ML20100D061

Response to Intervenor & NRC Answers to Util 850227 Renewed Motion for Summary Disposition of Legal Authority Issues on Basis of Federal Law.Certificate of Svc Encl

ML20100D061
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	03/26/1985
From:	Christman J HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20100D035	List: ML20100D034 ML20100D061
References
OL-3, NUDOCS 8504010063
Download: ML20100D061 (52)

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LILCO, March 26, 1985 5

4 UNITED STATES OF AMERICA

. NUCLEAR REGULATORY COMMISSION

Before the Atomic Safety and Licensing Board

'In.the Matter of

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'LONC ISLAND LIGHTING COMPANY

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Docket No. 50-322-OL-3

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(Emergency Planning Proceeding)

-(Shorehaml Nuclear' Power. Station, )

Unit 1);_

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i LILCO'S RESPONSE TO INTERVENORS' AND NRC STAFF'S ANSWERS ~TO LILCO'S RENEWED-MOTION FOR

SUMMARY

DISPOSITION on March 19, 1985, the.NRC Staff and the Intervenors each filed answers to LILCO's February 27, 1985 Renewed Motion for Summary. Disposition of Legal Authority Issues on Federal Law Grounds.

The NRC Staff asserts in its latest filing an analy-sis of preemption law which, in LILCO's view, is simply wrong,

-for the reasons explained in Part.III below.

The Intervenors in their' latest' filing release a great deal of smoke in an at-tempt to establish that the Board and parties must return to square one on the legal authority issues, if we turn to them at all.

.Through the haze, sensible heads must agree on the fol-lowing immutable facts:

1.

There are ten contentions on legal authority issues now pending before this Board, which were filed by the Interve-nors.

They have been briefed by the parties at length;1/ the 1/,

LILCO's Motion for Summary Disposition of Contentions 1-10

.(the " Legal Authority" Issues), August 6, 1984 (78 pages); Op-h#Q-lgh (footnote continued) 9 PDR E

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final briefs were filed four months ago; and the parties at one time agreed that no further hearings were required to resolve them.2/.

2.

Despite the Intervenors' best efforts to assure other-wise, these contentions must be decided in order to close the offsite' emergency planning proceeding before this Board, which t

has been in active progress for almost two years.

(fcotnote continued) position of Suffolk County end the State of New York to LILCO's Motion for Summary Disposition of Contentions 1-10 (the " Legal Authority" Issues), September 24, 1984 (119 pages); NRC Staff's Answer in Opposition to "LILCO's Motion for Summary Disposition of Contentions 1-10 (the " Legal Authority" Issues), October 4, 1984 (29 pages); LILCO's Reply to the Responses to its Motion for Summary Disposition on Contentions 1-10, October 15, 1984 (67 pages); Suffolk County and State of New York Response to ASLB Memorandum and Order Dated October 22, 1984, November 19, 1984 (100 pages); LILCO's Reply Brief on Contentions 1-10, November 29, 19d4 (25 pages); NRC Staff's Response Pursuant to the Licensing Board's Memorandum and Order of October 22, 1984, December 7, 1984 (34 pages).

The Intervenors also filed Response of Suffolk County and the State of New York to the NRC Staff's Answer in Opposition 6

to "LILCO's Motion for Summary Disposition on Contentions 1-10 (The ' Legal Authority Issues')," October 15, 1984 (11 pages);

the Board struck that filing in its October 22 Order as an unauthorized pleading.

In addition, recent filings addressing Contentions 1-10 are as follows:

LILCO's Renewed Motion for Summary Disposition of Legal Authority Issues on Federal-Law Grounds, February 27, 1985 (11 pages); Answer of Suffolk County and State of New York in Opposition to LILCO's Renewed Motion

-for Summary Disposition, March 19, 1985 (24 pages); and NRC Staff Response to LILCO's Renewed Motion for Summary Disposi-tion of Legal Authority Issues on Federal Law Grounds, March 19, 1985 (8 pages).

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See Tr. 13,823 (LILCO); Tr. 13,831 (Suffolk County), Tr.

13,832 (New York State), Tr. 13,834 (NRC Staff).

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13. 'This Board has jurisdiction'to decide the preemption issue; no one has contended or-can' contend otherwise.

Intervenors assert two basic propositions.

The first is

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that LILCO'has. deliberately chosen to-litigate on the merits, before the-New York state court, the key federal preemption issued-.whether state law may be interposed to prohibit

<LILCOs utility emergency plan, which is: authorized and re-

, quired by Congressional legislation and'NRC regulations.

The

Inte rvenors ' proposition is' false, and-Intervenors know as

-much. -The Intervenors' second proposition is that LILCO is en-gaging in unseemly manipulation of judicial processes and forum

" footraces" in an attempt to get this Board to address the fed-eral: preemption issue =before the state court has a chance to do so; Intervenors urge the Board to rebuke this unseemly conduct.

In'tervenors have much to learn about. pots and kettles.

The-fact is that the preemption issue has been pending before this Board for many months, and the state court knew that before it decided to address state law issues, and not federal ones, ini-tially.

LILCO, on-the other hand, submits that the following propositions cannot be-disputed:

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1.. Contrary to the assertion in Mr Brownlee's affidavit filed with'the Board, LILCO has never represented to any court "that the-federal' preemption issue should be decided in

.the State Court Actions."

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2.

'LILCO.was' hailed intoEstate court as a-defendant by the County,-thefState,.-andL the Town of Southampton; LILCO did~

V notc-' choose ~ that-; forum.

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3.

