoreham. Cordaro and Weismantle (State Emergency Plan), ff. Tr. 13,899, at 7. Pro-tective action recommendations for the 50-mile ingestion expo-sure pathway need not be made immediately following the decla-ration of an emergency. LILCO Transition Plan, OPIP 3.6.6, p. 1 of 50; see NUREG-0396, pages 13-14. It is clear from the Governor's statement that New York State officials would be closely involved in making recommendations for the 50-mile EPZ
'for.New York State; indeed, it is inconceivable that the Gover-nor would~not get involved in the aftermath of an accident.
Therefore, even if one assumes that the actions described in Contention 7 are illegal if undertaken by LERO alone, there is still adequate assurance that protective action recommendations
- for the ingestion pathway EPZ will be implemented.
n+ , =- i ,
- w. + _y3_
As to Contention 8, it is clear that, following any A major emergency.at a nuclear power plant, many governmental entities.will step forward to determine what actions should be
- taken to reenter the affected area and recover it 31 necessary.
Tr. 10,509-10 i(Weismantle): Cordaro et al. (Ingestion Pathway), ff. Tr. 13,563, at 38-39; Tr. 13,702-06 (Daverio, Watts); see also Federal Radiological Emergency Response Plan, 40 Fed. Reg. 3578 (1984). Even assuming that the Atomic Energy Act does not preempt the state law cited in Contention 8, and even if recov-r:= Lery'and. reentry recommendations from LILCO were illegal under 7 state law,,many "non-utility entities with the necessary,au-thority" would initiate and implement recovery and reentry for
.the area around Shoreham. It is absurd to assert otherwise.
For these . reascns, LILCO is entitled to summary disposition on Contentions 7 and 8. F. Contention 9: Dispensing Fuel f' Contention 9 alleges that LILCO cannot legally dispense fuel'from tank trucks to automobiles along roadsides. The record shows that LILCO plans to station fuel trucks near evac-untion routes to' assist motorists who may run out of fuel.
. Cordaro et al. (Contention 66), ff. Tr. 6,685, at 14. LILCO plans to provide sufficient fuel such that three gallons of fuel per vehicle would be available. Id. at 15.
v ,.- -
1, . % 1 (; Again, LILCO is entitled to summary disposition, for two reasons. .First, to the extent that the local laws cited in Contention 17 are being applied to prohibit fuel-dispensing ac-4
' tivity to aid in an evacuation, those laws are preempted by the Atomic Energy Act. There is no question but that Contention 9
- represents an attempt to construe existing laws in such a way as to inhibit LILCO from making an effective emergency response and thereby to prevent LILCO from obtaining an operating li-conse for Shoreham.
Second, this Board should find that the LILCO Plan is adequate even without the functions referred to in Contention 9.- Dispensing fuel from tank trucks is not required under the NRC emergency planning regulations, or even suggested by NUREG-0654. Tr. 12,818 (Keller). Even if fuel were not dispersed
- and' cars were assumed to run out of gas, these cars would be
~ Male to coast off the roadway, Cordaro et al. (Contention 66),
ff. Tr. 6,685, at 8, and thus not impede evacuation flow. Therefore,.LILCO is entitled to summary disposition of Conten-tion 9. G. Contention 10: Security The Intervenors assert in Contention 10 that LILCO is prohibited by law from performing " law enforcement functions" at the EOC, at relocation centers, and at the EPZ perimeter and 3
o f~m. that LILCO employees will be responsible for " establishing and f: maintaining security and access control for the EOC, directing
' traffic ~into the relocation centers, establishing and main-
.tAining security at the relocation centers, and establishing and maintaining perimeter /4ccess control to evacuated areas."
The record shows the following:
- 1. 13un EOC is located on LILCO property. LILCO Transi-tion Plan, 4.1-1. . The LILCO Plan does not contemplate that 4
LILCO employees will use threats or force; LILCO employees are assigned to the EOC to identify persons entering the facility.
.LILCO Transition Plan, OPIP 4.1.1, p. 2 of 12.
- 2. LILCO traffic guides will be assigned to traffic control posts along the EPZ perimeter to discourage persons I seeking to enter the EPZ. LILCO Transition Plan, Appendix A,
-at IV-8. The traffic guides will not prohibit anyone from en-tering the area. Id. Individuals will be left to choose for g themselves their course of action. Id.
