ML20099E560
| ML20099E560 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 11/19/1984 |
| From: | Christman J HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#484-253 OL-3, NUDOCS 8411210405 | |
| Download: ML20099E560 (70) | |
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LILCO, November 19, 1984 Of{ETED Il "'f/ ?] s'n :l 3 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board in the Matter of )
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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3
) (Erergency Planning (Shoreham Nuclear Power Station, ) Proceeding)
Unit 1) )
LILCO'S BRIEF ON CONTENTIONS 1-10 Hunton & Williams P.O. Box 1535 707 East Main Street Richmond, VA 23212 November 19, 1984 hhR OC 0 000 g G
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-UNITED STATES OF~ AMERICA -1 NUCLEAR REGULATORY COMMISSION
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. i Before the Atomic Safety and Licensing Board' l
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-i In the Matter of -)
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LONG ISLAND LIGHTING COMPANY )' _' Docket No. ' 50-322-OL-3 :
) -(Emergency Planning (Shoreham Nuclear Power Station, ) Proceeding)
- Unit '1) )
LILCO'S BRIEF ON CONTENTIONS 1-10 Here, in response to th'e -Board's " Memorandum and Order Deferring Ruling on LILCO Motion for Summary Disposition and Scheduling Submission of Briefs on the Merits" of October 22,~1984, is LILCO's brief on the merits of Contentions 1-10 (the " legal authority" issues) and on the three questions raised by the Board on pages 3-4 of the above-cited Memorandum and Order.
In part I beiow we set forth the reasons why LILCO should prevail on Contentions 1-10, including the merits of whether the State laws cited in the contentions actcally do proscribe the various activities. We do not, however, reargue the preemption issue; we merely repeat here that all ten contentions should be decided in LILCO's favor because (1) the state laws invade the preempted field of nuclear safety regulation and (2) any state law that is ap-f plied specifically and willfully so as to handicap an emergency plan " stands as i an obstacle to the accomplishment of the full purposes and objectives of Con-i gress." For those of the ten contentions that address functions that the
!- Board decides are necessary to satisfy NRC regulations (LILCO takes these to l
l be Contentions 5-81/), the state laws are preempted because there is an l
l 1/- Contentions 7 and 8, which deal with the ingestion exposure pathway j and with recovery and reentry, are a special case, since, while they are re-(footnote continued)
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- l. WHO SHOULD1PREVAll-
- ON EACH CONTENTION AND WHY.-
The legal-- authority contentions:are based on two ideas that are. utterly--
untrue. . The first.is thit one has' to_ have governmentL permission to help '(in-:
-deed,- to advise) people in~ 'an emergency. In the Intervenors' worldview, .the-Good Samaritan would be pushedfup against a wall and ordered to produce his papers, ' or perhaps cited for practicing medicine witho'ut a license. 'The~ l n'-
-tervenors-have the issue of legal authority backward; the question 'is not who; has authority to help the public, but rather what authority permits state _and_
local ' governments to refuse to.
The second wrong idea behind Contentions 1-10 is that LILCO is
" usurping" the functions of the state. Obvious!y Intervenors are offended by the idea that a' private party _would presume to do what they. ordinarily would do. But LILCO is not competing with government offi'cials. Traffic guides are a good example: what LILCO proposes to do is direct 2/ traffic until the police arrive; that idea is in the Plan, in the procedures, and even--
(footnote continued) quired to be covered by the plan under 10 C.F.R. S 50.47(b)(10)' and (13),
as to these subjects LILCO's " realism" argument has especial force. Given the amount of time available after an accident to deal with ingestion pathway l concerns, it is hard to credit any suggestion that lack of " legal authority"
. would prevent protective actions from being taken.
l 2/ .LlLCO prefers to say " guide" or " facilitate" traffic because LERO will ilot have the means to compel (" direct") anyone to do anything, nor will it try. . But since " direct" is the more common term, and since how one 'charac-terizes the activities of traffic guides makes no difference whatsoever as to the legality of those activities, we will-talk'about " directing" traffic in this brief.
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- s, in the name of the Plan -- the Plan .was called a " transition" plan in part be-cause it is intended to fill the gap before th'e authorities became' involved.3_/ -
In every respect the Plan expressly provides for the subordination of LERO personnel to State and County authority. The only respect in which' ~
.LILCO has not bowed to' their authority is its unwillingness to accept the -
State and County decision that emergency planning should not be done so that Shoreham may not operate. This decision by the State and County gov-ernments constitutes an attempt to regulate nuclear. power ~and is, as we have argued, preempted.
Both in their answer to LILCO's motion for summary disposition 4/ and in their recent pleadings to the Supreme Court of New' York,5/,Intervenors New York State 'and Suffolk County have for all practica; purposes abandoned the position stated in Contentions 1-10, which is that certain New York stat-utes and ordinances prohibit certain measures contemplated under the LILCO Transition Plan. Instead, they now rely primarily on an entirely new theory that these same actions are an exercise of the " police power" such as only a government can do and, moreover, not authorized by LlLCO's corporate' char-ter.
3/ See LILCO's Memorandum of Service of Supplemental Emergency Planning Information, May 26, 1983, at 11 n.8.
4/ Opposition of Suffolk County and the State of New York to LILCO's Mo-tion for Summary Disposition of Contentions 1-10 (the " Legal Authority" Is-sues), Sept. 24, 1984.
l l S/ See Plaintiffs' Joint Brief in Opposition to LILCO's Motion to Dismiss and in Support of Plaintiffs' Cross Motion for Summary Judgment, Sept. '11, 1984, in Cuomo v. LILCO, Consol. Index No. 84-4615 (N.Y. Sup. Ct., filed Ma r. 8, 1984) .
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We will first address the contentions, which are what are at issue in this. proceeding, .in part A below and then address in part B .the new-issues ~
of police power and corporate charter.
A. Contention-by-Contention Analysis
.The following tracks closely what LILCO said in Section IV of LILCO's Motion for Summary Disposition of Contentions 1-10 (the " Legal Authority" is-sues), dated August 6,.1984, plus what was said in LlLCO's Memorandum of Law in Support of Motion to Dismiss, Aug. 14, 1984, and Brief in Support of Motion to Dismiss, Nov. 15, 1984, filed in Cuomo v. LILCO.
I t,2 . Contentions 1 and 2: Directing Traffic and Blocking Lanes, etc. ,
in Contention 1 Suffolk County objects to' LERO's " directing traffic" to
" ensure that evacuees follow the evacuation routes identified and prescribed by LlLCO in the Plan and to ' discourage
- noncompliance with those routes."
Contention 2 says that LILCO employees would " implement various traffic con-trol measures" such as " roadblocks, prescribed turn movements, chan-nelization treatment, one-way roads, and blocking lanes on the Long Island Expressway."
The record shows that LERO traffic guides will be stationed at key in-tersections to facilitate the movement of traffic by using hand and arm signals and thus to discourage travel in certain directions, though traffic will not be prohibited from traveling in particular directions.s/ Tr. 2,344 (Lieberman).
g/ Traffic guides will not force anyone to turn in a particular direction should they choose not to do so. LILCO Transition Plan, Appendix A, IV-8; Cordaro et al. (Contention 65), ff. Tr. 2,337, at 76; Cordaro et al. (Conten-tion 23.H), ff. Tr. 2,337, at 21-22; Tr. 2625 (Lieberman). .
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a Cones, hand signals, and arm movements will be used to encourage the move-ment of traffic out of the EPZ as q'uickly as possible, Cordaro et al. (Conten-tion 65), ff. Tr. 2,337, at 61-62, resulting' in an evacuation time estimate of 4 hours4.62963e-5 days <br />0.00111 hours <br />6.613757e-6 weeks <br />1.522e-6 months <br /> 55 minutes for evacuation of. the entire IO-mile EPZ in summer in good weather, six hours in inclement winter weather. .id. , at 62, Att. 6 (Cases 12 and 19 respectively). Only one two-way road is converted to a one-way road under the LILCO Plan. LILCO -Transition = Plan,7/ Appendix A, Table Xill.
LlLCO is entitled to prevail on Contentions 1 and 2 on three grounds, apart from federal preemption.-
- a. LERO's activities would no* violate State Law First, LERO's proposed activities would not violate state law. Conten-tion 1 relies, first, on N.Y. Veh. t, Traf. Law SS 1102. As the attachments to the NRC Staff's answer to LILCO's summary disposition motion show, this statute provides as follows:
No person shall fail or refuse to comply with any lawful order or direction of any police officer or flagperson or other person duly amr.owered to regu-late traffic.
The LILCO Plan expressly provides that LERO traffic guides are to turn over their posts to police officers if those officers respond to an emergency at Shoreham, and so S 1102 is inapposite.
Section 1602 authorizes police officers to close streets or divert traffic, direct traffic, etc. As with S 1102, S 1602 does not by its terms apply to anything LILCO proposes to do under the Transition Plan. Likewise, N.Y.
7/ The Plan (Rev. 3) is LILCO Ex. 80. It will be cited hereinafter as sim-ply " Plan."
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Transp. Corp. Law 5 30 (McKinney), which authorizes "special policemen" appointed by police departments to act as special patrolmen in connection with' systems-operated by corporations of signaling to a. central office for police as-sistance, does not -apply. .
Finally, Contention' 1 cites N.Y. Penal Law SS 190.25(3),195.05, and 240.20(5) (McKinney). New York Penal Law S 195.05 plainly has no applica-tion to any of the facts of this case. It provides:
A person is guilty of obstructing governmental administration when he intentionally obstructs, im-pairs or perverts the administration of. law or other governmental function or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of any independently un-lawful act.
Obstructing governmental administration is a class A misdemeanor.
It is clear from the language of the section, as well as the cases decided under it, that the statute does not apply here.@/
For cne thing, S 195.05 does not apply unless there is actual-
" obstruction" by means of intimidation, physical force, physical interference, or an independently unlawful act. See, e.g. , Matter of Tammy M. ,108 Misc.
2d 376, 437 N.Y.S.2d 565 (1981); People v. Offen, 96 Mis. 2'd 147, 408 N.Y.S.2d 914 (1978) People v. Longo, 71 Misc. 2d 385, 336 N.Y.S.2d 85 (1972). LILCO does not propose to supplant or interfere with any 8/ If the statute were ambiguous as to its coverage, it would have to be strictly construed because it is a criminal statute. Thus, unless the alleged conduct fell squarely within its proscription, there would be no finding of a violation.
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governmental activity lin an emergency by any means, much lessLby physical or unlawful.means. The LNew York Court of.' Appeal's, ~ for ex' ample, has _ held .
= that. sending a message by citizens band ~ radio as to the location of a: highway radar. checkpoint does not' violate S 195.05. - People v. Case, ' 42 N . Y. = 2d ~ 98, .
396 N.Y.S.2d 841, 365 N.E.2d 872 (1977). A ' fortiori the' provisions of the 1
LILCO Transition Plan ' are .not unlawful. Unlike the facts in Case. LlLCO ~will
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take no steps that will make it easier for someone else to evade the law; in-deed, LILCO will make it easier .for the' public to,be protected in accorpance with Article 2-B of N.Y. Exec. Law. - LILCO: proposes ~ to notify ~ the public, recommend protective actions,- and use arm and hand signals to facilitate traf .
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fic flow in an emergency, and, like the facts in Case,- does not propose to in-terfere physically or otherwise with government employees.
For another thing, S 195.05 is not violated if the conduct " obstructs" ~
only unlawful government actions. See, e.g., . People v. Ailey, c76 Misc. - 2d -
589, 350 N.Y.S.2d 981 (1974); People v. Papp, 19 Misc. 2d 331,185-N.Y.S.2d 907 (1959); People v. Richter, 265 A.D. 767, 40 N.Y.S.2d 751,
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aff'd, 291 N.Y.161, 51 N.E.2d 690 (1943). A . total failure by lntervenors to respond in an actual emergency would be unlawful -- contrary to Article 2-B.
LILCO would be acting lawfully if it took steps to compensate for that kind of unlawful government conduct.
Likewise, S 190.25(3) defines the crime of impersonating a police officer
(" criminal impersonation in the second degree") and requires, first, that the offender pretend to be a public servant and, second, that he act with crimi-nal intent (" acts with intent to induce another to submit to such pretended authority, to solicit funds or to otherwise cause another to act in reliance -
upon that pretense"). Neither is true of LERO.
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Section 240.20 proscribes " disorderly conduct" and requires intent to cause public ~ inconvenience, annoyance or alarm, or recklessly creating a risk-th e reof. " It obviously does' not apply to LERO's efforts to protect the public in an emergency.
Contention 2 cites the same statutes as Contention 1~, as well as N.Y.
Veh. E, Traf. Law S 1114 (McKinney). Section 1114 prohibits unauthorized signs,- signals,- markings, or devices that attempt to direct' or regulate the
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movement of traffic. Presumably the Intervenors believe this prohibits LERO But the intent of the statute is clearly to prevent "public nui-
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traffic cones.
sances," for example, unauthorized signs that hide stoplights from view. It cannot reasonably be construed to prohibit devices to facilitate evacuation in a communitywide disaster.
In short, the New York statutes alleged in the contentions simply authorize police and others to perform certain functions and require obedi-ence in ordinary circumstances to official traffic control devices. They do not prohibit LERO's proposed actions. And any interpretation of those stat-utes that would by implication prohibit LERO's actions in an emergency if po-lice were unavailable would be contrary to the overriding policy of Article 2-B. See, e.g. , N.Y. Exec. Law, Art. 2-B, SS 20, 2 -a.9/ 9 9/ Indeed, it is not at all uncommon to see motorists or bystanders direct traffic around a highway accident until police arrive. In addition, utility re-pair crews routinely direct traffic around downed lines at least until police .
l a rrive. This kind of activity is directly comparable to the activities undar l the LILCO Transition Plan, though, unlike motorists, LERO traffic guides have been trained to assist traffic flow.
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- b. The Sta_te and County would respond Second, the evidence supports a finding that the State and County would in fact respond in a real emergency.10/ For _one thing, the Governor of the State has stated publicly that the State-and. County would respond.
. LILCO's Findings, at 313-14 5 680.