. LILC04soughtJto removeIthose' actions to a-federal

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N court on the ground.that the complaints themselves raised-

'threshhold; issues ofcfederal. law-requiring an_ analysis.of the-

. Atomic: Energy!Act:and NRC. regulations.

'The County, State:and e

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LTown argued,.tonthefcontrary, that their complaints were based solely onl state

• law and'that1 federal preemption would become an m

21ssue,:,if at all, only after a decision on state. law issues.

The; federal court' reluctantly agreed with.the County, State and r

Ndwniand.remandedthecaseto'the' state. court.

As-a result, on IAugust'!14, 1984,0.LILCO withdrew'its_its original motion.to. dis--

miss b'asedfon federal' preemption and'instead moved-~to dismiss 3

'the; complaints-in.the state court based solely on state law.

t At thatitime, LILCO' forthrightly informed the state court that' 1LILCO'had movedithis Board to' decide the federal preemption is-U sues. -

4.

'On August 6,;1984,-LILCO filed its motion for summary

' disposition oflthe legal authority issues before this Board.

LILCO argued-that, assuming State law would prohibit LILCO's actions under>itsiutility plan'(i.e., that the state court

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. would rule 'aus it did), federal ~ law, by authorizing utility o,

plans when state or local governments refuse to plan, preempts

.the state law.

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.The County,JState and Town'immediately changed-their 0$p j5

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(position land' argued--to the state: court that the claims-~1n.their

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compla'in't's could not be' resolved without deciding'the'. federal e

(preemption issue.;1After briefing, the state court, on October T

• L3;;1984,Jruled'thati2it would not addres's federal; preemption at.

sthe:outsetjand ordered.the parties:to1.brief and argue initially fonlyethe -. state r law.': issue s. _Thus, theistate court knew before

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" it decided to' limit-its initial consideration to state-law Fissues that.thie: federal ~ preemption issue was already pending

[before this-Board.

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6. : After.the/ state court's ruling on the state law-is-

sues,fMr.-Brownlee. informed >LILCO's counsel that, if LILCO did

" riot raise - the federal' preemption issue in the state court, the CountyJand' State would contend--

despite LILCO'slpending mo-i l

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' tion on; federal; preemption before this. Board -- that LILCO had iwa'i{eNltheifederalpreemptionargumentforalltimeandwould f -be precluded:by res judicata-from having-any other' forum --

1 including-this Board --taddress the federal preemption issue on e

-theJmerits.

7.

.In, response, LILCO has informed Mr. Brownlee and the istate, court that it. emphatically does not waive the federal o

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' preemption 71nsue, that it has already thoroughly briefed that e,.

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. issue before this Board, that it will plead the federal preemp-ition issue:before the state court in order to avoid any

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inference of waiver, and that it will ask the state court to a

abstain or otherwise-refrain from ruling on the federal issues

'on the merits so that this Board can do so.

8.

It.should come as no surprise to anyone that LILCO contends that a federal forum -- this Board.-- should address theofederal' preemption issue, as the state court has issued a

' declaratory ruling on state law.

-Therefore,- for:the reasons stated below and in previous cbriefs' addressing the issues, LILCO asks that the Board address LLILCO's motion for summary disposition on Contentions 1-10, and that the Board grant it.3/

.I.

Background

1 On February 23, 1983, following the Suffolk County Legis-lature's declaration that the County would not do emergency e

. planning, Suffcik County moved to terminate offs.te emergency planning proceedings before this Board on the grounds'that LILCO could not as a~ matter of law meet its emergency planning

^ burden under NRC regulations without local government partici-pation in.an emergency plan.

The County argued that because it had passed. resolutions stating it would not participate, and I

3_/ _ As previously stated in a letter to the Board dated March 20, 1985, LILCO requests.that'the Board not delay its decision on the factual findings in order to include a decision on Con-tentions 1-10.

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, x because participation was required for an adequate plan under

, federal regulations, the " utility-only" plan of the sort LILCO was contemplating presenting to the NRC would be deficient as a

. matter of law and need not be considered by this Licensing _

Board.

LILCO. argued that-(1) the County's resolutions are pre-empted.by the Atomic Energy Act, 10 C.F.R. 5 50.47(c), and the

Authorization Acts of 1980 and 1982-83, (2) federal law allows utility plans without state or county participation, and (3)

. federal law requires that the Licensing Board consider such a

-plan;as part of_its determination of whether emergency planning for Shoreham is adequate to obtain an operating license for the plant.

See LILCO's Brief In Opposition To Suffolk County's Mo-tion to Terminate This Proceeding and for Certification,-March 18, 1983, Vol.

I, at 63-96.

The Board ruled that the County's resolutions were pre-empted' insofar as they attempted to prohibit the Licensing

. Board from considering a plan submitted by a utility, and that the Atomic Energy Act, pertinent NRC~ regulations, and the NRC Authorization Acts allow a utility to submit a utility-only

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plan.

Long Island Lighting Co. (Shoreham Nuclear Power Sta-tion, Unit 1), LBP-83-22, 17 NRC 608, aff'd, CLI-83-13, 17 NRC 741 (1983).

LILCO then submitted to the NRC its " Local Offsite Radiological Emergency Response Plan" for the Shoreham Nuclear Power Station.

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I Following the filing of its Plan by LILCO, the Intervenors p

responded on July 26, 1983 with approximately 200 pages of con-tentions.