[ 3. All relocation centers used for the LILCO plan will
, .be in Nassau County. LILCO's Testimony on Phase II Emergency k
y Planning Contentions 24.0, 74, and 75 (Relocation Centers), at 6 22 (hereinafter "LILCO Testimony").25/ LILCO relies upon the Red Cross to' provide relocation centers. Id. at 15. LERO g] y - 25/ This testimony will be heard the week of August 20, 1984, and therefore has not yet been bound into the record. YU
7 workers will rely upon the local police to provide security at relocation centers to the extent it is necessary. Tr. 11,344 (Varley). No LERO personnel would be relied upon to maintain p order at relocation centers. Tr. 11,344 (Varley); Tr. 12,069 (Mileti). LILCO personnel are assigned to relocation csnters . 4 to liaison with Red Cross, provide monitoring and decontamination, and help in the parking lots of the facilities ) to channel people through the monitoring and decontamination a g process and to the relocation center. LILCO Transition Plan, 3.6-7 and OPIP 4.2.1, pp. 1-7 of 22; LILCO Testimony at 24.
, LILCO is entitled to summary disposition on Contention 10 for three reasons. First, to the extent that the laws cited f
in Contention 10 are being applied to prevent the operation of < Shoreham, they are preempted by the Atomic Energy Act. Assum-A ing it is illegal under state law for LILCO to " maintain secu-g h rity and access control for the EOC, [ direct] traffic into the relocation centers, [ establish) and [ maintain] security at the relocation centers, and [ establish) and (maintain] perimeter access control to evacuated areas," the state law is being ap-plied in an attempt to inhibit effective emergency response and interfere with the operation of the Shoreham Nuclear Power Sta- . tion for the sole purpose of regulating radiological health and safety.
Second, as previously noted, New York State and Suffolk County would respond in a real emergency at Shoreham. This means that County law enforcement officials would be available to " maintain control at the EOC" were that neceesary, and to
^
" maintain perimeter access control" at the EPZ perimeter. Con-sequently, there is reasonable assurance that the LILCO Plan will be implemented in this regard.
Third, as noted in connection with part I.C of this mo- ; tion, the LERO workers called upon to perform the activities y discussed in Contention 10 will not be " performing law enforce-mont functions" or requirino anyone to'do anything, and they h will not be using force to " maintain security." Cordaro et al. f (Credibilicy), f f. 7'r. 10,396, at 101-04; Tr. 11,344 (Varley); Tr. 12,068-69 (Mileti). They will be assigned to the EOC, re-e ). location centers, and the EPZ perimeter to assist people. They f will discourage people from entering the EPZ through the use of hand and arm movements and traffic cones. Weismantle and ) Lieberman (Traffic), ff. Tr. 2,337, at 62. As to relocation centers and the EOC, LERO employees will be checking identifi-2 cation of persons at the EOC and channelling traffic and the stream of people who may be arriving at relocation centers for assistance. Cordaro e_t_al._ (Credibility), ff. Tr. 10,396, at 3 101-04. If difficulties arise at the EOC, the perimeter, or relocation centers, LERO workers will call the polico. Tr. a
~
o 0 11,344 (Varley). Finally, sinco all relocation centers relied , upon by the Red Cross to respond to an emergencv at Shoreham will ne beyead Suffolk County, Suffolk police will not be callad to maintain order at relocation centers. 