But there is other evidence as well. LILCO's consultants testified that in communitywide disasters an " emergency consensus" prevails 'under which the protection of threatened people is the overwhelming value.- See, e.g.,
Tr. 870-71 (Dynes) . Other LILCO witnesses, who have been dealing with po-litical realities on Long Island for months and years, gave their opinions that State and County personnel would respond. Tr.10,472-73 (Clawson),
10,518- lE -(Weismantle) . The County's school administrator witnesses-indi-cated they would plan, or at least reconsider their present positions, if
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Shoreham were to operate. LILCO Findings at 68 1 141. The same witnesses fully supported LILCO's testimony that their only concern in a real emergency would be to protect the schoolchildren.
Perhaps most telling, despite the appearance of scores of witnesses for Suffolk County and New York State, no witness ever said the State or County i
would not in fact respond in a real emergency. Indeed, when asked directly during discovery, Suffolk County would not say what it would do in a real emergency, saying that "if events take place in the future, the County gov-ernment will evaluate the events and take the action (s) which are agreed to be appropriate in light of the events which in fact occur." Suffolk County's Responses to LlLCO's Informal Discovery Requests of June 29, 1983 and July I
g/ This argument applies to all 10 contentions except Contention 3.
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who broached the subject evaded it:
The answer was well, if there is a problem a -
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[LERO] ' security officer will simply call the Suffolk Cou nty - Police. Well, No.1; 'there is no assurance.
yet that we will be responding. - But even if -we do,:
what does he do with this disturbance until we get there? . . . .
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ladeed, the intervenors' have fought against having
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Tr.13,326 (Cosgrove).
any evidence on this subject in_ the -record, thinking that LILCO's " burden of proof" would then be an insurmountable obstacle to a license.
Finally, there is an additional line of evidence that', while it may be cir .
cumstantial, LILCO believes is dispositive. _ That ' evidence consists of. the po--
sition of the intervenors that their purpose is to protect the public health
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and safety. The intervenors have no motive for opposing emergency plan -
ning, or for pretending they would not respond to a real emergency, except to prevent Shoreham from operating. It follows that there would be no motive ,
not to respond to a real emergency at an operating Shoreham, and the~ Inter-veno.as' desire to protect the public compels the conclusion that they wouid both plan and respond if an operating license were granted.
This point is made nowhere so well as in the affidavits attached to in-tervenors' answer to LILCO's motion for summary disposition, where the in-tervenors praise the usefulness of some of the very measures they are trying to prohibit. For example, in the " Affidavit of Richard C. Roberts," dated September 25, 1984, in paragraph 26, inspector Roberts says the following:
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LILCO has suggested that-the. evacuation time esti -
mates for an uncontrolled evacuation ~ would not be al-~
tered if there are no trailblazer signs. I disagree.
Based on my experience and knowledge of the roads in Suffolk County, I believe that signs providing clear guidance ~in an evacuation scenario. would be
' helpful to drivers attempting to escape from the EPZ.
If there.were no trailblazer sisns, evacuation times would increase.
Affidavit of Richard C. Roberts, September 25,- 1984, at 12 H 26.
There is only one piece of evidence contrary to LILCO's position that State and County officials would in fact respond, and that is Suffolk County Resolution 111-1983. The intervenors now argue that this Resolution makes it unlawful for police and others to protect citizens during a Shoreham emergen-cy. LILCO had always read the words in the Resolution forbidding County employees to " test or implement" an emergency plan to refer to planning, not response; that is, to prohibit writing procedures, training, and cooperating with LILCO in advance of an emergency. However, ~ if the Board chooses to '
accept the broader interpretationH/ now proffered by the Intervenors,H/
then the short answer is that the Resolution does not bind the Governor, who has authority under New York Executive Law Article 2-B, to suspend any statute, local law, ordinance. etc. in an emergency. N.Y. Exec. Law S 29-a (McKinney 1982).M/
11/ Any law that forbade police and others to help people in an emergency would undoubtedly be void as against public policy.
M/ Since the Intervenors' proposed findings, in which this interpretation was put forth, were submitted under the name of the Suffolk County Attor-ney, it must be assumed that an official opinion from the County as to the meaning of the Resolution would be consistent with those findings.
M/ LILCO's testimony that the Resolution would not in fact inhibit Suffolk County employees was stricken. However, one LILCO witness gave a realistic (footnote continued) 1 b -
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> So the evidence is that State and County officials would ' respond. And" 4 th'at response is bound-tolincidde either (1)L providing policemen to facilitate
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the movement.-of traffic during an{ evacuation or .(2) conferring authority on?
LERO to do'~ so.
The LILCO; Transition Plan provides for.the incorporation by-its traffic guides of any ' police assistance ' offered. Plan,- OPIP 3.6.'3, p ' 11 of :
.~46 (Rev. 3).1 Traffic. guides-~are trained to explain to the police the- situation _
_ existing at the. time of an emergency,' to -tu'rn over pos'ts for . facilitating traffic . flow. to the police, and to remain 'if necessary as .' assistants in coordinating th'e evacuation' effort. Id. ; Babb et al. _ (Training), ff. .Tr.
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5,'. Attschment 20, -Module 12.
- c. NRC. regulatbns do not require traffic control '
1 Third, NUREG-0654 does not require any particular type of traffic control scheme, . but .only that a reasonable, accurate evacuation time ' estimate be given in the offsite plan to meet the regulatory basis of dose. minimization.
I NU REG-0654 ll .J.8, ll .J.10.1. The scheme used in the present t* affic plan I
for Shoreham could be modified to eliminate traffic guides entirely, with 'a.
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- (footnote continued) i view of how people behave in emergencies. The Superintendent of the-i Shoreham-Wading River School District, asked if he would let teachers who.
! aren't certified to drive school buses drive them anyway in an emergency, ,
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i know, if you are talking -- if an emergency hap-pened tomorrow -- let's forget a nuclear emergency 1 or some other kind of' emergency, and we had to 4- move the kids, I would let anybody who could drive drive the bus.
Tr. 9547 (Doremus)~ .
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.h resulting increase in evacuation ' time ' estimate's of'1_1/2 hours. Tr. 2,663 (Lieberman); Cordaro et al. (Contention 65), ff. Tr. 2,337, Att._6 (Case 24). Even this scheme, called the " uncontrolled" case, produce's evacuation time estimates that are reasonable when compared to time estimates at other
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n'uclear power plant sites _ 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 suggested in the contentions, that the Plan ~cannot be implemented. The Plan can _ simply be modified to delete the actions describe'd in Contentions 1 and 2 and to substi-tute the " uncontrolled" evacuation time estimates for making protective action recommendations.
Intervenors have argued that traffic control is required as a matter of -
law. This is incorrect. Whether it is required or not is a que'stion of fact.
For example, in one case it was held that traffic control was not necessary in an area of low population and good roads. Kansas Gas & Elec. Co. _ (Wolf Creek Generating Station, Unit No.1), ASLBP Doc. No. 81-453-03, slip op.
at 31, 81, 82 (July 2,1984) . Other cases have found traffic control essen-tial, or at least desirable, for particular areas. Pennsylvania Power & Light Co. (Susquehanna Steam Elec. Station, Units 1 & 2), LBP-82-30,15 NRC 771, 796 (1982). The point is that there is a factual record for Shoreham that shows that an evacuation can be carried out without traffic guides.
This is not to say that an " uncontrolled" evacuation would be desirable, compared to a " controlled" one. Indeed, an uncontrolled evacuation would take about 1 1/2 hours longer. And for the very few postulated accidents where 1 1/2 hours would change a protective action recommendation from evacuation to sheltering, a controlled evacuation might provide greater dose I
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cials 'seem . dead set _against it.
'3. Contention ~ 3: Traffic- Signs : .
In Contention 3 Intervenors. assert that .it'is-illegal for LlLCO to post .
signs to mark evacuation. routes. The recc.d ;shows that LILCO's traffic: plan '
re. lies on " trail blazer" signs _to mark routes out of.the EPZ. 'Cordaro et al.,
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12-13. These signs are to be located along every major road in the EPZ,- 1,
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. and ~will contain .the standar'd ' evacuation route' logo' used_-for civil defense purposes throughout the country. Tr. -2,539 (Lieberman),; 2,614-19 :
Unlike the other fu'nctions contested..by Conten-
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tions 1-10, the'se signs would be posted in advance of. a potential emergency; LILCO is entitled to prevail 'on _this contention'. ~ First, postins the signs will not violate State law. New York Vehicle and Traffic Law $ 1114 prohibits only unofficial signs that control, direct, or_ regulate the movement of traffic. The " trail blazer" signs do 'not control, direct, or regulate traf--
fic; they merely mark evacuation routes, and any member of the public' is free to ignore them. They are not essentially different from providing the public with maps of the evacuation routes, which LILCO is 'also doing. By marking 1
l pre-planned evacuation routes the signs would facilitate an emergency.evacu-
, ation and enhance the protection of the public health and safety, thus .
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serving the policy of Article 2-B of making emergency response effective.
They cannot be deemed within the intended proscription of the New York Ve-l hicle and Traffic Law. Nor are they proscribed by N.Y. Penal Law .
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. 99 190.25(3), :195.05,^ :or 240.20(5),;which have ?already been ' addressed-a'bove. -
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Second,ithe record shows ~that th'eiLILCO Plan would. be adequate even' with'out the trail _bl' azar signs. The evacuation time estimates for an
- uncontrolled evacuation would not be altered iff traffic signs .were not posted -
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along . evacuation routes. .Cordaro et al. (Contention 65)? ff. .Tr.12,337, at-69, 'Att. 6 (compare ' Case 24 (uncontrolled case assuming- route compliance):
with' Case 34 (u~ncontrolled. case _ assuming 50*or noncompliance with l route" as -
signments)) .
- 4. Contention 4: Towing The LILCO Plan provides for LERO " road crews". to remove stalled cars and other obstacles from roadways using LILCO tow trucks'and line trucks:
Plan, OPIP 3.6.3, p.12: Cordaro et al. (Contention 66), ff. Tr. 6,6SS, Lat 6-
- 7. LlLCO should prevail on this contention.
First, the plan to remove disabled vehicles does not violate state-law.
Contention 4 cites the New York " joy-riding" statute, N.Y. Penal Law S 165.05. But that statute is clearly inapplicable. LILCO would not' be
" joy-riding" and would not be carting vehicles away or impounding them dur.-
ing an evacuation. Stalled vehicles and obstacles would simply be pulled or pushed to .the side of the road to clear the way.
Second, the LILCO Plan is adequate under 10 C.F.R. S50.47(a)(1) and 4
! (c) because during an actual emergency the State and County would be '
i particips ting in an emergency response. Their involvement would remove any legal bar to removing disabled cars from the evacuation route. Therefore,:
the actions contemplated by the Plan would not be illegal in a true emergency.
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Third, NRC regulations'do not require that measures be prov'ided for towing stalled cars. There are no specific guidelines in NUREG-0654 for judging whether-a specific number 'of. tow trucks is adequate. Tr. _12,803 (Baldwin),12,815 (Kowieski). .
S r,6. Contentions 5 and 6: _ Activating Sirens,-
Making Decisions About Protective Action Recommendations, and Broadcasting Recom-mendations to the -Public in Contentions 5-8, the ones that go to the heart of emergency plan-ning, the Intervenors allege that "N.Y. Exec. Law S 20 et seq. (McKinney)"
prohibits the various LERO activities. This refers to Article 2-B, and it'is an astonisl i ig claim. Article 2-B sets forth the policy of the State of New York that emergency planning for disasters, including potential radiological accidents at nuclear power plants, "shall at all times be the most effective that current circumstances and existing resources allow." N.Y. Exec. Law, Art. 2-B, S 2O(1)(e) . Indeed, Article 2-B refutes all the Intervenors' argu-ments that New York law forbids the performance of the contested functions.
Article 2-B makes it the policy of the State for governments at all levels, and private emergency service organizations, to plan for and respond to ra-diological emergencies. N.Y. Exec. Law, Art. 2-B, S 2O(1) . LILCO has proposed to perform various functions to enhance the protection of the public health and safety. These functions would be performed only in the limited circumstance of an actual radiological emergency at Shoreham. LILCO will n_ot in any way attempt to supplant police or any other government ser vants from performing governmental functions in an emergency. Indeed, the LILCO Plan contains provisions fc,r incorporating, and coordinating with, emergency re-sponses by governments at all levels, including the State and the County.
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~ l LILCO's proposals--- in stark contrast to the Intervenors'! desire to prevent
~
- any emergency planning -- are ' designed to pursue!to.the fullest the. goals of-
. Article 2-B.
Contention 5 asserts that ' LiLCO 'is prohibited _ by~ law from " activating
-- sirens" to alert the public that an emergency has occurred, and from "di-rect [ing);the broadcast and contents 'of emergency broadcast system ("EBS")
messages to the public"; Contention' 6 argues that LILCO is " prohibited.by law from making decisions on protective action recommendations." If a compa-ny owned a chemical plant and suffered an explosion, for example, LlLCO submits .it'would not be illegal - indeed there might be a legal duty ---- to as-sess the damage, warn the public that a toxic chemical cloud was coming, and advise them what to do. That is all LILCO proposes to do.
These claims are implausible on their face, since they attempt to pro-hibit LILCO from warning people in danger. Basicall9 what LILCO plans to do' is to give information and advice; even the traffic guides perform essen-tially this function.
- a. Activating Sirens The prompt notification system is the primary mechanism to alart the general public of a radiological emergency; the mainstay of this system in the LILCO Transition Plan, as in most 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. Plan, at 3.3-4.14/ Contention 5 alleges that it is illegal for LERO to activate the l
1_4/ The sirens are activated using the encoder at the EOC. Plan, OPIP ,
3.3.4, p. 2 of 7. In the event that the local EOC is not activated and the ini-i (footnote continued) l l
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hrens.: The: statutes' cited :in fsupport 'of thisiassertion; are 4rticle; 2-B and :'
,- iNew3ork J Penal' Law $$$190.25(3); and I195.05J L As noted 'above. .there iis nothing' in Articlk 2-B' thAtl can possibly!supp
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port 'the' conclusion l th'at the public'should n'ot be n'otifiedi: by anyone:who can' >
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do it effectively,-:in a radiological. emergency; ?lndeed, Article ~ 2-B itself, .
S 22(3)(b),_23(7)(b), and 28(2)(a), provides thdt the:public is te be' notified -
~
in the event of. a radiological emergency. Underx$ 28(2):the notification may!
s .s ., . .
come from'a private "eme'rgency) services organization": such asTLERO. ? Even .