The first ten contentions allege that LILCO's taking various actions contemplated under the Plan -- acts such as making decisions and recommendations, notifying the public of an emergency, and facilitating traffic response, in short, the key elements required to meet NRC emergency planning regulations -- are illegal under specific state and local stat-utes.

LILCO objected to these contentions, arguing that they were just another formulation.of the County's previous argu-ment, which it had lost, that a utility could not do emergency planning without state or local participation.

See LILCO's Ob-jections to Intervenors' " Revised Emergency Planning Conten-tienc," August 2, 1983.

The Licensing Board admitted Conten-tions 1-10 on August 19, 1983 over LILCO's objection.

While litigation of_the other emergency planning issues proceeded, the parties agreed that hearings need not be held to address Contentions 1-10.4/

Briefing of the legal issues raised in Contentions 1-10 was deferred (Tr. 3675) at the sug-gestion of the parties.

See Joint Report by LILCO and Suffolk County Concerning Briefing of Contentions 1-10, Novenber 11, 1983; NRC Staff Status Report on Legal Authority Contentions, 4/

See footnote 2, above.

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o November 14, 1983.

The' Licensing Board observed that Conten-

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4-tions-l-10 involved " issues of New York State law," Tr. 706 (Judge"Laurenson), and suggested that the parties.take the state law issues to state court.

See, e.g.,

Tr. 715, 2229, 2390, and 3661-62.

-In March 1984, Suffolk County,'the Town of Southampton,

-and New York State filed suits in New York State court asking for a declaratory judgment that certain actions contemplated by c

the LILCO Plan were illegal under specific state statutes.

LILCO removed these cases to'the U.S. District Court for the

' Eastern District of New York, Cuomo v. LILCo, Civ. Act. No.

84-2328 (U.S.D.C., E.D.N.Y.) -- where a related (but not iden-tical) preemption issue was already pending before Judge Altimari, Citizens for an Orderly Energy Policy, Inc., et al.

v. County of Suffolk, et al., Civ. Act. No. 83-4966 (U.S.D.C.,

E.D.N.Y.)S/

-- on the grounds that the question of.LILCO's

~1egal authority to implement its utility plan can only be con-sidered by looking at federal, and not just state, law.

The federal court remanded the complaints based upon franchise Tax 5/

The issue before Judge Altimari was whether the federal regulatory scheme overrides Suffolk County's resolutions refusing to participate in emergency planning at Shoreham, i.e.,

whether it imposed a federal duty on Suffolk County to participate in emergency planning.

This issue is distin-guishable from that of LILCo's right to undertake emergency planning, in the absence of governmental participation, in

. order to meet federal licensing requirements.

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Board of the State of California v. Construction Laborers Vacation Trust for Southern California, 463 U.S. 1 (1983).

In oral argument on LILCO's removal petition, the Court noted that

"(ijt makes more sense to me to have the cases stay here in this court.

I will make that very clear to you.

But I don't think that's the state of the law."

LILCO's Reply to the Re-sponses to its Motion for Summary Disposition on Contentions 1-10, Oct. 15, 1984, Att. 2 (May 25, 1984 Cuomo v. LILCO Hear-ing Tr.) p. 33.

The state court cases were remanded to state court in June, 1984.

LILCO filed with this Board in August, 1984 a motion for summary disposition on Contentions 1-10, requesting that the Board assume that the activities challenged in Contentions 1-10 are prohibited by the state statutes cited and asking the Board to rule that the activities are allowed under federal law.

The Board stated on October 22, 1984 that it would reserve ruling LILCO's motion for summary disposition on Contentions 1-10 pending action by the state court on the state law issues be-fore it, and set a schedule for further briefings.

In state court, LILCO filed a motion to dismiss alleging i

that the state statutes cited in the coraplaints do not prohibit LILCO's emergency planning response.s/

Intervenors filed as s/

Because of the Federal District Court's ruling in re-manding the lawsuits to state court, LILCO withdrew federal (footnote continued)

. their response a cross-motion for summary judgment, briefing

.the state law issues and then raising and briefing the issue of preemption, explaining that preemption had already been raised by LILCO before the.ASLB.

Plaintiffs' Joint Brief in Opposi-tion to LILCO's Motion to Dismiss and In Support of Plaintiff's Cross-Motion for Summary Judgment, Sept. 11,.1984, p. 22-23.7/.

At a conference of counsel, the Intervenors urged the state court to take up federal preemption as well as state law is-sues.

Cuomo v. LILCO, Consol. Index No. 84-4615, Sept. 18, 1984, Tr. of Status Conference at 10-14.

LILCO argued that the state law issues were properly raised by the complaint but that

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the federal issues were not yet before the court because LILCO had not filed an answer with affirmative defenses.

Id. at 19-27.

LILCO also noted that a motion for summary disposition of federal law issues was pending before this Board.

Id. at 27.

The state court ruled that the parties should file further briefs on the state law issues only.

Cuomo v. LILCO, Memorandum and Order, October 2, 1984.

(footnote continued) preemption as a basis for its motion to dismiss, since the fed-eral court had ruled that this was an affirmative defense rath-er than 'n integral part of the cause of action, and moved to

' dismiss based on New York law.

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It is ironic that the State and County have tried to place the federal preemption issues before the state court by pointing to LILCO's filings on that issue before this Board, yet they have argued before this Board that LILCO has chosen to litigate the preemption issues in the state court.

On February 20, 1985, the state court judge issued his de-cision as to state law issues, ruling that LILCO's activities in pursuing its emergency plan were in violation of the state's police power.