7 In short, LILCO is entitled to summary disposition on Contention 10 because (1) the application of state law in that J k fashion is preempted by the Atomic Energy Act, (2) the County [ will be available in a real emergency to maintain order at the 3 MOC and EPZ perimeter, (3) no " law enforcement" functions are - . performed by LERO workers undir the Plan, and (4) the police in I other jurisdictions will maintain order at relocation centers. k IV. REQUEST To REPLY y [ In addition to the other relief (that is, summary dis-position) requested in this motion, LILCO hereby requests leave to file a reply to the Intervenors' ansser to this motion. Or-dinarily 10 C.F.R. I 2.149 does not pern.it replions it says that after the opposing party answern thu motion, "[njo further supporting statements or responses thereto shall be enter-I tained." In ti.e instant case, however, the issuon are of great importance sai first impression, and a reply should be allowed. The issuer here are almost purely legal, and the pattorn of pleadings used for briefs, rather than for summary disposition J r _ _ _ _ _ _ _ _ _ - _ _ -__
motions, is appropriate. Accordingly, LILCO asks that the y Board exercise its authority under 10 C.F.R. 6 2.718 to
"[r]egulate the course of the hearing and the conduct of the participants" and "[d]ispose of procedural requests or similar matters," as well as its general powers necessary to conduct a fair and impartial hearing according to law, and grant LILCO
.~. leave to file a written reply. V. CONCLUSION For the reasons stated above, LILCO requests that the Board grant summary disposition to LILCO on Contentiou.s 1-10. Respectfully submitted, LONG ISLAND LIGHTING COMPANY
-..Si% *
/ . Taylor Refteley, III James N. Christman Kathy 2. B. McCleskey Renee R. Falzone Hunton & Williams-707 East Main Street Post Office Box 1535 Richmond, Virginia 23219 DATE: August 3, 1984
' ~ " '~ - -- '- - - - - - - - - - --
Wj.R i . e a l' i
-. ) l t
s [ l
+ i
- q Ji_
[,. , Appendix A: . Text of n' "'e r : Contentions 1-10 yI" <
; The preamblexto Contentions 1-10 reads as follows:
M '-
+
! Preamble to Contentions 1-10. 1The -
f ;LILCO~ Transition Plan specifies that in.
,fT an emergency,'.the actions described in
~ Contentions 1 through 10 below may be or-
- i. .~ -. . , , .
n dered to be taken by LILCO personnel.
- .9' %;;d,Q
- #;WW Ab - - CustLusativias:1H Li&ouvia 10 milege Liin L gj ~
-LILCO personnel do.not have the authority ,
- to order or'to perform ~.those actions.
.Accordingly,-as alleged inlthese conten-tions LILCO.cannot, as a matter of. law,
-X . exercise.thefresponsibilities. identified 1 .' -in Contentions 1-10, and.therefore, con-trary,to 10.CFR Section 50.47(a)(1) its Q Plan.could not-and would not be imple-mented. . LILCO's lack of legal authority to perform actions assigned to LILCO
-under.the Transition Plan also results in 8 ,
noncompliance with 10 CFR Section
, - , 50.47(b)(3)3and NUREG 0654, Section , , -A'2.6, in addition to otherl regulatory 1requirementSfas set forth in the conten-
_ ~t ions which follow.
- Contention 1. LILCO is prohibited by law-from, directing traffic. 14. Y . .Veh. &
;Traf. Law 551102, 1602-(McKinney); N.Y.
~~
~
- Penal Law 155190.25(3), 195.-05, 240.20(5)
, l(McKinney);-N.Y.JTransp. Corp. Law 530'
.(McKinney).
Under.the LILCO. Plan, LILCO Lemployees designated " traffic guides" are expected to direct or " guide" traffic to m-e ensure that. evacuees follow the evacua- ,
, , tion routes'identifie'd and prescribed by
'LILCO-in the Plan and to " discourage" non-compliance with-those routes. (See
. LOPIP 3.6.3, at 6a-7 'and Attachments 1 and 4 thereto; Appendix A " Traffic Control,"
^*' .at-IV-5 et~-seg.). These portions of the
~s Plan, therefore,.are incapable of imple-i# -mentation.
-..] ,
, f
'n ';
;- M .j '
k'- ' 3 .. . _ . _ . _ _ , . _ _ , _ _ . _ _ _ _ , _ _ . _ _ _ _ _ _ . _ . . _ . _ _ , _ _ _ _ .
- - ; - ~
, ?' i
~ '
- .)
w<
. .Further,--LILCO's lack of authority to direct traffic. renders.its evacuation time. estimates, required under 10 CFR
/ , Part 50_ Appendix E,:Section IV, and NUREG
-0654, Secti'on-II.J.8 and Appendix.4, in- ,
Eaccurate. LILCO's: evacuation time esti-j, imates (Appendix A at V-3, V-8; OPIP 3.6.1, Attachment 4 2 [ sic]) and the com-puteramodel from which they are derived, L- assume that allLpersons will use only the zprescribed evacuation routes. (See Ap-h.oA% &,r.ulo wy . my m.