~ without that provisio'n,: howeverl there plainly is;nothing1in . Article 2-B' thati would p'rohibit LERO from making as initial notification to' the public 'withith'e -
- sirens and the EBS system, even if _the State and. County wished to'make'
~
their own notifications; Moreover, _ it is~ clear as a matter of fact that the State and '!ocal govern---
ments would welcome, . in a real emergency,f the use of the _ sirens unless there were at that time a- better way to-alert the public~.15/
(footnote continued) tial notification from Shoreham is of a General Emergency with protective .
action recommendations, the Customer Service Supervisor, at the direction of the Director of Local Response, instructs _ the Shoreham Emergency. Director to activate the siren system from the Shoreham control room. Plan,;at 3.3-5 and OPIP 3.3.4, p. 7. In addition, a backup encoder is located at the Brookhaven Substation. Plan, OPlP 3.3.4, pp. 2-3 of 7. If the Customer -
Service Operator is unable to reach the Director of. Local Response within.'10 '
l minutes of receiving notification from Shoreham of a General emergency .with a
! recommendation for protective action, the Customer Service Supervisor i notifies the Shoreham- Emergency Director and requests that the control room 4 activate the sirens. Plan, OPIP 3.3.4, p. 3 of 7.
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15/ The fact that New York will facilitate a response in an actual emergency-removes any legal obstacle. Under New York Exec. Law, Art. 2-B, S a,.
the Governor is authorized to suspend any law that would impede' an emergen-cy response. There can be no doubt that the Governor.would not impede siren activation in an emergency requiring protective actions.
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b'. Notifying the Public by EBS The sirens, of course, are simply the means by which the public is alerted to tune into the EBS station for further information. Contention 5' also asserts _that' LILCO is prohibited by state law from " directing the broad-
~
cast an'd 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 LlLCO_ Plan, OPIP 3.8.2, 'Att. '4, and which have been explored at length in this proceed-ing. See, e.g. , 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-cast should be made and initiate the' broadcast. Plan, OPIP 3.3.4,~ p. 2 of 7. _
lt is the Federal Communication Comm:ssion, not the states or localities, that regulates broadcasts of information over the radio. FCC regulations -
permit an EBS system to be set up by ar.y individual, 47 C.F.R. S73.913(b),
and provide that station managers, without government officials' prior ap-proval or notification, may activate any EBS system that has been set up. 47 C. F. R. S73.935(a) . Thus, it is clear that under federal law the allegations in Contention 5 about EBS broadcasts are wrong, and LILCO is entitled to'a de-cision in its favor.
Second, the contention is wrong because government officials would in fact respond to an emergency at Shoreham. Cordaro and Weismantle (State
. Emergency Plan), ff. Tr.13,899, at 7. The LILCO Plan provides that the Director of Local Response will work in conjunction with government officials in responding to an emergency, Plan, 3.1-1, and therefore EBS messages I
would be broadcast with the cooperation of the government officials.
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- gency at Shoreham.- '
Lc. $taking Decisions. -
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-Contention'_6:alleg'es that un' der st' ate: law it is illeg'al for LiLCO to'-
[' 9 "make decisions and official recommendations- to th'eipublicLas (to the approprip h' ite' actions ' necessary to protect the-public heal'th and:s'afety." J Urider thei LILCO Plan, the Director of Local l Ressn'se, 'a LILCO. employee,,is -
I responsible for' decisionmaking; Plan, at 3.1_-1. LERO will make recommenda-s -
[ _ tions for protective actions by the public within- the'1'0-mile EPZ 'in' the event' 1 1
of a serious radiological emergency, f as required b'y federal. regulations; _in a <
l serious emergency,'LERO might recommend evacuation of all or part of the ,
10-mile EPZ.- j d_.,
,. These recommendations are precisely that -- recommendations'.- They -
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are not binding upon any member of the' public. LILCO intends that they.
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{ should be followed, to be sure, and anticipates that they will be, but so does
!- anyone who attempts to influence public action. Neither LILCO nor LERO c
i would attempt to compel any member of the public either to follow its recom-i .
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- mendations for' protective actions or~ to comply with any of the _ advice in .
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!' LERO's messages to the public.
i Contention 6 cites - Article 2-B, and, again, New ork.. Penal Law - ,
! SS 190.25(3) and ~195.05 (McKinney), as alleged support. ' As is the case with i . -
the other. contentions, these statutes can by no stretch of the imagination be l- construed to prevent private decisionmaking exercised only until such time as 1.
r-the State and County elect to step in. Article 2-B recognizes that the !
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[ licensed ; operator's offthejiant[must be' relied:upon to! determine initiallyf % ,
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/whether; a'_ radiological emergency condition exists _'and;how= severe 'it is. : Sec -
O jion :29 2cTofi Article 2 1T B prov' ides lthat th'el New' ork DPC: -
=c f(b) . Eshall.obtain from:the licensee,! United S'tates nucleart regulatory: commi_s_sion-required' high range :
radiation, temperature and pressure levels insthei -
- containment' building's and in--the containment build- ' ,
iing vents of nuclear electric generating facilities -lo '
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. cated in the state of ~ New' York): and
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.(c) ,- shalllobtain, subject to' approval. of_' th_e . United ME States nuclear regulatory; commission,- any ireactors data provided by the -licens~ee 'to the; United States =
nuclear regulatory commission,.. which the' disaster _
-preparedness commission ;dotermines',i as a result of J the report issued pursuant 4to section twenty-nine-d-of this article, sto be .a reliable indicator. of a possible - ,
. radiological accident. "
N.Y. Exec. Law, . Art. 2-B, S 29-c(1)(b), - (c)j (emph' asis a'd ded) . [As for they
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- laws prohibiting obstruction of governmental functions and impersonating a- g public servant, they -clearly do not' apply, and it 'is frivolous toi srgue that . hY they do. h
..34
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The County's assertion that- LILCO cannot legally "make decisions"16/ - W regarding protective action recommendations is in reality just another way of ,
saying that State and County participation is essential for the grant of an op-erating license. This is the same issue raised by Suffolk County in 'its motion to terminate the proceeding because the County Legislature had decided not 16/ Anyone can lawfully "make decisions" about th'e public health and safety. We will make one in this footnote: smoking c.;garettes-is bad for your health. The issue is how we act on that decision. If we hire a radio station to warn people about smoking and urge them to stop, we have not exercised any- " police power." On the other hand, if we enter tobacco stores and con- ,
fiscate the stock,- or take people's cigarettes away from them and lock them in ,
- l. closets to keep them ifrom smoking, ~ then we may fairly be accused of'trying to ,
L- exercise police powers. The former is analogous to what LILCO is doing for !
. emergency planning, not the latter. t l- 4 l
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j to adopt anyiemergencyf plan. !The Licensing ; Board, ruled:then,fand this :
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Board pould rule' nowiithat thel unwillingness of a locality or, a state to' par-g~ ;k , g%3Q x
" Mticipate in= emergency. planningMoes !not', as a . matter of law, prohibit' a.
.e in nuclearJ power plant;f rom l operating. 'Long Island Lighting Co. (Shoreham '
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1H ' protective action decision-m'aking process if an emergency were actually to iLY w ..
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occurk The LILCO- Plan providesifo. .r the incorporation 'of'"the County 1 p '- 4 I ExecutNe or his ' designated ' representative in responding to an'. emergency,
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=y,s t e should thy off2clal choose to participate. Pla n ; . at ' 3.1 -.1. Contentions 5 and
- . 6 s\' \
- continue the fiction thattin a real . emergency .the ' State and County would g.
l not participate in a. response,- even though the record shows the-contrary.
4.
3-Cordaro and Weismantle, .ff. Tr.13,899;. at 7.
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! 7t,8. AC.bnteritions 7 and 8: Making Recommenda-(: - ..*'~{'-
N tion's for the -Ingestion Exposure Pathway
'r "and for Recovery and Reentry i
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x } Contention 7 alleges that New York State law prohibits. LILCO from e i '
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, making decisions and recommendations to the public about protective actions
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G. - , for the ingestion exposure pathway; Contention 8 alleges that LILCO is pro-hibited from making decisions and recommendations about' recovery and reen-try.
f The LILCO Plan provides that LERO will make protective action recom-mendations for the 50-mile ingestion exposure pathway EPZ. Plan, at 3.6-8 r, l
- OPIP 3.6.6, Section 5.4. The purpose of these recommendations is to prevent-possible' ingestion of contaminated food. The recommendations will be h
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. formulted by . knowledgeable ' experts. The Radiation . Health Coordinator is responsible for. communicating recommended protective actions to farms, food.-
- processors, and other food chain establishments. Plan, . at 3.6-8. The Coordinator of Public Information 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 consump-tion of certain foodstuffs,~ washing or scrubbing fruit and vegetables,' and other precautions. See Cordaro et al. (Ingestion ' Pathway), ff. Tr.13,563.
.In addition, the recommendations would identify _ areas of concern and offer to
-compensate anyone with economic losses due to food being withheld from the ma'r ket. Plan, OPIP 3.6.6, Section 5.4.3.1; Tr.13,679-92 (Cordaro, Daverio, Watts) .
The Plan also provides that short-term and long-term recovery and re-entry operations will be performed by LILCO employees. See Plan, OPIP 3.10.1. The Recovery Action Committee (1) coordinates area radiological surveys, (2) evaluates data, (3) identifies areas to be reentered, (4) mobi-lizes required resources, manpower, and equipment for reentry, (5) determines that all utilities are functioning, that food supplies are ade-quate, and that evacuation effects on public health are mitigated, (6) partici-pates with LILCO in preparing and issuing announcements specifying the areas that may be reentered, and (7) ensures establishment of an organiza-tion to estimate population exposure on a continuous basis. Pian, at 3.10-1 r, 3.10-2.17/
17/ Two states are involved in the 50-mile ingestion exposure pathway EPZ for Shoreham: New York State and Connecticut. See, e.g. , Cordaro et al.
(footnote continued)
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1 Contentions 7 and 8 cite, again, Article 2-B' and N.Y. . Penal Law
- 99 190.25(3) and .195.05 (McKinney). Again they are inapplicable, for the reasons already' given, or (in the case of ' Article 2-B) work dire'ctly contrary to the Intervenors' assertions. Essentially LILCO ' proposes to
- advise lthe -
public on proper health physics practices and to offer to buy contaminated food. There is nothing illegal about that.
Protective action recommendations for the 50-mile ingestion ' exposure -
pathway need not be made immediately 'following the declaration of an 'emer-gency. Plan, OPIP 3.6.6, p.1 of 50; see NUREG-0396, at 13-14. Even if the Governor or County Executive was not involved in the immediate after-math of the accident, it-is inconceivable that they would not get involved in the longer-term problem of post-accident precaut' ions and recovery.
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 im-plemented.
, As to Contention 8, it is clear that, following any major emergency at a nuclear power plant, many governmental entities would step forward to deter-mine what actions sHould be taken to reenter the affected area and recover it if necessary. Tr. 10,509-10 (Weismantle); Cordaro et al. (Ingestion
-(footnote continued)
(Ingestion Pathway), ff. Tr.13,563, at 7-8. Connecticut has agreed to im-piement protective action recommendations when notified by LILCO of an emergency at Shoreham. Cordaro and Renz (Letter of Connecticut Supple-ment), ff. Tr.13,85S, at Att. 2. Therefore, the only portion of the inges-l tion exposure path'way EPZ that is covered by Contention 7 is the portion within New York State.
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m Path'way), ff. Tr.13,5G3,: at 38-39; Tr.13,702-06 (Daverio, Watts); see also Federal' Radiological Emergency Response , Plan, 49. Fed. . Reg. 3578 (1984).
Even'if recovery. and reentry recommendations from LILCO were illegal under state. law, many "non-utility entities with' the necessary authority" would ini-tiate and-implement recovery and reentry for the area around Shoreham.
~
It-is. unrealistic to assert otherwise.
- 9. . Contention 9: Dispensing Fuel 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 evacuation routes to assist motorists who may run out of fue.. 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. l_d. at 15.
The Contention cites Suffolk County Sanitary Code, Art.12, and Code of the Town of Brookhaven, Chap. 30, Art. X. These references are not specific enough to tell what exactly the Intervenors have in mind. The policy
< behind the County Code is to prevent water pollution, see Sectiens 1201-02, and so the intent of the Code obviously doesn't include preventing emergency planning. Article X of the Brookhaven Code appears to be directed more to-wards safety (that is, measures to prevent explosions of flammable liquids) but is quite clearly not aimed at the situation now before the Board, in any event, it would apply only to the Town of Brookhaven.
Also, the Board should find the LILCO Plan 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 I
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i o _ suggested - by NUREG-0654. - Tr. !12,818 -(Keller)' . Even if fuel'were not dis-
-pensed and cars were assumed. to 'run out of gas', these cars would be~ able to
.. coast'off the: roadway, _ Cordaro et al. (Contention 66),; ff. Tr. 6,685, at 8,
'and thusinot impede' evacuation ' flow. 3 Finally, the government participation expected in a real-emergency.
.would cure any lack of " legal _ authority."
- 10. Contention -10: ' Secu rity -
The County asserts in Contention 10 that LILCO is prohibited by law
~
from ' performing " law enforcement functions" at the EOC, at relocation _ cen-ters, and at -the EPZ perimeter and that LILCO employees will be responsible for " establishing and maintaining security and access control for the EOC, di-recting traffic at tne relocation centers,' and. establishing and maintaining perimeter / access control to evacuated areas." Not even a colorable argument ca, be made to support the contention as _ to the EOC, which is LILCO's own property, and the relocation centers, which are in- Nassau County. All that is left is the traffic guides.
i The record shows the following:
- 1. The EOC is located on LILCO property. Plan, at 4.1-1. The LlLCO Plan does not contemplate that LILCO employees will use threats or force, LILCO employees are assigned to the EOC to identify persons entering l the facility. 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 seeking to enter the EPZ. Plan, Ap-pendix A, at IV-8. The traffic guides will not prohibit anyone from entering L the area. -Id. Individuals will be left to choose for themselves their course of action. M.