Cuomo v.-LILCO, Memorandum and Order, February 20, 1985.- On February 27, 1985, LILCO renewed its motion be-fore this Board for summary disposition on Contentions 1-10 on the grounds of federal preemption.

On March 6, 1985, LILCO filed before the state court judge a draft partial judgment accompanied by a cover letter.

The cover letter forthrightly explained that in order to avoid any allegation that LILCO has waived the preemption argument and therefore is estopped from asserting it before the Licensing Board, LILCO would file an answer alleging its affirmative defenses, including federal preemption, accompanied by a motion asking the state court to abstain from any ruling on that issue because it is pending be-fore this Licensing Board.

On March 18, 1985, Judge Altimari ruled in Citiz_ ens suit that.Suffolk County's acts in passing its resolutions were not in and of themselves preempted acts under federal law.

Citizens for an Orderly Energy Policy, Inc. v.

Suffolk County,

_Civ. Act. No. 83-4966, Memorandum and Order (E.D.N.Y. March 18, 1985).

The ruling was limited, holding only that the County is not itself required by federal law to adopt its own emergency plan.

The Court did not hold that the County could frustrate

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LILCO's utility plan by interposing state law.

Indeed, the court's reasoning strongly suggests the contrary:

Certainly the County may not require LILCO to comply with the County's require-ments for a satisfactory RERP; whether LILCO's RERP is sufficient is a question for the NRC, and the County may not override the NRC's judgment.

Here, however, the County has not passed a moratorium on nuclear plant construction and operation based on the County's opinion that no satisfactory RERP can be devised.

Rather the County has adopted the position that a satisfactory RERP is not obtainable.

The County has not and cannot supersade the judgement of the NRC on whether or not a license should issue for Shoreham.

Once the NRC makes the deci-sion the County's opinion on LILCO's RERP will become academic.

An examination of the relevant legisla-tive history in this case leads tc a similar conclusion.

Congress was well aware of the possibility that local governments might re-fuse to cooperate in furnishing a RERP.

The possibility that a state might frustrate completion of-a RERP was expressly addressed from the floor of the Senate.

Senator Johnston stated that it was " reasonable to expect" that states might " simply not submit an evacuation plan."

125 Cong. Rec.

S.

9473 (daily ed.) July 16, 1979.

Senator Simpson commented that "[t]he possibility that a plant under construction could have its permit terminated because the state where it is sited has failed to form a plan is not a matter to which we should give only cursory attention."

Id.

The Senate debate on this point indi-cates that the Senate was aware that a local government could refuse to participate in er..ergency planning.

The Senate did not,

however,~ adopt an amendment to require local government participation.

Rather than require participation, Congress provided that the utility could provide a plan.

Id.~at,26-31-(emphasis added).

The NRC Staff and the.Interve -

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nors each replied to LILCO's renewed motion.for summary dispo-

sition.on March 19, 1985.

II.

The County's opposition To LILCO's Renewed Motion

.The1Intervenors urge the Board to summarily deny LILCO's renewed motion for summary disposition on the conflicting grounds that (1) there is no statement of the legal authority issues now before the Board that could be the basis for summary'

. disposition and (2) the legal authority. issues remaining before zthe Board have been asserted in state court and should be de-cided there.

These arguments are addressed in turn'below.

A.

Contentions 1-10 Are Pending Before-This Board And Should Be Decided By This Board

.The Intervenors now argue that there is not an adequate statement of "LILCO's legal. authority" to carry out its Plan and therefore LILCO's Renewed Motion for Summary Disposition must be denied.

This argument makes no sense in light of the record already developed before this Board on Contentions 1-10.

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The State Court Decision Does Not

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Resolve Contentions 1-10

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While the Intervenors often recite that it is LILCO that has the burden of. proof in this proceeding, see, e.g.,

Interve-nors' Answer at 4, it is the Intervenors' burden in the first instance to sustain their contentions.

The Intervenors assert in the first portion of their contentions that certain acts contemplated under the LILCO Plan are illegal under state law.

The second portion of each of Contentions 1-10 asserts that the

. state law illegality results in LILCO's inability to meet NRC requirements, and therefore a license for Shoreham cannot issue.

The Intervenors now claim that LILCO, by advisina the Licensing Board of the state court decision that the contested acts are illegal under state law, has " admitted" Contentione 1-10, rendering LILCO's Motion for Summary Disposition "nonsensi-

- cal."

Intervenors' Answer at 12.

But the state court decision i

goes only to the first part of each of Contentions 1-10 -- the assertion that certain acts contemplated under the Plan are 11-legal under state law -- and merely sets up the second part of each of those contentions, namely what effect such a determina-tion has as to LILCO's compliance with NRC law.

It is that issue which was addressed in LILCO's initial motion for summary disposition and which LILCO has now renewed.

For purposes of briefing Contentions 1-10 before this Licensing Board, LILCO i

has always assumed that the state law assertions in Contentions 1-10 were true.

See, e.g., LILCO's Motion for Summary Disposi-tion of Contentions 1-10 (the " Legal Authority" Issues), August 6,

1984, at 2.

The state court decision does not change the posture of Contentions 1-10 before this Board, except to elimi-nate any question about their ripeness.g/

In arguing that the state court decision disposes of Con-tentions 1-10, Suffolk County characterizes the state court de-cision as having been based on the two separate notions that (1) LILCO has no authority to perform the functions set forth in the LILCO Plan becaase it would violate New York law and (2)

LILCO has no corporate authority under New York law to perform the functions set forth in the LILCO Plan.

The Intervenors contend that these are "two independent bases" identified in the Supreme Court's decision, and that either, standing alone, is " fully dispositive of the legal authority question."