..m
.pendix A; ;at' IV-19 V-2 ) . In fact, howev-
*> , :"' Ler,Esince LILCO's. traffic guides are pro-
?hibited by law from directing traffic,
,-e '
LILCO will not be able to ensure that mo-rp'm 1 l - torists will use only the prescribed-
- ; routes, rendering the LILCO evacuation 4 : time estimates inaccurate. Thus, LILCO does not. comply with 10 CFR Section
-50.47(b)(10), Part 50 Appendix E Section
~. LIV, and.NUREG 0654_ Sections II.J.8,
"" ?J.9.5'.,'J.10,'and Appendix 4. Without
, tg
,7 LILCO's assumption that evacuees will g40 follow prescribed. evacuation. routes, the
;g LILCO' evacuation time estimates-would in-
^'
creanejsubstantially. n
; iz f :. - n .
- Contention 2. LILCO.is prohibited by c' law from blockingLroadways, setting up barriers in7 roadways, and channeling 1, '
traffic. -N.Y. Veh.t& Traf. Law-51114~ -ie- ,
; (McKinney);\N.Y. Penal Law $5190.25(3),
4
.195.05,i240.20(5) L(McKinney); N.Y.
1?" 1 :Transp. Corp. 530 (McKinney). Under the.
' ;" ' ~ LILCO; Plan,-LILCO employees are expected pe r s- .to' implement'various traffic control: mea-N ~a e Jsures,cincluding'those listed above, to
'"7I~ o : ensure that. evacuees follow the evacua-
~
. tion. routes: prescribed by LILCO. (Appen-1" " " ' ' ""
, dix AEat Section IV).
1 LILCO's evacuation
, htime astimates assume that' traffic con-y, #> ~
- trol devices such as roadblocks, pre-
+0>- scribed turn. movements, channelization ~ -12 treatment, one-way1 roads'and blocking
- [l
- lanes-on;the Long Island Expressway will 3
4' y be-implemented and effective in directing
,a ,
Land controlling evacuation traffic. (See o < a 3
-v Ib : ~
m W W ; ' A- N - 3 y.4ne" g
- . Appendix A_at Section'IV). Because LILCO and'its " traffic guides" lack legal au-
, thority to implement such traffic con-trols.(see also FEMA. Report at 2-3, 10-11),.LILCO cannot rely on the use.of
, _ traffic control devices to ensu're the use
~
of prescribed-evacuation routes. As a
' result,.LILCO's evacuation time estimates
'are_ unrealistically 11ow and the Plan fails ,tcr comply with 10 CFR Section
.m , ,. 50.47(b)(10),1Part 50 Appendix E Section g p M;pr;S"rl W , TIV,k and-NUREG 0654 5ections II.J.6, J.9, J.10, and Appendix-4.
~
Contention 3. LILCO is prohibited by
, law from posting. traffic signs on road-m ways. .N.Y. Veh._& Traf. Law 51114
- (McKinney);-N.Y.' Penal' Law 55190.25(3),
} 195.05,.240.20(5) L(McKinney). In addi-tion to its proposed use of signs as
. , ' traffic: control _or channelling devices
~(see Contention 2), the-LILCO. Plan also f ' assumes that:" trail blazer" signs will be p' ^~ _ -installed as permanent roadwcy hardware to direct-the,public in the use of pre-
@(,56
- scribed evacuation routes'in the event of 9 '
an. evacuation. LILCO's evacuation time estimates assume that'such signs are in-
- 4"f ~" = stalled. .(Appendix A, at IV-70). .In
=
, fact, however, such signs will not be in-stalled by'Suffolk; County and itsis un -
11 awful-for LILCO to-install ~such' signs. Therefore, LILCO cannot rely on such
' ~ , , -signs to ensure the use of prescribed
. evacuation routes, and its evacuation
~
, time estimates are,'as a result, unre-
_alistically low. Thus,,LILCO fails to comply.with'101CFR 50.47(b)(10), Part 50
. Appendix E Section IV, and NUREG 0654 z . Sections II.J.8,;J~9, .J.lO,
. and' Appendix
'4.
m
.3 *[f[ .
Contention 4. _LILCO is prohibited by
' law from removing obstructions from pub-1- .lic roadways,. including the towing of
- - . private _ vehicles. N.Y. Penal Law 5165.05 b
4 4 ,.
>') _
7-- .
'a (McKinney). .The LILCO Plan provides that
" road crews" made up of LILCO employees will. remove obstacles trem roadways by using LILCO tow trucks and line trucks.