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. 3. All relocation centers used for the LILCO plan will .be in Nassau
, Cou'n ty . Cordaro et al. , ff. Tr.14,7_07, at 22.~ LILCO relies upon ths Red
. Cross to provide relocation centers. Id. at 15. LERO workers will rely upon the local police to provide security at relocation centers to the extent it is necessary.18/ Tr. 11,344. (Va rley) . No 'LERO personnel would be relied upon to maintain order at relocation centers. Tr.11,344 (Varley); Tr.
- 12,069 (Mileti).
As preGously noted, New York' State and .iuffolk County would re-spond in a real emergency at Shoreham. This means that County law enforce-ment officials would be available to " maintain control at the EOC" were that necessary and to "rraintain perimeter access control" at the EPZ perimeter.
Consequently, there is reasonable assurance that the LILCO Plan .will be im-plemented in this regard.
Also, the LERO workers called upon to perform the activities addressed -
in Contention 10 will not be " performing law enforcement functions" or requiring anyone to do anything, and they will not be using force to " main-tain security." Cordaro et al. (Credibility), ff. Tr.10,396, at 101-04: Tr.
11,344 (Varley), 12,068-69 (Mileti) . They will be assigned to the EOC, relocation centers, and the EPZ perimeter to assist people. They will dis-courage people from entering the EPZ through the use of hand and arm move-ments 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 identification of persons at the EOC and channelling traffic and the stream of people who may be arriving at relocation centers for assistance, l ,1_8/ The Nassau County Executive has agreed to provide police support.
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Cordaro et ap (Credibility), ff. Tr.10,396,- at 101-04, dhe EOC, the perimeter, or- relocation centers, LERO workers will call the po-
' lice. Tr. 11,344 (Varley). And since all relocation centers relied upon by.-
the Red Cross to respond to an emergency.'at Shoreham will be beyond Suffolk -
County, Suffolk County police will 'not be called .to maintain ' order at' reloca-
. tion centers.
Finally,. 'the functions challenged in Contention D10. are not necessary ;to
. meet NRC regulations.
B. The " Police Power" and Corporate Charter issues -
Intervenors now argue that LILCO'.is " usurp [ing) the b'asic police pow-ers of the state and local governments" (rather than violating certain stat-utes) under the LILCO Transition Plan, and therefore 'that the Plan is illegal as a matter of state law. This argument represents a fur damental shift of po-sition by Intervenors, and as such it ought to be disregarded as beyond the scope of Contentions 1-10. In addition, it is not supported by '.aw or common sense.
- 1. Tlie LILCO Transition Plan is Not Prohibited by New York State Law
- a. Actions Taken Under the LILCO Transition ' Plan Do' Not Violate Any New York State " Police Power" Law i (1) Intervenors Have Abandonad Their Contentions.
, in the contentions the County alleged that the various emergency plan-ning activities under the LILCO Transition Plan were prohibited by specific state statutes. But in thee. response to LILCO's ..iotion for summary f
.-. .- - --- -.- - --- . .- =- -. - - . - . ,
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disposition, and'in various court papers', the lntervenors essentially abandon
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-reliance on the proscriptive force of any of the statutes cited in' the conten-tions. Intervenors now assert that LILCO must have 'a. specific. grant of au-thority to' undertake the activities in the Plan.
Why must LILCO have a specific grant of legal " authority" to plan for-an emergency,. to make radio tsroadcasts, and to perform the other activities proposed in the' Plan?- Because, .Intervenors say, LIL'CO is' proposing to ex-ercise some undefined state ." police powers," But why do the activities pro-posed in the LILCO plan- constitute ' exercises of:" police power"? This, ' the -
linchpin of Intervenors' entire analysis, is left unexplained.
Intervenors simply assert time and again, without any explanation, that LlLCO is proposing to exercise " police powers."
They do so for a simple reason: as a general proposition, activity that is not prohibited by law is allowed. This is a cardinal principle of our legal system. Put another way, LILCO is free to plan for and respond to an emergency unless a law prohibits it from doing so.
(2) Interver. ors' Characterizations of LILCO's Emer-gency Response Are irrelevant.
What characterizes official governmental " authority" is the threat or use of force to compel obedience to commands. That ,is the key to this case. It is also the reason why Intervenors have never proffered a . reason for their re-peated assertions that LILCO is " usurping police powers." LlLCO does not propose to, and will not, use force or the threat of force to compel obedience to anything. This is an undisputed fact, and Intervenors have made no at-i tempt to dispute it, i
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-Whether one calls it " directing" or " guiding and facilitating" traffic,-
the action to be taken remains theisame: a LILCO employee will be standing in
- the road in an emergency and pointi_ng out to motorists.the particular direc-tion they should travel-as part of a larger plan to evacuate the~ area expedi- .
s tiously,- all of' which 'will have been publicized in advance. The actions to be taken under the LlLCO_ Plan run on a continuum, from putting up evacuation route signs 'or trail blazer signs in ' advance of an emergency. (this is the only pre-emergency activity challenged as illegal by the cintervenors),. to. deciding upon recommendations for action by the public to protect 'themselves, and in--
forming #the public of 'that recommendation,. as required' by the NRC, to sug :
gesting that certain foods' not be sold or bought,' to using traffic guides to promote an evacuation plan' . Intervenors argue that all of these activities constitute the " police power." While 'it is true that LILCO is' planning in an attempt to protect the health and safety of the public, as it is required to do under the NRC regulations, there is not a single activity raised by the Inter .
venors that is accomplished by the use of force, threat, or. coercion of any sort.
(3) The LILCO Plan is Not Based On Coercion.
Whether it is labeled " directing" or " facilitating" traffic, LILCO employ-ees may use hand signals and arm movements to point a particular way for motorists, but they cannot and will not stop motorists physically, they cannot and will not issue tickets to motorists who do not go in a particular direction, and they cannot and will not put the motorists in jail for disobeying their di-rection s . If a person is in a line of traffic that a traffic guide is directing to the left, and that person wishes to turn right, he is free to do so under the
- ~ t i
E,
-LILCO Transition Plan. - Similarly, if a ' person" drives from outside- the EPZ .
towards the edge of the EPZ boundary that has been evacuated, 'and wishes "to enter the EPZ, he will not be physically prohibited from entering (although-E ' he will be informed that it could be dangerous to do so).19/ And LlLCO traf--
fic guides are being . trained. to assist police and turn over their posts to po-lice should police participate in. the emergency response.
The significance of.this missing element of force is even more apparent when one analyzes' the other activities that intervenors assert are a usurpa-tion of state police power. They_ claim that' llLCO has no authority under-state law to decide what protective actions should be recommended to protect the health and safety of the public in the EPZ. The decision, in a vacuum, cannot be objectionable; what is objected to is LILCO's communicating the -
recommendation to the public. LILCO's recommendations, as required by the NRC regulations, are to be communicated .to the public through (1) an alerting system of emergency sirens situated in the dry . land portion of the 10-mile EPZ'and (2) radio broadcasts. As noted above, LILCO has specific authority under federal M administered by thy Federal Communications Commission to make those radio announcements, as does any other private
. individual or organization. LILCO has contracts with the participating radio stations. And no coercion will accompany these recommendations; LlLCO will simply provide information to the public about the emergency and recommend 19/
9 The question of whether, absent threat or force, LILCO's direction will be followed, is another matter; it has been litigated at length in this proceed-ing, and LILCO has presented te'stimony showing that people are likely to ac-cept LlLCO's guidance during an emergency. But the fact that people may follow LlLCO's recommendations does not turn LILCO's actions into " police i power" actions. The essential element, acting to discipline those who do not obey, is missing.
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actions:.that' members of the public.should ,takelto l protect themselves40/
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& _ Similarly, under the' Plan L.ILCO might recommend that' food ; be washed
- b~efore co$sumption,nor in; some casesinot consuyd,, as' aL result of an emer-
- gencyj involving potential contamination. ' LILCO willlin fact "only make recom-msndations -that foo'd 'not be sold, bought,' or eaten, or LILCO will 'itself 1 g -purchase contaminated foods' tuffs for destruction. LILCO will not. go' to-
- farms;-stores, ,and ' produce stands and s'eize or condemn.-any food: pursuant to the LILCO Plan.21/ This applies equally'to the recovery!and reentrylactivi-ties planned .to determine how to restore affected areas. The LILCO: Plan-
- provides for data collection, mobilizing resources, determining that. utilities:
are functioning, and . establishing an organization to estimate population expo-sure. None of tnese planning activities exercises any " police . power," no mat--
~
ter how one characterizes them. And all activities under the LlLCO Plan pro-vide for coordination with State or County' officials in responding, should the State er County. choose to participate.
(4) " Police Power" Means Regulation and Enforcement.
~ 'in their argument about the " nature of- the police powers of the- state,"
Intervenors recite many platitudes about the police power,- including that "in -
the American constitutional system, the police power is an inherent attribute M/ In point of fact, even governments do not ordinarily force people to evacuate at gunpoint. See Tr.10,575-76 (Sorensen).
21/ The issue of whether LILCO could in fact implement this portion of the Plan. regarding ingestion pathway was litigated before'the Licensing Board.'
The' Federal Emergency Management Agency (FEMA) witnesses explained that no force would be needed to convince people that they should not eat food that may be contaminated. In their experience at Three Mile Island, the problem was convincing people to eat any food that had come from the area.
Tr.14,257 (Keller); see also Tr. 13,687-88,13,729 (Cordaro).
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and ' prerogative' of, stateisovereignty";, "the police; power .is'. reserved ~ in the U.S. Constitution f under the .10th Amendment to the state"; "the police power is' the state's most essential ~ power"; and *?the~ police. power embraces protec -
~
- : tion ofithe. health an'd safety of persons within the state's territorial domain."
^
These' platitudes ~ do not explain why Intervenors think the 'LILCO -Plan is 'ille-
- gal. The sort of "promotioniof safety of. persons and property,"~ which the . .
1 l Supreme1 Co'urt has characterizedTas funquestionablv at the core of the state's -
police' power," Kelly v. ' Johnson, 425 U.S.- 238, 247. (1976),;is protection by . .
~ regulation, by' force, and by' the ' inherent threat of force. ~ The police' power .
allows the state to enforce its valid laws and to incarcerate persons who 1
-engage in prohibited activity. -
The sort of protection that is afforded by the .LILCO emergency plan does not derive from or depend upon threat or force. It is a protection ac-complished by providing information and making recommendations. New York' j~ law, and New York State's and Suffolk County's " police powers," do not pre-
- vent LILCO or anyone else from taking steps to help people in an emergency. ,
i (5) The LILCO Plan Does Not Regulate Emergency Planning.
l 1
- The Intervenors argue that inherent in their' police power is the power l to regulate the health, safety and welfare of its citizens and that LILCO is a
usurping that power to regulate in its emergency plan. What LILCO is doing I is planning for and responding to a radiological emergency; it is not regu-1
{ lating emergency response. It is not passing any rules which it can then im '
h, pose upon anyone regarding an emergency responso.
It is simply developing q
a plan and preparing to help protect the public in the event of an emergency-T' in accordance with existing federal regulations.and N.Y. Executive Law-L F
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v Article 2-B. That preparation does not constitute regulation of health and safety. lf an individual, after a car accident, directs traffic around the acci-dent until the police arrive to assist, that individual is not doing anything it-legal; no one suggests otherwise.
If that person keeps flares in'his trunk to prepare for .the eventuality of an accident where he knows he will have to di-'
rect traffic around the accident until the police arrive, that activity is not it-legal.
The activity proposed by LILCO under its Plan is directly supported by New York State Executive Law, Article 2-B, which provides for responses to emergencies in New York State, including radiological emergencies. Article 2-B provides that it "shall be.the policy of the state" that " state and local disaster and emergency response functions be coordinated in order to bring the fullest protection and benefit to the people," 5 20.1.C; "that state re-sources be organized and prepared for immediate effective response to disas-ters which are beyond the capability of local governments and emergency ser-vice organizations," 5 20.1.D: and that " state and local plans, organizational j arrangements, and response capability required to execute the provisions of ,
I this Article shall at all times be the most effective that current circumstances and existing resources allow," 6 20.1.E. Article 2-B defines " emergency ser-vices organization" for the purposes of the statute as a public or a private agency, organization or group ,'
organized and functioning for the purpose of providing fire, medical, ambulance, rescue, housing, food or other services directed toward relieving human suffering, injury or loss of life or damage to property as a result of an emergency, including non-profit and governmentally supported organizations, but exluding governmental agencies.
Section 20.2.E. The Local Emergency Response Organization (LERO) created
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'4
' under the LILCO Transition Plan squarely . fits this definition. Far from pro-f.
hibiting the creation of such organizations, Article 2-B encourages them.22/
- b. ' LlLCO's Action in Developing the Transi-tion Plan is Not Ultra Vires Intervenors contend that, by setting up the . Transition Plan, LlLCO ~
acted beyond the powers expressly or impliedly conferred upon it by its Cer--
tificate of incorporation and the State of New York, and therefore that LlLCO's actions are ultra vires. This argument is not supported by New York State law.
LlLCO possesses the powers conferred upon it by its Certificate of In-corporation and by the State. People ex rel. New York r. Albany Lighterage Co. v. Cantor, 239 N.Y. 64,145 N.E. 741, reh*g denied, 239 N.Y. 633,147 N.E. 227 (1924) (enabling act and cortificate of incorporation represent the source of corporation's purpose and powers). New York has adopted a broad interpretation of the powers which can be held by a corporation. "The powers of corporations are now so extensive, and include so many objects arising indirectly out of the apparent purposes for which they are organized, that it is difficult to say in any given case that a business act is not within the powers of a business corporation." City Trust, Safe-Deposit t, Surety Co. of Philadelphia v. Wilson Manufacturing Co. , 58 A.D. 271, 68 N.Y.S.
1004, 1005 (I'901). The key to the interpretation of corporate powers is to look for a logical relationship between the act to be performed and the 22/ It is LILCO's view that at the same time that Article 2-B allows the LILCO Transition Plan, it prohibits states and local governments from (1) refusing to plan for emergencies, including emergencies at nuclear power plants, and (2) interfering with the efforts of others to prepare for emergencies, including emergencies at nuclear power plants.
>J 3; ,
. - corporate ' purpose '4et forth in the' charter. Steinway v. Steinway,; 17 Misc.
- 43, 40 ; N . Y. S . 718, 720 '(N .Y. . S up. ' Ct. '1896) .