Inter-venors' Answer at 10.

First, it is LILCO's view that basis number 2 is subsumed in basis number 1.

New York law is New York law.

Whether one determines to apply traffic laws, corpo-rate laws, or a general case law theory of " police power" and g/

LILCO has consistently taken the view before this Licens-ing Board and in other forums that state law does not prohibit the activities contemplated under the LILCO Plan.

LILCO dis-agrees with the state court's decision and will appeal'it at the appropriate time.

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' " governmental # unctions,"-the fundamental finding'that New-York-f p*

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B Llaw; prohibits LILCO's actions.is the same for purposes of o

examining 3whetherl federal? law allows those actions notwith-4 a"

.standingistate' law..

Second,fcontrary to.the>Intervenors': assertion in their

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-AnswerJat' 2,,-LILCO isLclaiming precisely that>theLAtomic.Ener-gy Act, the NRC; regulations,: andithe URC Authorization Acts em--

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4, <ipower,LILCO,to perform 1those acts: required by NRC regulations

~ (to? implement an emergency plan,: should it be necessary to doiso

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in; response to an emergency.'at Shoreham.9f a

NRC regulations requirelas a" safety matter that'LILCO have a

3 Lin place an~ emergency. plan'in. order:to obtain'a license for its

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plant.: As LILCO~has discussedJat length in its pleadings'on federalopreemption, Congress considered whether requiring'as a

-safety. matter-an. emergency. plan would1 inhibit utilities-where a

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_ state or localityLrefused to help: prepare and implement that Lplan.

Congress" foreclosed the opportunity.of-states and-lo-

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calities to' regulate nuclear. power by withholding their ser.

vices.in furtherance of an emergency plan by; allowing utilities toisubmit_their own plans where;the states and localities are s

t 9/1 fAs part:of its argument _that LILCO has asserted no author-ity before : implementing its utility plan, 'the Intervenors cite several, cases--for_ the proposition that the Supremacy. Clause does-not grant that authority.

See Intervenors' Answer at 13.

LILCO has not asserted'that the Supremacy Clause in and of itself allows LILCO to implement its Plan.

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[T not participating or submit inadequate plans.10/

The interpretation of the Authorization Acts that is urged upon the Board by the Intervenors, that the Acts "merely" au-thorize the NRC to review such plans (but apparently not to ap-prove-them regardless of their merits), Intervenors' Answer at 4,

n.2, if accepted, would make that review meaningless.

The Brenner Board concluded as much in the Board's opinion denying 1

Suffolk County's Motion to Terminate.11/

2.

LILCO's Legal Authority Arguments Have Been Well-Defined The Intervenors suggest that the appropriate way to pro-ceed is for LILCO somehow to rewrite its emergency plan to as-I sert that LILCO is authorized to conduct emergency planning, 10/' Judge Altimari concluded this as well in his decision in Citizens.

See Part I above, quoting from that decision.

11/. In the cover letter on behalf of the Intervenors to the Board transmitting the Intervenors' Answer, counsel for Suffolk County asserts that Judge Altimari's decision in the Citizens suit'" rejects the grounds upon which the Brenner Board found that preemption might have occurred."

In fact Judge Altimari's decision supports the' Brenner Board's decision on the County's Motion to Terminate.

The Brenner Board found that the Suffolk County resolutions, to the extent they were being used to pro-hibit LILCO from submitting its own plan for review by the Li-censing Board, were preempted by-federal law.

Judge Altimari determined that the resolutions were valid because they did not attempt to regulate or prevent LILCO's utility plan.

The court ruled that the Nuclear Regulatory Commission, not Suffolk Coun-ty or New York State, would determine whether the utility plan is adequate.

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t l-and then for the parties to begin again briefing the legal au-g thority. issues from square one.

The record developed thus_far on Contentions 1-10 is so complete and so lengthy that the only l

reasonable explanation for the Intervenors' suggestion is that they wish to continue to delay the conclusion of this proceed-ing in any' manner possible.

While accusing LILCO of an "un-seemly" footrace'because it has renewed a motion that has been i

pending before this Board for months, the State and County seek to stall this Board while trying to thrust the same federal preemption issue before the state court, where it has not yet been briefed or addressed in any way on the merits.

LILCO has t

stated repeatedly.in its briefings before this Board that the Atomic Energy Act, 10 C.F.R. 9 50.47(b) and (c), and the 1980, 1982-83, and 1984 NRC Authorization-Acts allow a utility to plan for and implement an emergency response for accidents at a nuclear. power plant notwithstanding state and local refusal to r;

respond, and the Intervenors have responded to that argument.

No. clearer statement of LILCO's position can be found.

Indeed, the Intervenors and the NRC Staff have been on notice since L

March of 1983, when LILCO filed its first brief on preemption in response to the Intervenors' motion to terminate the licens-ing proceeding,.that'it is'LILCO's view that. federal law allows

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P LILCO to. proceed as it has done with offsite emergency planning

.given New York State and Suffolk County's refusal to do so.

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{_ _

1The Intervenors: latest suggestion that LILCO must,somehow go back a'nd rewrite-the Plan to make clear that which has been

~

-briefed forfover two years before this-Board makes-no sense whatsoever.

3.