-(Plan, at 4.4-3; OPIP 3.6.3, at 2 and At-tachment 2 thereto). Because LILCO is prohibited by law from towing private ve-hicles and removing obstacles from public roadways, this aspect of LILCO's Plan cannot and will not be implemented. As a w,,.._., &. result,;the Plan tails to comply with
. m.y ._m,~
~ NUREG 0654, Section II.J.10.k.
Contention 5. LILCO is prohibited by law from activating sirens and directing the broadcast and contents of emergency broadcast system ("EBS") messages to the
; public. N.Y. Penal Law $9190.25(3),
195.05-(McKinney); N.Y. Exec. Law S20 et f' seq. (McKinney). Under the LILCO Plan,
-LILCO employees.are expected to order that sirens be activated. They are also expected.to determine the contents of EBS messages, to determine that an EBS broad-cast should be made, and to direct that
.such broadcast occurs. (See OPIPs 3.3.4 and 3.8.2) Because LILCO employees are prohibited'by law from performing such it -actions, the LILCO Plan cannot and will
( 'not be implemented, and the: Plan fails to comply with 10 CFR Section 50.47(b)(5) and NUREG 0654 Section II.E.5 and E.6.
.Moreover, in assigning such functions to LILCO' employees, the Plan-fails to comply with 10 CFR Part 50, Appendix E, Section IV.D.3.
Contention 6. LILCO is prohibited by law from making decisions and official recommendations to the public as to.the
- appropriate actions necessary to protect tha public health and safety, including deciding upon protective actions which will be communicated-to the public. N.Y.
Penal-Law $$190.25(3), 195.05 (McKinney); N.Y. Exec. Law $20 et seq. (McKinney).
^.-
e - -.p
,1..e y-q o -
Under the:LILCO Plan, all. command and
~'
control fuctions,Tas well as all manage-s : -ment and coordination of_the entire emer-gen'cy' response,.are to be performed by various LILCO employees or, in the case Lof1the." Radiation Health Coordinator," by
-an unidentified.LILCO " Contractor." (See Plan at 3.1-1; OPIPs 2.1.1, 3.1.1, l'6.1). Thus, contrary to 10 CFR Part 50, Appendix E,' Section IV.A,=LILCO em-
._u.z_.,., -+ _ . -_ .- .
.ployees and contractors rather than
_y " ~ ' ~ ~
" State and/or local' officials"'are iden-
~
tified as responsible for planning, or-daring,; controlling and implementing the
" offsite response including appropriate protective actions. Because LILCO is prohibited by law from performing such functions', its' Plan:cannot and will not be implemented, and it fails to comply with 10-CFR' Sections 50.47(b)(5), . .
50.47(b)(6), 50.47(b)(10), and NUREG 0654-
' Sections II.E.5,.E.6, E.7, G, J.9 and J.10.
P s 7 . Contention 7. LILCO is prohibited-by - law from-making decisions and official-
. recommendations to.the public concerning l protective actions for the ingestion ex-c posure pathway. .N.Y. Exec. Law $20'et seq.-(McKinney); N.Y. Penal Law
$190.25(3),. 195.05-(McKinney). The LILCO Plan provides that various LILCO employ-ees and an unidentified'LILCO "Contrac-tor" will be' responsible for determining, making.to the public, and implementing
. protective action recommendations'for the 50-mile ingestion exposure pathway EPZ.
(See Plan ~Section 3.6; OPIP 3.6.6) Be-sC . cause LILCO employees and contractors are prohibited by law from performing these actions, the proposed ingestion pathway
'EPZ' protective actions cannot and will not be implemented. Therefore, the Plan
. fails to comply with 10 CFR Section
-50.47(b)(10), 50.47(c)(2), Appendix E
' Section IV.A.8, and NUREG 0654, Section II.J.11.
.g
,i.~- -- ,-,---,,--......m. -
- -.---,.--,,w.,, .,-,.-,--...-r,..,,wp- e.,4-r---- em s , c- -r,., ----,-vr--
~
\ -
'g -
~
. Contention 8. LILCO is prohibited by law 1from making decisions and official recommendations to the public concerning recovery and reentry. N.Y. Exec. Law $20 et seq. (McKinney);'N.Y. Penal Law 5190.25(3),fl95.05.(McKinney). The LILCO Plan proposes that short-term and long-term recovery'and reentry. operations will be; performed by LILCO personnel and con-tractors following a radiological emer-
_ E L; -
. . . . . gency at Shoreham (Plan, at 3.10-1 and
. y- -= m.