By -dint of LILCO's Restated Certificate of-Incorporation, . dated O'ctober 6,1980i the State'has granted LlLCO the broad powers listed in New York Business' Corporation Law S 202 (McKinney' 1963) and New York Transportation Corporation Law S 11 (McKinney 1943 and Cum. Supp.
1983-1984), and the express power to exercise the powers conferred by. the laws of New York. Subsection 202(a)(16) of the Business Corporation Law - -
specifically allows a' corporation to "have and exercise all powers necessary or convenient to effect any or all of the purposes for which the corporation is fo rmed . "
l Any doubt as to the construction of a grant of power should be re--
( solved in favor of the corporation, where the power exercised is not entirely-
- inconsistent with the granted powers or purpose of the corporation'. John B.
I j Waldbillig, Inc. v. Gottfried, 22 A.D.2d 997, 254 N.Y.S.2d 924 (19G4), aff'd, 16 N.Y.2d 773, 209 N.E.2d 818, 262 N.Y.S.2d 498 (1965). If there is a per-missible construction of a corporate charter that would encompass the acts to be performed, this construction should be adopted. In re Heim's Estate,166 -
Misc. 931, 3 N.Y.S.2d 134,139, aff*d, 255 A.D.1007, 8 N.Y.S.2d 574 (1938). The words of a grant of power may not be restricted to defeat their intendment. Robia Holding Corp. v. Walker, 257 N.Y. 431,178 N.E. 747, 750
! (1931).
A corporation has the powers expressly granted in its charter or in the statutes under which-it is create'd and such powers as are necessary for the
- purpose of carrying out its express _ powers and the object of its incorporation. Leslie v. Lo rilla rd , 110 N . Y . 519, 18 N . E . 363 (1888) . A l
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corporation _ is not' restricted to the exercise of powers expressly conferred by
'its ~ charter, but the corporation has the implied or incidental power to'do -
whatever is reasonably necessary-to effectuate the powers expressly granted -
and to accomplish the. purposes for which the corporation was formed. . This power exists unless a particular act is prohibited by law or charter. Gause
- v. Commonwealth Trust Co.,196 N.Y.134, 89 N.E. 476, 479 (1909). These implied powers are -not limited to such_ as are absolutely or indispensibly necessary, but comprise all powers that are reasonably necessary. M. The existence of such powers i . recognized and codified by subsection 202(a)(16)
~
of the Business Corporation Law.
LILCO's Restated Certificate of Incorporation gives LlLCO the express power to manufacture, purchase, and sell gas and electricity and derivatives thereof; to deal in bonds and other securities; and generally to exercise the powers conferred by the laws of New York on gas and electric utilities.
LILCO therefore has the broad powers, authorized by New York law, neces-sary to manufacture and sell electricity. There is no requirement that LILCO's corporate charter spell out in laborious detail all actions that may be necessary and convenient to pursue its corporate purposes. For example, no New York law explicitly " authorizes" LILCO to answer telephones, repair electric lines, read meters or give testimony at hearings and administrative proceedings. But all of these powers are necessary and convenient to effect the purpose for which LILCO was incorporated, and are therefore powers whit:h LILCO possesses.
LlLCO has the power to build and operate power plants. As a condition precedent to operating a nuclear power plant at full power, the NRC requires an adequate offsite emergency response plan. LILCO has the power to take l r
2
~ ' 'i all actions necessary and convenient to effect' this purpose. LI LCO's
' development of' the Transition -Plan is withiniits corporate powers, conferred upon it by its . Revised Certificate of: Incorporation and by .the State of New York.
In short, the essential. elements of the " police power." that the Interve-nors seek-to protect are the elements of regulation and of force. Force is .not used in any of the actions under LILCO's emergency ~ plan. The Plan was de-veloped in accordance with government regulations; it does not'itself regu-late. Thus, LILCO needs no "authcrity" to act. The real problem faced by
'Intervenors is that they are searching ~ for some way to stop the operation of.
.thc Shoreham Nuclear Pcwer Station. They have attempted .thus far to con-vince the Nuclear Regulatory Commission that the plant is not safe; those efforts have failed. Long Island Lighting Co. (Shoreham Nuclear Power Sta-tion, Unit 1), ALAB-788, 20 NRC (Oct. 31, 1984) . They have also with-drawn their resources and support from any emergency planning efforts in the hope that the absence of their resources would prevent all emergency planning and stop the NRC proceeding on Shoreham. That effort, too, failed. They are new challenging LILCO's emergency planning efforts, cast-ing about for some state law under which they can characterize those efforts as illegal. But no existing state law will serve that purpose.
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'e i II. lTHE: BOARD'S' THREE QUESTIONS ; '
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IQuestionII: iWhat action ~ s'hould thist
. 1 Board .take on LContentionsl1~-10Lin' _ ;
., . s v. . the fevent thatithere is no' decision; * . .
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- from 'a New1 York StateicourtJatithe; 1 < ,
M . ' time the lnitial:Decis' ion-in the emer t l -
- , [gency planning proceeding 1isLissued? .,
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b 1 AsLLILCO noted in its. reply to .the responses to -ita motion forfsummary.
disposition, since the intervenor's ' hav'e lno decision : f rom' a - New Yorkicourt >
that supports _their legal-theoiies, then, the , Board sh'ould rule ~ that there'is no i >
basis, for their contentions,Sor alternatively that'they have1not' met'theirjbur-den of going forward,?as recited in Louisiana Power & Light- Co. (W'aterford
- Steam Electric Station, Unit 3),- ALAB-732,.-17 NRC- 1076,11093 '(1983):-
The ultimate burden of. proof on the question of whether:the permit or license should 'be ' issued is, I of course, upon the applicant. But'where, as here,.
one of the other parties contends that, for a specific-reason '(in this instance alleged synergism) the per-mit or license should be denied, that party -has...the burden of going forward with evidence to buttress .
that contention.. Once he has introduced sufficient' evidence .to establish' a prima facie case, the burden then shifts to the applicant who, as part of his' over-all burden' of proof, must provide a sufficient rebut- .
tal to satisfy the Board that it 'should ' reject the con-tention as a basis for denial of the' permit or license. ,
(Quoting Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-123, 6
'AEC 331, 345 (1973)) . It would ~be fundamentally unfair to rule that an ,
intervenor meets both his burden of providing a." basis" for his contention-
- and his initial burden of going forward merely by citing a statute that he claims makes an operating license illegal and .that the applicant then has to-
~
rebut by going into a separate forum to secure a ruling to the contrary. See, $
LILCO's Reply to the Responses to its Motion for Summary Disposition on Contentions 1-10, at 3-16 (Oct.15,1984).
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13 In the alternative, thel Board. should simply decide Contentions 1-10 on -
the merits -- that is, decide'whether as a matter of law the state laws do or -
do not prohibit LILCO's proposed activities. The reasons why .LILCO. believes -
they do not are explained.above.
~
The NRC Staff's suggestion that further hearingsibe-held ~is not well-~
taken. Back in the spring of 1983, when LILCO first unveiled its Transition Plan, it' served it on the Board and parties along with a memorandum setting out certain significant facts about the Plan (actually plans, because there were several) and how it would be used. LILCO's Memorandum of Service of Supplemental Fmergency Planning Information, May. 26,' 1983. On page-18 of that memorandum LILCO .said the following:
As noted above, the LlLCO-County plan relies on Suffolk County police to direct traffic at certain key points. In the interim plans, trained LILCO personnel will guide traffic; if Suffolk County police are willing to help, LILCO personnel are also being trained to aid police officers in the emergency re-sponse. Also feasible is an alternate' plan that re-quires advance publication of evacuation routes but '
n_o traffic control.
Id. at 18 f emphasis in original). Everyone has long been on notice that the uncontrolled evacuation scenario would be an issue in this proceeding; in-deed, how could one fail to consider the possibility, in light of Contention 1 itself, which alleges, in its second paragraph, that LILCO's lack of authority to direct traffic renders its evacuation time estimates inaccurate, since the legal prohibition will prevent LILCO from ensuring that motorists use the pre-scribed routes?
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B'. (Question $2i[lii . connection with LILCO's: ' y ,
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-" immateriality'O argument, whether the ~ '
LILCO activities ~ enumerated in - Conten-
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NRC, regulations in order .to' obtain an ,
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r .g G As statdd 'in section. li A aboveJLILCO' believes (that'.only the functions L'
- in Contentions' 5-8..(essentiall'y assessing'.the accident, making' decisions,. an'd -
- advising _the; pEblic) are required by-[NRC regulations. [The functionsI l'
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.specified_. In Contentions 11-4, _9, and _10 -(essentially : traffic management) are -
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- not ' required. ,
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Even if the activities addressed in: Contentions 1-4, 9, and 10' w'ere
~
ordinarily required, 'under the more flexible provision 10 C.F.R.
' S 50.47(c)(1) the fact that 'the obstacle presented is beyond the applicant's ..
. control 23/ and could _be easily eliminated by the State and County'is a basis b t for not . requiring the activities in" this particular_. case. ,
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23/ The inability of the utility to compel a local government to participate is !
one factor to be taken into account in deciding whether a re ctor may contin-'-
ue to operate. See Consolidated Edison _Co._ of New York (Indian Point,- Unit Nos. 2 and 3), CLi-83-11,17 NRC 731, 733 (1983);- Consolidated Edison Co. -
l of New York (Indian Point Units 2 and 3), CLl-82-38,16 NRC %B8,1703
.(1982).
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'C . Question 3: -In ~ connection with LILCO's
" realism" argument, what effect.would an
' unplanned response by the State or County have and would such~ a response -result in -
. chaos, confusion and disorganization so as.to compel a finding that there is no
~,
" reasonable assurance that adequate pro-tective measures can and will be taken in the event of a radiological emergency'.'
at Shoreham?
This question is not part of any admitted contention.- The intervenors have never alleged, nor attempted to prove, that they would confound an emergency response by blundering around fecklessly. LILCO raised the issue of whether the State and County would in fact respond only to show that the purely legal issues in Contentions 1 10 are a fiction. The much broader issue of how the State and County would respond, now raised by the Board sua s. conte, is an enti-ely new issue that has not been addressed in e testimony.
The remedy for this is not to hold additional hearings; if the interve-nors had wanted to raise this issue they could have; the facts were squarely within their control. Instead, the prasumption that the State and County will act responsibly should be applied. However, the issue can be resolved on the evidence as well, using the existing record, as we shall show below.
- 1. The State and Launty will not respond unprepared _
lt would be a great injustice to allow a local government to thwart the emergency planning regulations by threatening to sabotage, if only by their own unpreparedness, an emergency response, indeed the " law of the case" prevents it. The Brenner Board ruled that it would be improper for the County to raise as issues its own refusal (as distinguished from its inability) to plan: '
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Accordingly, we hold that we are not bound by the County's findings on the adequacy of the LILCO offsite plan or the feasibility of developing adequate emergency planning for Shoreham. Our determina-tion that the County has made such findings in con-tradiction to federal law does not have the effect of requiring the County to adopt or ' implement an emer-gency plan for Shoreham. We do not possess. the ju-risdiction necessary to bring about such a result.
However, if the County seeks to have its findings adopted, it must litigate before us the facts which it believes support its view that it is not feasible to im-piement emergency preparedness actions which would meet NRC regulatory requirements in the event of a radiological emergency at the Shoreham nuclear power plant. The right of the County to litigate .
whether necessary emergency action can be taken may be distinguishable from the circumstance of a governmental litigant before us which simply refuses to take otherwise feasible actions.
. . .. (W]e will entertain no contentions inconsistent with this order. For example, we will not entertain contentions premised solely on the ab-sence of a Suffolk County approved plan.
Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
LBP-83-22,17 NRC 608, 643, 644, aff*d on other grounds, CLl-83-13,17 NRC 741 (1983).
The NRC Staff opposed admission of draft Contention G.E (later 24.Q),
which attempted to raise the question of whether Suffolk County police would provide security for evacuated areas:
It is a given in this proceeding that Suffolk County will not perform any evacuation functions. However, this contention sould extend the County's non-participation beyond that premise. The Board has held that it will entertain no contentions in this pro-ceeding " premised solely on the absence of a Suffolk County approved (evacuation) plan." LDP-83-22, at G2. The County in effect is arguing in this conten-tion that the LlLCO plan is insufficient because the County will do anything (or not do anything) to in'sure that the plan is insufficient. Under such terms, litigation of the issue will serve no reasonable purpose.
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. NRC Staff Response to' Draft Emergency Planning -Contentions, at 22-23 -(July 7, .1983); see also' NRC~ Staff Response. to Revised Emergency' Planning Con-
< tentions, at 20 ( Aug. 2,1983); NRC Staff Objections to Suffolk County's Re-
. vised Emergency Planning Contentions, at 3 (Jan.19,1984). The ' Board de-
~
nied the contention, finding "no basis to assume-that- the' Suffolk County.
police, contrary to their normal duties, would ' refuse to provide reasonable
. and appropriate protection in- the ' event of any type of emergency in the i Cou n ty . " Special Prehearing- Conference Order, at 15 ( Aug. ; 19,1983).
i l The issue of whether the State and County would, inadvertently or l
l not, sabotage an emergency response is likewise an issue based solely on l
their refusal to plan, or worse, their commitment to confound any plan. It ought not to be allowed for that reason.
Moreover, the hypothesis that there would be an unplanned, ad hoc re-l sponse by the State or County is a fiction, like the assumption throughout
( the rest of this proceeding that the State and County would make no response l
l at all. There is ample basis for the Roard to find that the State and County will provide for a planned response, but only after Shoreham begins to oper-ate.
! There is no evidence on the record that the State or County would re-i spond in an ad hoc manner, for the intervenors have diligently avoided saying what they would do in a real emergency. Even the recently filed Roberts and Palomino affidavitsM/ do not claim that a State or County i
24/ Affidavit of Richard C. Roberts, Sept. 25, 1984, and Affidavit of i
Fabian G. Palomino in Opposition to Motion to Dismiss and in Support of Plain-tiff's Cross Motion for Summary Disposition, Sept. 12, 1984, submitted as At-tachments C and D respectively to Opposition of Suffolk County and the State of New York to LILCO's Motion for Summary Disposition of Contentions 1-10 (the " Legal Authority" Issues) (Sept. 24, 1984). These will be cited here as
! the " Roberts Affidavit" and the " Palomino Affidavit." t 1
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' there is ample -basis:for finding'that:they;would' plan.'inithatievent;to ensure.