- No Further Briefing on Contentions 1-10 Is Necessary l -

'As to the suggestion that following some rearticulation-of

LILCO's~ position, briefing should begin anew on the legal au-thority. issues,.it-is well'to point out that^over 500 pages of

~

= legal briefs have already been filed on:the issue of.whether LILCOlcan~ proceed with its' emergency plan, over 200 pages of

.. hich'were filed by Suffolk County and New-York State alone.12/

w

.These filings: stand in1 stark contrast to'the Intervenors' as-e

-sertion in its March'19 Answer that the legal authority issues ihave not-'yet been adequately addressed 13/

b 12/ ~ See footnote 1,'hbove.

13J LIn its Renewed. Motion for: Summary Disposition of Legal Au-

'thority Issues on' Federal-Law Groundsp Feb. 27, 1985, at 10-11, LILCO asserts that in its-view.further briefing is not re-

' quired, but requests, should the Board decide:otherwise, that

~

1the Board defineispecifically any narrow issues on which it wishes to receive.further. briefs from the parties, and set lim-t its < of:s time. and' length on -those ~ briefings.

We continue to-urge

~

' ~ that the-Board do so,f particularly in light of the Intervenors' (position;that briefing has not yet seriously begun.-

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B.

The Preemption' Issue Is Pending Before this Board, 2

And Should-Be Decided By This Board The Intervenors next argue that it is the state court and not.this' Licensing Board that should_ decide the preemption issue pending before this Board.

Their argument-is based on-three incorrect _ assertions:

.(1) that this Board sent the is-

~

sues of' federal preemption to the state court; (2) that the Federal District. Court in denying LILCO's removal position man-da'ted.that the federal preemption. issue must be-raised in' state court; and (3) that LILCO has " repeatedly and consistently raised the federal preemption issue in the State Court Ac-tions," Intervenors' Answer at 15.

1.

The Board ~and the Federal District Court Have'Not Ordere'd that Federal Preemption Issues-Must'Be Decided By-the State-Court LAs[to the notion that this federal Licensing Board and the.

-Federal ~ District' Court have given a mandate to the state court

~

to. determine the federal preemption issue, the Intervenors pre-

?

viously raised that notion in their briefings urging the Li-censing Boardinot to reach the preemption question last fall, 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, at-13-17, and LILCO responded at that. time.

LILCO's Reply to the Responses to Its

• -V r

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.Motionifor! Summary Disposition on Contentions 1-10, Oct. 15, 1984; at_3 n.2.

That response need only be-summarized as fol-lows.

a.

The Licensing Board As to the. assertion that the Licensing Board has insisted thatLthe state court decide 1 Contentions 1-10, only the Licens-ing Board can define with finality what it intended in sug-(gesting that the_ parties take the state-law issues to state

' court.

It appears to-LILCO that what was intended was that is-sues'of state law -- that is'the first part of each of Conten-tions 1-10 -- be determined:by a state court.

The clear lan-

.guage'of the. Board's statements suggesting that~the parties

might' take the. state law issues to state court (see e.g.,

Tr.

706)';.the Board's decision sdbsequent.to receiving briefings

.from the parties on preemption that it would. refrain from fur-ther-decision pending a decision by.the state court.because_it

'did not need to reach preemption unless and until.the state

~ court struck LILCO's activities as illegal under state law; and the '-lengthy 'further - briefings on the legal authority issues as

a. result of_the Board's October 22 Order do not indicate any intent by this Board to abdicate jurisdiction over the federal-

-law component'of Contentions 1-10 to a non-federal forum.14/

14/. Indeed,_ if the Licensing. Board thought that Contentions 1-10 were not properly addressed by it, it could have dismissed the : contentions.

m~

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'Thie complaints: filed'in New York State Court by Suffolk' County, New YorkLState,'and the Town-of Southampton, which delineate actions ch'allenged asra matter of state law but make:no mention

of any federal preemption issues, and the NRC Staff's Response l

-

to'.LILCO's Motion.for Summary Disposition, pointing out that n:

I the state 11aw issues pending before_the state court may very i

'well be decided in:LILCO's favor'because on the face of the statute cited by_the Intervenors it did not appear that LILCO's actions contravened those statutes, support LILCO's understand-ing of the Board's statements.

b.

The Federal' District Court As LILCO previously-discussed in its October'15 Reply,

[

Judge Altimari-did not'. mandate that.the preemption issues-raised in: Contentions.1-lO must be determined in state court.

Judge. Alt'imari. merely found 'that as a jurisdictional matter, the; issue ^ofl federal preemption (which did not appear on.the face of-the Intervenors' state cou'rt. complaints) could be

~

raised as an affirmative-defense.

In Judge Altimari's' view unde'r Franchise Tax,~ supra, federal question jurisdiction-for removal'from state to' federal court cannot be based upon feder-alEquestions that arise as de'fensos rather than on the face of complaints.

Inlso' ruling,-the judge noted that in his view it would have made-more-sense.to retain jurisdiction of the case m '. -.--

_ w

.and that the'_ federai question of.. preemption "could'!' be raised f efo're: th's state. court.

He did not rule that it must be raised-b

beforeftheistateicourt, or, as the Intervenors imply, that the

~

state; court has1 exclusive jurisdiction over this federal issue.

3Nor,did he-suggest in any fashion whether~it should or could be raised before thel Licensing Board.

?TherIntervenors' continued insistence in characterizing-

_ _both:the Licensing-Board's and. Judge Altimari's decisions as requiring preemptioni oLbe heard before.the state court'is

~

t

~

1 merelyr an attempt--to-bolster the.Intervenors' forum shopping.

.It must be remembered'that it.was the Intervenors, not LILCO,

~

who'first raised the-lega1' authority issues and they raised-

'them beforeithis Board,1not in state court.