"3.10-2;;OPIP.3.10.1). LILCO identifies
- no non-utility entity, with necessary au-thority, which has agreed to undertake the initiation or implementation of the
. recovery and reentry process.
Since,
- under t2um LILCO Plan, command and control-ifunctions are assumed by LILCO,,and under New: York; law, LILCO does not have the au-
.thority to perform recovery and reentry y '
. functions,; recovery and reentry cannot be cinitiated or' implemented.' The Plan thus failsito-comply with.10 CFR Sections 150.47(b)(1), 50'.47(b)(13), and NUREG 0654
~
-Section II.M.
*~
' Contention 9. LILCO'isEprohibited by
, lawifrom dispensing fuel from tank trucks a- Eto automobiles along roadsides. .Suffolk
. County Sanitary Code, Article 12; Code of MK:( - 4the Town of Brookhaven, Chapter 30, Arti-cle X.. The-LILCO Plan provides that g s LILCO' fuel-tank trucks will.lut stationed
;along evacuation routes to assist motor-
'ists who?rus~out~of fuel. .These trucks Lwill; dispense up to:three gallons of fuel
~
- -per vehicle to vehicles that have run out
.of fuel. (Appendix A-at IV-176). Howev-
,'. [ er,LLILCO is prohibited by law from ,
- ~ < ' distributing. fuel to motorists on the roadsides,..this aspect of the LILCO Plan gy jL cannot and will not.be-implemented. It d+ is likely that many evacuees will not 33 jp- begin an evacuation with a. full tank of o' J:p - gas. -Many cars may run out of gas, both ,
EF4 ,
'I -inside and outside-the EPZ, as a result
, .of extended operation times due to q-
_ -v< i 4
+
{ -.
- i 4 1 W <*
m
+
fT* congestion, stop-and-go conditions and time' spent sitting in queues. Cars run-ning out of gas, and the probable aban-donment of vehicles which will follow, will. result in obstructions and blockages onLroadways:in use during the evacuation. LILCO's evacuation time estimates da p-t take cars running out of gas'and the re-sulting road obstructions into account. If L1LCO cannot effectively prevent or _; . . _ m: remove such obstacles, its evacuation
.,.,- m. .m. ' '~ ~
time estimates will increase. The LILCO Plan thus fails to comply with 10 CFR Section 50.47(b)(10), Part 50 Appendix E Section IV,.NUREG 0654 Sections II.J.8, J.9, J.10, and Appendix 4. Contention 10. LILCO is prohibited by law from performing law enforcement functions at the EOC, at relocation cen-ters, and at the EPZ perimeter. N.Y. Penal Law $5190.25(3), 195.05, 240.20(5) (McKinney); N.Y. Transp. Corp. 530 (McKinney); N.Y. Veh. & Traf. Law 551102, 1602 (McKinney); N.Y. Exec. Law 520 et seq. (McKinney).- The LILCO Flan identifies LILCO employees as being re- , sponsible, during an emergency, for es-tablishing and maintaining security and access control for the EOC,' directing traffic into the relocation centers, es-tablishing and maintaining security at the relocation centers, and establishing and maintaining perimeter / access control to evacuated areas. (OPIP 2.1.1, at
.60-61; Appendix A at IV-8; OPIP 3.6.3, Attachment 4). 10 CFR Section 50.47(b)(1) requires LILCO to demonstrate that it "has staff to respond and to aug-ment its initial response on a continual basis." LILCO must also "apecify the functions and responsibilities for major elements . . . of emergency response,"
-including law enforcement response.
- NUREG 0654, Section II.A.2.a. Without the ability to provide security at the EOC and relocation centers, and provide
.rm;m;;. . ..
... s. .
' N: ~
Q , , perimeter. control, the LILCO Plan and the
-protective actions contemplated therein could not and would not be implemented.
'The Plan thus: fails to comply with 10 CFR
- Sections 50.47(b)(1)~and 50.47(b)(10),
.and NUREG 0654, Sections.II.A.2.a,-J.9 and J.10.
C si%iMGMW:51 ~ "- - - - s 1 e I d
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