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that..they1would be prepared fto respond'in aniactual emergency. . Thisiconi 4 . ,
clusioncis justified on the following tbasis: -itlis uncontested 1that the State s ~. _
1 Land County .want to protect .the public' as' effectively as(possible from:a ra-g.
(Indeed, they are required !to: do ,so'by the LState law
- diological emergency. ,,
m lt is uncontestedi
~
and policy set out in New York Executive Law ' Article 2-B.) .
that,, if a plant operates, 'the .public?is better protected with an emergency plan than without one -- that is, a planned response is safer than an unplanned one. Thusi. the Intervenors' ' refusal to plan can make sense', inD their thinking, only so long.as it can be used as a ' tactic to -stop ~ Shoreham from operating altogether. To put it another way, the -intervenors are not .
anti-planning; they are simply anti-operation. Or, to put it .yet another way, the State and County have taken great pains to oppose the LlLCO Plan.,- alleg- ,
ing that it is not adequate. It is credible that they would attempt to replace it with a poorer model of their own improvised devising.
25/ All that inspector Roberts' affidavit says on this question is that "Ta]ssuming arguendo that there could be some sort of ad hoc' response by Suffolk County personnel" (Roberts affidavit at 214; see also id. at 4-5 119,10) and that there "is 'no evidence" that the State.or County would un-
~
y id. at 13129). The rest of the affidavit is a- 1 dertake repetitiverecovery formulaicand recital reentry of wh (Tvarious things cannot be done (1)-because ;
County Resolution 111-1983 forbids them and (2) because they have not been
~
planned for, a repeat of various propositions the County failed to prove at ~
the hearings (see, edL., iA at 5-61 12), and a series of quotes from the ;
County Executive.
- i.
26/ The issue of what should be done in the short time between the time
, iperation begins and the time the State and County are trained and ready-to respond is yet another issue that could be raised, but a minor one compared to the other issues addressed here, i
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[AllItNs is undisputed land) undeniable, LbasEd.on ;thefrecord (especially .
. .. .. X othe frequent claims'of the!!ntervenors.:that theylwant;only to protect tholt"
!+ .u pub!!.E'i.1d,:more importanti on the truth. It follows,fthin,:th$t if She ceham' beginsltooperats, 'th'e incentive' for .the(intervenors 'not to ' plan
- ^
vanish'es, and a . strong incentive to: plan Jmuit take;over;..-)On 'this ba' sis aloneX-
~
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- t. . .
(- -
-- the Board should find that the !ntervenors will plan;for an' emergency at .
,1
-Shoreham,-if Shoreham1begins- to operate. m d
4
{' . ; -
l 2; ' Responding unprepared so 'a's Lto sabo-
[ ' tage.the' emergency; response would ~
L j itself' violate the' Supremacy Clause; i
Second, if the State or' County were to respond ad hoc in a way calcu-lated to confound the response u'nder an NRC-approved utility' plan,. their ac-tions would violate federal law and be preempted. , Thus_, the preemption issue is once again raised.
The legislative history of the recent NRC Authorization Acts, including the one enacted just last month, shows the clear Congressional purpose to' have effective emergency response capability and ~ not to.let State and local governments thwart this goal.
During the floor debate on the most recently enacted bill, Congressman Pasahayan stated as follows:
27/ The Intervenors presented no witnesses who are in a position to make emergency planning decisions. But if one may be ' permitted an analogy, the school administrators who testified for the County acknowledged that if Shoreham were to operate they would at least reconsider their decision not to
- plan. Tr. ~11,084 (Jeffers, Muto), 11,084-85 (Petrilak). On the difference-I generally between what people do now and what they would do if the plant were licensed, see Tr. 9327 (Weismantle, Cordaro), 9214-15 (Robinson, Cordaro), 5259 (Clawson) (radio stations).
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I applaud,this provision which I view as clearly con- 9'" %. . - ', '
firming what is already-in the law: That a plan sub'- x mitted by a utility will satisfy the Atomic Energy
. Acts requirements. I also view existing law as
~
providing authority.for the . federal government to
. implement .any utility' plan submitted _ under this ' pro -
vision. I think that both concepts' -- that .of utility submission, and that of federal implementation, of
~
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emergency plans -- are' important, and I am happy to- '
see them further reinforced by this bill. . d.
Both are. important because they add up to one central principle: The Congress does not intend to.
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allow states or Iccalities, by refusing to participate ,
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in the emergency planning process, to prevent a - %'
completed facility f rom operating. A refusal to par-ticipate could take the form either of a refusal to - / M[ '
submit or a refusal to implement a plan. ..With regard .
. to a refusal to submit a plan, the bill provides ex- q plicitly for a remedy: a utility plan will suffice.
With regard to a refusal to implement, the bill is not " '
explicit, but the intent of Congress is clear: We cannot allow a refusal to implement to be used to '. '
prevent the operation of a f acility, for to do so would make a mockery of the provision. It would -
allow states and localities to achieve through a refus-al to implement a plan what we have expressly ' .
forbidden them to do by refusing to subm.it one. ..
A-Id. (emphasis added).
- l. l ..
~
A decision by the State and County not to prepare for an emergency, '
at the same time that they know they would respond if a true emergency oc~
curred, is itself an emergency plan of sorts -- but a plan aimed at thwarting, e .
the Congressional purpose and nullifying NRC regulations. Such a decision,7 ,. <' l if made, would be preempted by federal law. ,
. 3
- 3. The State and County will take ,
advantage of LILCO's planning base in a real emergency . .q 4
Third, assuming that the Intervenors will not prepare, even in the ,)
presence of an operating plant (an unrealistic assumption), the Board sisould
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2 A. ffind that the planning.done by LILCO willicompensateLfor 'theilntervenors'-
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, [ lack c~{t! planning. AThe bedrockiprinciple here is:that any; government l official-
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in !ans emergency willltry to act: responsibly.28/ 8 This means that 'if a:meansiof-
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Gpptedikpoople 'is made available to.him,ihe will use'it.' L No one ' alleges that W . . E ~t
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Jthe Governor or County -Executive:would perversely and destructively l refuse.
to u'se a alfable resources.
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fg.'mf_ Ng# tdLCO;said -in its Reply to.the responses .to the motion for summary
- , ? y& lg Q);./ , fQdisposition.c there are several; bases for. a finding that government officials' mK y, s .%,,,
,. f . ' . ,r twould act responsibly. One is the standard legal; presumption'to that effect.
~ < .
Duke' PoYs) G: (Catawba Nuclear Station, Units l1 ; &' 2), LBP-84-37, 20 'NRC '
N __, slip ope at ,54 (Sept.18,1984) : ~~ nother is the presumptionithat if a'-
~
4 ,
party fails- to present' his evidence,'his failure raises a presumption against .
4.
him. Public Ser01ce Co. 'of New Hampshire (Seabrook Station, -Units 1 t, 2),
s . . . .
. s
. ALAB-471, l7 NRC 477, 478, rev'd as' to other matters, CLl-78-14, 7 NRC 952 (19781. A third is .New York State Executive ~ Law Article 2-B, .which requires -
?/
L> state officials tb , behave responsibly. Se'e Cordaro and Weismantle, ff. Tr.
4 '
13,899,, Att. 10, App. A. A fourth is the evidentiary record, which shows
- 4 a,3 that in an emergency people concentrate on protecting threatened people, Tr. .
% 870-71 (Dynes), and which contains the opinions of various LILCO witnesses
%)' .
that Sufi >lk County and New York State officials would act responsibly. See y
. _ , Tj.010,472-73,10,616 (Clawson),10,519 (Weismantle).
s :) s -
- 4 / #inally, th's affidavits of Inspector Roberts and Mr. Palomino (if the
,% : *^+ ,/
<- .. .. Board chooses to consider them) support LILCO's case, because they
,- s
}g,i 4+v 28/,'ted elet officials in an emergency would be concerned only about the public-The y,. n,. w%lfsre. ..
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- p. . demonstrate that.the State and County understand.that an unprepared emer-s.
Jgency; response is inferior tv. a prepared one. With this understanding, it .is h inconceivable .they would ' deliberately try .to bring about the: precis'e horrors .
L 7
4 that their affidavits . postulate. - In other words, the .intervenors a'dmit, 'in .
these affidavits,!that their unplanned ' response would' not live up to NRC standards; if LILCO's plan _is found by this Board to meet NRC standards ;
.then the State and County must admit it is' better. than their.ad hoc' efforts s
(except to the extent they question the correctness of th'e NRC decision or t
question NRC standards). It-is simply ' not credible that, recognizing this, ,
9-the State and County would willfully choose an inferior over a superior mode .
of response in a - rea:- emergency.
The presumption that arises when a party refuses to present evidence applies with special force here, because the Intervenors waged a-campaign 2 th'roughout this proceeding to exclude evidence about what they would do'in a real emergency. Indeed, they' succeeded in- having stricken from the record much of LlLCO's evidence about what kind of response the State or County would make. c or example, LILCO submitted written testimony (on " role' con-
~flict") stating that Suffolk County police and other personnel can be expected to respond in a real emergency. Cordaro et al. , ff. Tr. 831, at 29-30. At i
the County's request, this was stricken. Amended Suffolk County Motion to
-Strike Portions of LILCO Testimony on Contentions 25, 23 and 65,' at 7-8 4 ,
(Nov. 29,1983): Tr. 790-793 (Dec.1,1983); Order Confirming Changes in -
Schedule with Regard to " Group 11" Contentions and Rulings on Motions to Strike (Dec. 2,1983). See also Tr. 1624-25 (striking testimony about public officials giving interviews inconsistent with. official information).
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J :On December 15, 1983, the Board elicited information about whether the !
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" County had agreed to participate in. a coordinated _ news release. Dr. - Cordaro i 8.
X v' answered as follo"ws:
..,i.
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.J_ s: -A. - (Corda ro) . I am not aware of any formal agreement or understanding -we have with 'the county which says that they would coordinate their efforts.
& That's pretty much due to the fact that i.s .we have this what I call an academic situation here;
+ 'where our plan .has to: stand on its own and the 1
i county has contended that it will not participate in pv ,'-
any way.
, Now, in the real world, if this goes s forth and a plan is approved and an accident does a' indeed take place, or plant gets a license to operate, 1
1 fully expect that the county will realize what'the .
? '
, situation is and cooperate.
.t h.'
They are aware of problems in news dis-seminat' ion shd the difficulties that can develop.
They were involved originally in the planning pro-cess that developed things like news centers, when they wer'e cooperating with us in the development of the plan.
So they are fully aware of the diffi-culties involved and I assume they would cooperate
,s and understand.
in fact, we have made provisions at the news center to accommodate county personnel who would show up and participate in the news-dissemination process.
\ s s
Tr. 1972-73 (Cordaro) . The County moved to strike all but the first para-
\ graph; the motion was granted. T r. 1973.
, Later the same day, on redirect, LlLCO counsel _ asked whether.an agreement with the County was necessary, a proper question in light of the earlier _ question whether such an agreement existed. Dr. Cordaro answeredi s .
A. (Cordaro) I don't think so. I think my response was premised on an understanding of the ,
gounty's expression that they are required by law to s
-protect the public health and safety in the event of Q \
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-51 '
any catastrophe, inciuding a nuclear power accident, z
that they; would actively, by. law, become involved in that' catastrophe 'and .do anything they. can to re-spond to that Lincident.
That would include being involved 'in proper news _ dissemination.
One place that they would have access to -
- all;the appropriate information is at the news center, the joint news center. 'So I suppose. that _ they
- definitely would participate in the news center activ-ities.
Tr. 2064 (Cordaro) ' Again, Suffolk~ County moved to strike the a'nswer as
" speculation." Tr. 2064. LlLCO counsel argued that the Board was admit-ting evidence' that Suffolk County's nonparticipation could be harmful while
~
excluding evidence on the other side of the issue:
[LILCO counsel): I think if we strike that sort of evidence, we are at the same time letting in evidence, which was let in today, about the county not participating. I think we are letting in evidence on one side of the issue and risking getting error into the record.
Second, I don't think the premise of these proceedings .is that we can ignore what wculd happen in the real world based on an artificial premise be-cause of a present political or legal position. Where there is testimony that something will happen in a real emergency in the real world, that testimony should be listened to and included.
Tr. 2064. In response Suffolk County repeated its standard position:
[Suffolk County counsel]: As I have said all along, this whole proceeding is premised on the Lilco transition plan. How the county is not participating l in the Lilco transition plan. The Lilco transition !
plan is something that is to be implemented by the j LERO organization.
The board struck other parts of Lilco's other !
plans that had anything to do with governmental participation. LERO is the organization that is sup-posed to implement this plan, and speculation about the county's participation is just that, speculation.
y _ _
D-Tr. 2065-66. Dr.' . Cordaro's testimony was stricken. Tr. 2066.
- -Time and again, th'e .Intervenors tried to exclude evidence about what-the County's people or. New York State's would do. in a real emergency.M/ -
See, e.g. , Suffolk' County : Motion-to. Strike Portions of LILCO's Group IFA; Testimony, at 26-27 (Mar. 9, .1984): Suffolk County Motion to Strike Portions
- . of LILCO's Group Il-B Testimony, at 10, _17-18,19, 42 (March 28,1984) .
Likewise,- they repeatedly tried to strike testimony about how New York' State plans' for radiological emergencies generally or at---other nuclear plants. See, ea, Suffolk County Motion to Strike Portions of 'LILCO's Group ll-B Testi-mony, at 65-66, 69:(March 28,1984) .
~
To be sure, the evidence on the " conflict of interest" issue revealed that public officials may be influenced by the wrong ' things zand may make -
mistakes. And TMI showed.what happened when even well-intentioned public officials were unprepared. The difference .is that here LILCO has provided a planning base that will prevent such problems. All that the' Board need find with regard to State and County participation is that th'ey will not actively try to harm the public health and safety.
- 3. An analysis of the Plan and the record shows that chaos, confu-sion, and disorganization would not result l As the record makes clear, the LILCO Plan is designed to incorporate elements of the State or County who may wish to respond. The Plan. (LILCO Ex. 80) provides as follows:
29/ LILCO designed a plan expressly for use in case the State chose to take -
_a part, but the Board ruled that it would not be litigated. Order Limiting Scope of Submissions (June 10, 1983).