L2. ' TheLPreemption[ Issue Has Not~Yet Been-1 Reached In State Court

^-

-The, Int'ervenorsiassert-thatLLILCO is.asking this Board "to x.._

-race.to:decideTthelve'ry issue that' LILCO has-already-placed at

~

l issue Lin another.forumi[ state court]. "

This suggestion of~du-

-plicityton LILCOs part'is ab'surd.

First, LILCO has never-

= asked._the state court to address the federal' preemption issue 4

on?the merits,1.and the Intervenors.know it.

Second, LILCO's

A-+

request lthat this Board decide issues that were raisedLin' July

^

fofL1983,cbriefed!in over~500 pages of legal pleadings between

LAugust and.Novemberfl984, and pending since the close of 5

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l briefing for overLfour. months'now, is hardly an invitation ~to a race.

~ Third,_it is the Intervenors, not LILCO, who have at-

~

Ltempted.at every turn to_do all possible to see to it that pre-e'mption issues areEdetermined by-the state court judge and not

~

- (this; Licensing Board. 1The state court has thus far rejected

-Suffolk~ County's' continued invitations to determine the'preemp-

. tion. issue.

The-issue of LILCO's71egal authority was raised first be-

fore this-Licensing. Board by.Suffolk-County in June of 1983.

Those contentions-were objected to by LILCO-on the grounds that 1

'.they_had already been decided.when the Brenner Board rejected

Suffolk County's1 motion to terminate the licensing proceeding b,

,and: accepted LILCO's' argument of preemption.

Thus LILCO has 1 asserted the issue of. preemption in response to the legal au-

.thority; contentions before this Board:for almost two: years.

The Intervenors waited'nine months-to assert their state law ~

clain s lbefore state court;- during this ' time. Contentions ?l,

-were pending before this Board.

In filings before the state court subsequent to remand,'LILCO has asserted repeatedly that

.theistate' court judge should decide matters of state. law.

~LILCO has noted that it is not waiving any preemption defense itamay haveibeforeistate' court, and-has continued to do so as a.

i

[ matter;of good pleading-to' avoid an argument.by the Intervenors

before this Board that LILCO has waived the preemption C

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~ Interestingly,Lthe_Intervenors'are now attempting to argument.

~ argue that, because.LILCO has noted it does not wish to waive A

'its preemption' argument, LILCO cannot now obtain a decision be-

~

ffore this Boar,d that clearly must be reached in order to re-

~

Lsolve contentions tha't:were raised by Intervenors.almost two

years ago.

[

Suffolk! County, in. contrast, has. repeatedly urged the

. state. court to reach' federal preemption, and the stateLcourt

{thu'Ifar hasJdeclined to do so.

The decision-issued'by.the s

st'ateJcourt-reaches onlyfstate law issues.

LILCO has filedJa 1

~ draft partialTjudgment before the state court, as provided under"New. York-Procedure, with a cover letter explaining that_

further. proceedings :before :the state court judge would -include

..afmotionsby'LILCOIthat the state court abstain from any further decision regarding preemption issues because th'at-issue has.

been;placed/ squarely before this Licensing Board and this Board

is ':the appropriate. forum:in which to-determine the1 meaning of the NRC's_.enatling.act and regulations.

~

- cIn short;1Suffolk County raised contentions before this

[

fLicensing Board almost'two years ago questioningLLILCO's' legal-

~

cauthority.under state-law.to implement its-Plan and therefore Titsyability,under federal law to meet NRC requirements; took

.the:stateilaw' portions of:those contentions on a-somewhat dif -

iferent legalf theory..toj a Lstate court-nine : months later; h

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asserted,jon LILCO's-attempt to remove the state law issues to

' Federal Court, that the: federal law issues were not part and parcel'of the stateilaw issues'and did not require removal; urged,Ctotal'ly inconsistently, upon remand to the State Court,.

.that;the= State Court _must consider the' federal issues and the

' state law-issuesitogether, and now urges.this Board not to de-cide' federal. issues'that the state court has not yet reached.

Having_maneuvere'd unsuccessfully thus far in every way possible to ensure,thatithe federal preemption issue is decided in state Lcourt-rather.than a. federal forum, the Intervenors'are now ac-

.cusing LILCO of. forum shopping.

At the same time, the Interve-nors'have given-this Board not one sensible reason why this Board'cannot decide-issues surrounding the NRC's enabling stat-

.utefand re~gulations which-were raised before it by the Interve-nors.

Their arguments should be rejected.15/

v m

15/L The.'Intervenors-set out certain alleged " facts" regarding the assertion of the preemption defense before the state court both-inD.their pleadings and in an_ affidavit attached to their Answer submitted by David ' A.

Brownlee, an attorney with the. law

-firm representing Suffolk County-before.this' Board and in State Court. ~Allethe references to these " facts" can be found in pleadings filed before the state court, the-Federal Court, and

.this1 Board, in decisions issued from these forums, and in tran-scripts of public hearings before these forums.

Mr. Brownlee's

affidavit does.not provide any true " facts" in response to a

~'

. motion;forseummary-judgment, but-rather takes the opportunity

'merely;to# characterize: pleadings, transcripts of argument, and opinio'ns. that.are -already in

• the public record.

Not only are y.

~

some of those; characterizations inaccurate,'but they are inap-

- propriate.for an affidavit purporting to be a factual asser-(footnote continued) 1

^

I

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a:

T III'.