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_ . .. Should SuffolkLCountiNew York State,Jor0y _
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Federal governments _ choose 1to . implement actions _
'J ,
- consistent with1their) respective ' legal authorities toi
~
protect the healthfand-- safety of .the publiciEthose ac-n ,
< ~ ;tions:will take precedencel.over .LEROf action's, ?The- -
b
' Director: of LocalfResponse' willfassure that LERO:ac- ,
4 stions continue as needed to : support. governmental:re--
sponse activities. ,
'~
' Plan ' at 11.4-1 j (Rev.E 3); see also Cordaro and Weismantle, ff. Tr 13,899,i at -
~
L8-9; LILCO's- Mot' ion for Summary Disposition 4 of' Contentions /1kl0 (th'eiL5 gal;
~
Authority"~ issues), c at 45( Aug'. 6,1984); - LILCO's; Proposed : Findings of Facti ,
- a'nd Conclusions of -Law on Offsite Emergency'; Planning,, at 314 1_681 L (Oct. ' 5, y
1984); :Tr.11.0,527-28, .10,682-83 -(Weismantle) . :Specifically as' to Suffolk- .
~
- County,3_0/ the Plan says this:
~
30/ The role of the State _is . discussed' (in Rev. 4). as follows:
Should the. Governor, declare that the State of New -
- York is in comm'and-of the emergency resp'onsei the Director of LERO would subordinate personnel 'and t I equipment to the Governor or his designee. The Governor or his designee _could be accommodated in' the Director's Office in the' EOC, or. could choose to work out of the state EOC-in' Albany. The Director
! would continue to' provide advice ad assistance to the State in the degree thev request.- If the State
. chooses to assist in the emergency response without assuming ^ command and control, then LERO will in-corporate State = resources into the emergency '
l' responses as these resources became available. The types of services that..the State might provide are .
identified in the'New York State Radiological Re-sponse' Plan and include:
~
, o Command and- Control - the Governor is capa -
r ble of mobilizing both State and County re-
.~ sources to assist 'in emergency response ef-
! forts .
o Communications -- The State-police maintain a ~
state-wide communications system that'has a mobile command post ous with extensive com- _
(footnote continued) m t.
/
I A
s
e.-etr',- e r, me *-
- 9 -o w w-w e $- e *-g tr-++
i
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-54 .
The role of Suffolk County,'should-it decide to become involved in the response to' a radiological
. emergency, . either because the Governor orders 'it to
~do so or because the County Executive so chooses, will'be for the .various members to participate to the extent.to which they are qualified by reason of prior training or experience. This would include the ac-tive participation at the EOC of the County. >
Executive: the' participation of Public Information ,
personnel at both the EOC and the ENC; and the participation of other County officials to the ' extent the County Executive -deems prudent.
Plan, at 1.4-2 (Rev. 3) (at 1.4-2a in Rev. ' 4) .
-Thb. evidence compiled in this proceeding shows that the State or,Coun-
. ty could respond ad hoc if necessary, given LILCO's planning base. To ad-dress this issue, we must look at the various functions that must be carried out in an emergency response.
- a. Notifying the ' State and County First, the State and County must be notified, in the very short run after an accident began, before the State or County could be notified, the
-(footnote continued) munications equipment.
o Social Services - the State Office of Disaster Preparedness can provide food and logistical support for care of evacuees.
o Public Health . The State Dept. of Health can do sampling and testing of food and soil to determine public risks and appropriate remedi-al actions.
o - Fire and Rescue - The State Office of Fire Prevention and Control can activate state mobilization and mutual aid plane to activate and coordinate local fire departments.
Plan, at 1.4-2 f, -2a.
y e
t i 1 LILCO Plan would be in effect of necessity. Indeed, -if .the LILCO - Transition Plan' meets NRC regulations,1then the speed at:which the State and' County
' can be notified is immaterial; no~ matter how long it takes,'a qualified plan will be in operation until' then.
As soon as it could be accomplished,; however,3_1/ the . State and County .
would be notified by means of the RECS.line.3_2/ The Suffolk County Police Communications Center-monitors'the: RECS line 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> a day. Plan, at 3.4 ( Rev . ~ 3) .
The State has advised that~ the RECS telephones at State offices have been disconnected and placed "in storage." Palomino Affidavit at 6.
~
However, LlLCO witnesses testified that if the RECS-line could not be used, they would pursue other means of communication. Tr.13,737 (Cordaro).
' Other means (commercial phone lines) are available. Plan, Fig. 3.4.1 (Rev.
3). A licensing board or court cannot find that NRC regulations cannot be met simply because a state government has deliberately unplugged its phone.
31/ Revision 4 of the Plan provides that "Upon his arrival at the local EOC, the Director of LERO will establish contact with the LILCO EOF and the New York State EOC. Plan, at 4.1-1 (Rev. 4).
32/ The Plan says this:
New York State has continuous access to emergency event information at Shoreham via the Radiological Emergency Communication System (RECS) which con-nects all the nuclear power plants in the State with State authorities, if, during an emergency, the State decided to participate their efforts could be co-ordinated with LERO at the Brentwood EOC initially via the RECS line and commercial telephone.
Plan, at 1.4-2 (Rev. 4); see also ii 3.4-1 (Rev. 3); Tr.13,737-41
( Dave rio) .
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L Second,' S' tate. or County!dAcision'mkkers ' mush receive 'information Nh'e? -
w- .
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> ~ Linformation" system .is, of: course,f airealdygin' pflace. . Lindeed,q communications - .
- from:Shoreham to offsite l agencies were ~aj'.' Phase = l" issue not lit _igable no"w. .
?See,;e.g. ,;l hase b .l:is' sues 1EPg15,16, land 17, ldiscusse'd sin Longi lstand
' Lighting' C'o'. L(Shoreham NuclearIPoweriStation,! 0Nitil),: L'B P-82-75, 16 ; N'RC'-
< l986,:1011-15 (1982). 'AN >noted 'above,. theiLERO. EOCicanj: communicate with: -
- the ' State by: RECS line _or3 commercial [teleph'one; ; P'lan,-l Fig. S 3.4.11 (Rev p 3) 3 -~its v.
- can communicate lwithi the: County thei same way, S, Hand there ~ isi radio' com~ y ,
- munication between. the~ Shoreham. Station: and the County police, see' .
Shoreham, .su~pra,116 NRCat 1012. Also available is the National Alert -Warn -
Ling System, which allows contact with Suffolk and Nassau' Counties. LSee Tes-
~
timony of; William F. Renz and Philip Friedman for the~ Long Island. Lighting Company on Phase t - Emergency Planning' Contention 11(A), :(B),c and (C) -- - ;;
Communications with Offsite Response Organizations', 'at= 8-9,10,13-14 (Oct.~
12, 1982).33/
Moreover, various -federal agencies can provide information to the State
~
and County.3_4/ And LILCO has provided means to- furnish information -to-33/ This was Phase I testimony and, because of the County's default, was
-ever heard.
34/ The Plan (Rev. 4)' provides that FEMA will serve as the . primary. point of contact for requests for Federal assistance from State and local officials
- and coordinate and ensure appropriate nontechnical assistance, including i- telecommunications support, requested by State and local agencies. Plan, , at .
^
. 2.2-4 t, -4a - ( Rev. 4) . The NRC is to provide technical advice' to State and local- agencies and develop for them a Federal technical-- recommendation.
Plant at .2.2-4a (Rev. 4) . The Department of Energy is to maintain a -
~
technical' liaison with State and local agencies that have radiological moni-
'toring, assessment evaluation, and reporting responsibilities. Plan, at -
i (footnote continued)
I ,
E __ , _ - . _ . _ . _ _ . _ . . . _ _ _. a . . . a._ .u. , ,._ m.. .a . .n_
n p' _ .-
~
local governments like th'atlused during storm outages. Tr. 10,675, 10,676 (Clawson), 10,676,10,679 (Robinson).
So the. info'rmation willLbe'available; the State and local officials have only to listen to it. :The reason they will' listen to it'is that having informa-tion is better than not having information in an emergency, and they' know it.
lt is inconceivable that_ State and local officials would refuse to pay attention =
to advice, monitoring information, etc. from LERO, DOE, ' NRC, and FEMA.35/
- c. Msking ' decisions Third,' the State or County decisionmaker may have' to make a decision about protective action recommendations. As the Plan describes the process:
The Director of ~ Local Respo'nse will be receiving and reviewing a constant flow of informa-tion from the Radiation Health Coordinator atithe EOC as to event classification, escalation or de-escalation, real or potential radiation hazards, and recommendations on protective responses, in con-junction 'with the Radiation Health . Coordinator the Director of Local Response will formulate the LERO position regarding the protective response -required.'
Having determined the appropriate protective response, the Director of Local Response will then confer with the Manager of Local Response. Based on the information provided.by the Manager of Local Response and information from the Utility, the (footnote continued) 2.2-4b (Rev.' 4); see also id. at 2.2-4c & -4d (Rev. 4). Other federal agen-cies also are called upon to provide advice and guidance to State and local officials. Plan, at 2.2-4e (Department of Health and Human Services, Depart-ment of Transportation), 2.2-4f (Environmental Protection Agency, National Communications System) (Rev. 4).
~ 3_5/
The school administrators presented as witnesses by Suffolk County testified that they would take into account all available information and make a decision based only on what was best for the health and safety of their pu-l _.
. piis. Tr.11,004,11,009-10,11,010-41 (Muto),11,058-59,11,061 (Petrilak),
' - 11,005 (Jeffers) .
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Director of Local Nesponse will make a decision re--
garding'the implementation of offsite ! protective;ac- s z tion s .
It must be recognized that tl$e decision. making-process during' a radiological? emergency:is one of-continual re-evaluationL. based on- changing conditions within the plant and meteorology. Event classifica- -
tion and recommen'ded: protective response) actions .
.will-constantly be modified, and-'upgra'ded or down-graded accordingly.
Plan, at 4.1-2 (Rev.- 3 ). -~T h e mai n shortcomi ng would be that these officials would not have received -Shoreham-specif'ic training.~ - As the LILCO witness.
testified, "[i]t would 'be difficultL for Suffolk County officials .to take part in:
the decisionmaking process 'without training." Cordaro et al. , ff. Tr.
10,196, at 30. But they would havel available all the advice and information--
that a LERO decisionmaker would have and, while it would not be the most .
desirable situation, they could be led through the decisionmaking process by.
those present who as trained. As the Plan says:
Should the County Executive or his . designated representative choose to report to the Local EOC.
during a drill, exercise or emergency, the Director of Local Response will work in conjunction with the County Executive or. his representative in re-sponding to the emergency.
Plan, it 3.1-1 (Rev. 3).
Moreover, the Governor or his designee should be prepared by virtue of the fact that New York has a state plan that covers the five operating nu-clear plants in New York State. If the State personnel are qualified to par-ticipate at 'Ginna, Nine Mile Point, FitzPatrick, and Indian Point, they are in large measure qualified to participate at Shoreham. In many respects the de-cisions to be made art the same everywhere. The logic of decisionmaking --
the choice between sheltering and evacuation, for instance -- is generic.
1
9
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l
. The information on _ which ' protective act i on recommen d iat ons are based is stip-Corda ro, . et
~
ulated on the New York State ' radiological emergency data form.
l, ff. . Tr. 10,196, at 13.~ The LILCO Plan goes so. far to include a provision a -
for-' selective sheltering and selective evacuation to 'make it consistent with the
~
State' plan. Plan,. at 3.6-5, 3.6-6' ( Rev. 3); Cordaro e_t ah, ff. Tr. 8760, at 28-35.
- d. Notifying the public .
Fourth, the State or local officials must notify the public. -The sirens
-are already installed, and the EBS stations are prepared to broadcast the messages. See generally Clawson et al. , ff. Tr. 5254, at_8-9,_ Att.1,-4-12.
Large institutions, including schools, have tone alerts.3_6/ No one suggests, or believes, that the Governor (for example) would decline to use the sirens, tone alerts, and radio stations and elect to handicap himself byJtrying to find some other means of communicating on the spur of the moment.
A greater concern is that State and local officials might broadcast ill-considered messages to the public, creating another TMI-style "information disaster." This is the only respect in which it makes much sense, LILCO submits, to be concerned about the possible ill effects of ad hoc participa-tion .3_7/ However, Dr. Mileti testified that it would be better, from the 3_6/
The tone alerts were a " Phase 1" issue, though there is some evidence about them in the Phase il record as well. See, e. g. , Tr. 11,020 (Muto),
9207,10,676 (Robinson),- 9208,1138-39 (Miele) . Likewise, the sirens were addressed in Phase 1. The Plan uses the radiological emergency data form used throughout the State of New York. Tr.14,569 (Keller) .
37/ Other emergency actions simply do not present much potential for con-flict or confusion. If, for example, the State were to attempt to provide buses for evacuees or to evacuate nursing homes it could hardly hurt.
- c. .
- -i - v.
5 t-standpoint of publ'ic information, if the County'were participating,' b'ut that
- nevertheless the 'r~esponse might be as good as if .the state or local govern-
-ment were participating because the many~ factors about public information
- that'really matter for human' response _in an emergency are addressed in 'the:
~ information system' in _the Plan. Tr.1785 (Mileti).
Moreover,- there is no basis for finding that the' State or County ~ would '
broadcast misleading, inaccurate, or inconsistent information. For one thing,-
whdre-'would the State or County get false information' to pass on? Who in an emergency would have the information about. plant status? LILCO and the-
~NRC. Who would have information about projected or' monito' red dose rates?
LILCO and "the DOE- RAP team. So, . all the agencies with pertinent' informa-tion are in the LILCO Transition Plan. And the record suggests _ that LILCO, the NRC, and DOE would not likely'be the source of misinformation. See, ea, Barnett et al. , ff. Tr. 10,396, at 115.
The Board may also rely to some extent on the fact that .New York State has five operating nuclear plants and must be assumed to understand some--
3-thing about the importance of emergency information. If it doesn't, then all five plants are unsafe too. One might also reasonably infer that the County is aware of the importance of emergency messages to the public, because in Phase I it attempted to have admitted a contention that LILCO's onsite plan was not clear that Suffolk County should take a " major role" in determining the form and substance of messages to the public in the event of an emergency at Shoreham. Long island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-75,16 NRC 986,1006 (1982).
This question was addressed in LILCO's prefiled written testimony on the " credibility" issue, in which the LILCO witnesses testified that they
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e b'elieved both State and--County ; officials would act responsibly infan
~
. emergency, and that this' would .mean declining to ~ disseminate information-
~
without: adequate basis.
~
Barnett et al. , ff. Tr. ~ 10,396, at 113-15. This por-
- i-Ltion was " stricken at ~the County's request.'
Nevertheless,' the record still contains evidence- suggesting that commu--
_nicating with 'the public can be accomplished based on LILCO's planning.
For'
~
example, the Plan provides for joint releases of. information:
Prest conferences' will be conducted periodically in the Press Conference Room of the ENC. , Private and public_ agency /or organization representatives (i.e.
MAmerican- Red Cross, Suffolk County, FEMA,- NRC,
- State officials, etc.) will be invited to join LERO workers at the ENC to participate as a panel in' all press conferences to provide up-to-date information, respond to any rumor received, and answer any -
questions the media may have. This panel will also be invited to help disseminate any emergency an-nouncements including accident termination ("ALL CLEAR") announcements.
Plan, at 3.8-6 -(Rev. 3) . LILCO has done extensive planning to _ deal with the news media. See, e.g. , Tr. 2025 (Weismantle) . Indeed, Mr. Weismantle testified at length (Tr. 1715-32) about LILCO's emergency news center and how it has space for State and County representatives. Tr. 1715 (Weisma ntle) . He said that in his opinion the coordination of news releases from a' single news center would eliminate conflicting statements by officials.
Tr.1720 (Weismantie).
Moreover, there is a procedure for working out differences of opinion about emergency information among LERO officials and other agencies that
~
might be involved in an emergency response:
A. (Weismantle) There is a process-for identifying the differences, for trying to work out resolutions, and if resolutions can't be worked out, through discussions the various representatives of l the organizations who might have disagreements for l
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' identifying those disagreements-in a public forum, tliat is, in the form of the ENC to the press through
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press conferences.
- That's true both for[ disagreements that may arise between LERO and another organization or-
~
possibly. -- as well as dis' agreements that may. arise, between, say, two federal agencies. So the mecha-nism~ iscin place and would be exercised to make ~sure that accurate information got to the media and, hence, got to the public.
Tr. 2036-37 (Weismantie); see also Tr. '1515 (Mileti)' ("The lack of government participation (in . planning) isn't going to help. What's important, however, in -
judging and preparing for public safety in reference to emergency information is' b'uilding an emergency information system that, with reasonable assurance, guarantees that good emergency information is issued; that the county 'isn't participating makes -that job harder, doesn't make it impossible.") Once again, the Board need find only that the Intervenors would not in an emer-gency _act in a crazed and self-destructive fashion, and that is not a difficult finding to make.
It is true that there is no guarantee that the press will not try to ex-ploit political differences. Tr.10,620,10,703 (Clawson) . But as one LILCO' witness, a former reporter, said, reporters can tell responsible sources, and responsible people would not comment on something about which they have no information . Tr.10,616 (Clawson) .
- e. Evacuation -
Fifth, the State or local officials must take certain steps to facilitate I protective actions. If no protective action for the public were required, or if the appropriate protective action were sheltering, then the system described so far would be adequate, and nothing more would be required for an L
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_O e-4 T e i
effective emergency response. ' But if. evacuation of some of the public were
- required,~ then it might' be -necessary-- (1) ,to evacuate people in their own
~
cars; (2) to evacuate special institutions' such as hospitals, nursing.hom.es, and ' schools; and (3)- to provide buses for able-bodied people without their own transportation.
For people who can drive themselves and their . neighbors out of the EPZ,- LILCO has proposed to use traffic guides. 'As the record _ shows,. LERO-
. traffic gu' ides are instructed to turn over their duties to Suffolk Co'u'nty po-licemen, if they show up, but to stay and assist.38/ As the " Traffic Guide -
3_8/ Revision 4 of the Plan provides:
5.1.3 If the SCPD offers assistance:
- a. Suggest that SCPD send an SCPD Representative to the EOC to coordinate with the Traffic Control Point Coordinator. This SCPD Representative should bring a portable police radio that can be used to contact the Police Dis-patcher at SCPD Headquarters.
- b. Inform the Traffic Control Point Coordinator that an SCPD Representa-tive will be arriving and to coordinate with this representative as outlined in ~
Attachment 14 (Participation of Suffolk County Police Department During a Ra-diological Emergency).
Plan, OPIP 3.6.3, pages 2-3 of 4G (Rev 4). Also, the Lead Traffic Guides are to S.4.13 If notified by the Traffic Control Point Coordinator that Suffolk County Police Department will assist LERO during an evacuation, implement procedures subtitled " Lead Traffic Guide" on At-tachment 14 (Participation of Suffolk County Police Department During a Radiological Emergency).
Plan, OPIP 3.6.2, at page 5 of 46 (Rev 4).
._ . - . - . _ _ _ _ . _ ~ ,_ -
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Y Procedure" in. the' Plan says: -
' If County or other police arrive at your post,; turn .
over. control, to them. . Brief, them on th'e strategy of
'.the control post-an'd any problems that may have arisen during the emergency. Remain with them throughout.the duration of the assignment.to provide ~
. radiological- dose information 'and communications with Request that police accompany you to the
~
-LERO.
Emergency Worker. DecontaminationL Center at the completion of th'e assignment.
' Plan, OPIP 3.6.3, page 11 of. 46 ( Att.1, page 2 of 2) (Rev. 3).39/
.in any event, even assuming that the Suffolk County police were to- re-spond in their ad hoc fashion by-arresting LILCO traffic'. guides instead of di-recting traffic, the situation would still be no worse than' an " uncontrolled" evacuation. Indeed, it is hard to see:how the 'Suffolk County police, untrained or not, could make matters worse than an uncontrol' led evacuation, and it is doubtful that Suffolk County will claim that they would. It is true that the police would be untrained in the specifics of the LILCO Plan. That.
is one reason why the traffic guides have been instructed to stay with the police and brief them. And we have heard at length from suffolk County po-lice witnesses about how only they are qualified to direct traffic.
As for providing buses for people without their own cars, the ad hoc nature of the governments' response would make no difference. Buses are provided by private bus companies and driven by LILCO drivers or by the bus companies' own employees. There is no reason to suppose that the Gov-ernor would order these buses not to leave their garages. Similarly, the evacuation of health care facilities has been prearranged between LILCO and 39/ Revision 4 of the Plan has a procedure called " Participation of Suffolk County Police Department During a Radiological Emergency." Plan, OPIP 3.6.3, pages 46c r, 46d of 46, Att. 14 (Rev. 4) .
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< othose' institutions. Nothing .the Governor would wish to do would likely -inter-
'fere with arrangements already;made. Finally, the evacua' tion 'of schools is-carried out by theirLown buses. !The Governor could do nothing more nor.-
less than' what- LILCO proposes to do. There is'no apparent reason why the:
Governor would, for example, order the -schools not to use the reception cen--
' ters chosen, by 'LILCO.
- f. ' Recovery Phase-
~
~
Sixth, the postulated ad hoc response is not likely to render ineffective the aspects of the emergency response that involve the 50-mile ingestion pathway zone and recovery and reentry. Planning for the ingestion pathway EPZ does not deal with "immediate life' threatening situations" and does not require immediate response. Pacific Gas & Elec. Co. ~(Diablo Canyon Nuclear Power Plant, Units.1 & 2), LBP-82-70,- 16 NRC 756, 766 (1982); Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 & 3),
ALAB-717,17 NRC 346, 373 (1983).
The Plan provides that:
5.1.3.6The Director of Local Response will contact the New York State Commissioner of Health and the Connecticut Department of Environmental Protection and provide the LERO ingestion .
Pathway protective action recommendation:
New York State Commissioner of health Connecticut Department of Environmental
-Protection, Chief of Radiation Control Unit. '
If the above-mentioned state officials / agencies indicate that they are willing and able to im-plement the ingestion pathway plan for their state, no further action is necessary. If an adequate response cannot be ensured, refer l to ,
Section 5.4.
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- Plan, OPIP._3.6.6,1 pp.; le. r, L1f..of 50 (Rev. ;3). ?Again, the planning base for
~
the State or' Cou'nty _ to1u'se has alr~ea'dy been ' put. in place.' For example,
^
- LILCO;has. compiled listings'of names,' addresses,' and (whe're: available) tele-phonel numbers of ' dairy farms, poultry farms, hog1farms, . vegetable and fruit -
Tg' r owers, and farmstands in the New Yorkipart of the 50-mile:EPZ as wel.1 as ,
i
~' food and dairy processo'rs using~ agricultural} commodities produced in_'the.
~
50-mile EPZ.' ~. Cordaro1et al. ,? ff. ' Tr.~ 13,563, at l'0,/ 23-24, 37-38, Att'.' l-6. _
1
. LILCO maintains up-to-date maps showing key . land us'e . data, dairies,H food processors, ~ surface water intakes, reservoirs, ' treatment plants, and ground- .
water sources.
~
Id., at 25-26. LERO. maintains _ a comprehensive _ list of ~
community wells -a'nd surface water sources. These .resou rces
~
Id.,-at 26-29.
[
5 could be used.by New York State as well as LERO. See generally 'llLCO's Proposed Findings of Fact and Conclusion's of Law on Offsite_-Emergency Plan- .
ning, at 298-314 (Oct. 5,1984) .
The short of the matter is that, given the extensive and detailed plan-ning base that LILCO has put into place, the specter of an unplanned re-sponse by State and County officials cannot prevent LILCO from carrying its
, burden of proof. To decide this issue against LILCO the Board wo~uld in ef-i fect have to find that in a real emergency the State and local officials would deliberateiy act contrary to the interests of the public. There is no basis for such a finding, and much evidence to -the contrary.
^
lil. CONCLUSION For the reasons given above, LILCO submits (1) that the Board should
~
decide the merits of Contentions 1-10 and (2) that, even leaving aside the 1 issue of federal preemption, LILCO should prevail on all 10 contentions.
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3Respectfullp: submitted,
'^
_ LONG- lSLAND LIGHTING ' COMPANY ,
d >+(E ./1-(L/-X-M.n.
q y iBY-~ M .
.fj(nes N. Christman .
- Huntoric r, Williams:
, - P . O . '~ Bo x11535 ':
. 707 East Main" Street: >
. Richmondi VA 123219. ,
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- DATED: November 9, '1984 = .
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. 'LILCO,' Nivember 19,.1984 ,; ,
- CERTIFICATE OF SERVICE -
J 1 In th'e Matter of LONG ISLAND LIGHTING COMPANY' (Sh'oreham Nuclear Power. Station',: Unit 1)
Docket No. 50-322-OL I hereby certify. that copies of LILCO'S BRIEF ON CONTENTIONS 1-10 were' served this date upon the following by first-class mail, postage prepaid,
.or, as indicated by. an asterisk, by Federal Express:
James A. Laurenson,* Secretary of the Commission Chairman U.S. Nuclear Regulatory -
Atomic : Safety and Licensing Commission
-- Boa rd Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Atomic Safety and Licensing East-West Tower, Rm.' 401A Appeal Board Panel 4350 East-West Hwy. U.S. Nuclear Regulatory Bethesda, MD 20814 Commission Washington, D.C. 20555 Dr. Jerry R. Kline*
Atomic Safety and Licensing Atomic Safety and Licensing Board Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission East-West Tower, Rm. 427 Washington, D.C. 20555 4350 East-West Hwy.
Bethesda, MD 20814 Bernard M. Bordenick, Esq.*
Oreste Russ Pirfo, Esq.
Mr. Frederick J. Shon* Edwin J. Reis, Esq.
Atomic Safety and Licensing U. S. Nuclear Regulatory Board Commission U.S. Nuclear Regulatory 7735 Old Georgetown Road Commission (to mailroom)
East-West Tower, Rm. 430 Bethesda, MD 20814
~
4350 East-West Hwy.
Bethesda. MD 20814 l
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.c-h' J Donna Duer,; Esq * ~ Stewart. M. Glass, Esq.* ~
- Attorney. ..
Regional Counsel Atomic Safety and Licensing Federal Emergency Management:
Board Panel . Agency.
-U . S. lNuclear. Regulatdry_ ,26 Federal Plaza, Room 1349
. Commission .
New York, LNew York. 10278
- East-West Tower, -North Tower -
' 4350 East-West Highway '. Stephen B. _ Latham, - Esq.
Bethesda, ' MD . -' 20814 ' Twomey,: Latham & Shea 33 West = Second Street Fabian G; ' Palomino, ' Esq.* P.O.' Box 398 .
' Special Counsel'to the Riverhead, . New York 11901-Governor Executive . Chamber Ralph Shapiro, Esq.
Room 229. Cammer & Shapiro, P.C.
State Capitol .
9 East 40th Street Albany, New York 12224 New York, New York 10016 Herbert H. Brown,- Esq.* James Dougherty, Esq.
Lawrence Coe' Lanpher, Esq. 3045 Porter Street -
Christopher McMurray, Esq. Washington, D.C. 20008
.Kirkpatrick & Lockhart 8th Floor . Jonathan D. Feinberg, Esq.
1900 M Street, N.W. New York State Department of Washington, D.C. 20036 Public Service, Staff Counsel Three Rockefeller Plaza MHB Technical Associates Albany, New York 12223 1723 Hamilton , Avenue Suite K Spence W. Perry, Esq.
San Jose, California 95125 Associate General Councel Federal Emergency Management Mr. Jay Dunkleberger Agency New York State Energy 500 C Street, S.W.
Office Room 840 Agency Building 2 Washington, D.C. 20472 Empire State Plaza Albany, New York 12223 Ms. Nora Bredes Executive Coordinator Shoreham Opponents' Coalition 195 East Main Street Smithtown, New York 11787
. .1; ,
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Gerald C. -Crotty, Esq. ' Martin ' Bradley Ashare, - Esq..
Counsel to the Governor Suffolk County - Attorney
,s .;.' Executive Chamber H. Lee Dennison Building '
State _ Capitol Veterans Memorial Highway
. Albany, New York - 12224 .Hauppauge, New York 11788-4Ws -b 1 w James N. Ch/istman Hunton r, Williams 707 East Main Street Post Office Box 1535 Richmond, Virginia 23212
. DATED: November 19,1984
_ _. . _ - - .