-Response to NRC Staff:

State Law Is Preempted 4

a 1The" NRC; Staff; agrees-with-LILCO _that the ' Board shoul'd: de-7

~

cideoContentions 1-10Lase. matter.of federal-law.

In the tcours'efof' agreeing,' however,.the?S'taff has made a number'of ob-s serva'tionssiboutCthe meritsgof the fe' derat preemption issue,

. suggesting,--inLfact,Lthat state law is not preempted in this

~

case.

These observation's'are'found in footnote 9 of the NRC

~

? Staff. Response,-which. reads-assfollows:

See NRC. Staff Answer,-October 4, 1984,- at L15.In footnote'23 ofLthat Answer, it is stated that the~ subject state, laws may be-

-found to actually conflict with Federal law aand be preempted, although drafted for a-Evalid purpose,Tif (1)..they.were applied with

.thenpurposeJof regulating radiological health;and-safety,-or.(2) their application

-frustrates;the purpose andEobjectivesLof Congress., See-Perez v.

Campbell, 402 U.S.

- L637 (1971)'.

In. Pacific Gas & Electric Co.

v.-Energy Resources Commission, 461 U.S.

190, 205-213,J222-23,.75 L.Ed.2d 752, 766-771, 776-77 (1983),- the Court. concluded; that'although-the purpose of the Atomic En-

-'ergy Act (AEA), as amended, 42 U.S.C.

(footnoteJcontinued)

Etion.

"[T]he' signature of~a person signing'in a representative

_ capacityc[a" document-filed.with'this Board] is a-representation 7that the document has been(subscribed in the capacity specified

'with-full; authority, that hethas read it and.knows the con-

.. tents,ithat to the=best of-his knowledge, information, and be-W7 7

-lief the~ statements-made'in it are true, and that it is not in-

terposed"for! delay,"=10 C.F.R. 5 2.708(c).

Consequently, it is iatibest unnecessary'and at worst improper'for attorneys repre-senting" parties'before,this-Board to-file separate affidavits

'that propound legal. arguments.

i.

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rn

.E_e n.

-2'9-

. 55 2011:et seq.,cwas to encourage the.devel-

~

opmentgof nuclear powerfplants, this'was not to-be1 accomplished,"at all' costs" and.over-s

~.

ride theLtraditional areas of state economic

. regulation.

.In Silkwood:v.'Kerr-McGee.

y~~

-Corp.,

-U.S.

, 78:L.Ed.2d-443,.458, i

f

~~;(1984), the Court 1 emphasized that'although' L

Congress ~ intended to-encourage the. develop-mentiofsthe peaceful uses of nuclear; energy

!itidid not11ntend to override traditional

. state' powers and preempt:the award-of puni-

, ~

tive_. damages under' State > law to those in-x Ljured by radiation'.

Inlits Statement of

. Consideration, " Emergency Planning,".45. Fed.

Reg. 55,402, 55,404 (1980), the Commission o

(recognized that state and-localigovernments

might/frust' rate; Congress' -encouragement.of.

'the development ofLnuclear~ energy by not~

cooperating inDthe' development of. emergency response. plans ~.

See NRC Staff Answer,

. October 10, 1984.- In Cuomo v.-LILCO, supra, l'

the:New York' court determined that the gen-ieral1 statutory scheme'ofiNew York governing

the. exercise of-powers ordinarily ~ exercised by the.. police prevented LILCO from carrying Lout its; emergency plan without State or 4

^

local ! government: cooperation.

It_does not

,appearEfrom.the? foregoing _that the determi-nation that LILCO may:not exercise the E

JState's; police' powers 1was;made particularly for;thel purpose;of regulating radiological-t j health and safety or that%1aws have been ap-h.g plied'solas;to frustrate;the_ objectives-of

. Congress in promoting-the development of nu-34 clear: energy; consistent;with the states' ex-

.ercise of,their traditional powers over non-nuclearlactivities.

4 sThisjis;not to indicate whether Congress has the" power to legislate.that private entities created under state law have the authority.

.to carry out emergency response plans re-(.gardless-of State law.

Cf. Federal Energy

-Regulatory Commission v. Mississippi, 45 U.S. -742, 758, 764 (1982); Washington v.

Washington -State Commercial Passenger Fishing Vessel-Ass'n,- 443 U.S.

658, 695 (1979).

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?NRC Staff Response to LILCO's Renewed ~ Motion for Summary Dispo-

-k J4; sition o'fl Legal' Authority Issues'en' Federal Law Grounds, Mar.

'19,<1985.;at.6 n.9.

3 l

The NRC Staff's. views.on'.the interpretation of statutes u;>

arui. judicial-d$cisions.'are -entitled to no more weight than

<those..of any-other-party.

Public Service Co. of New Hampshire f(SeabrookiStation, Units 1 & 2), CLI-76~-17, 4 NRC 451, 462 L

1

- (1976);, Consolidate'd: Edison Co. of New York (Indian Point,'

~

' sfUnitsf1,72.&:3)',..ALAB-304', 3 NRC-1,.6 (1976); Southern

'4'

! California Edison Co.

(. San Onofre. Nuclear Generating Station,

[

' LUnits: 2 & 3 )', - ALAB-268,,1 NRC.383, 399 (1975 ).

Nevertheless,

~

the* Staff,'s op' inion needs to:be answered,oif only'because it is theronly jarring ~ note-in what LILCO believes to be a virtually-

open-and-shut case for preemption.

We must conclude that the Staff.-has-simply misread the case law.

The Staff begins;by proposing two tests for finding an t_

' " actual _ conflict" between:stateJand-federal regulations:

-( 1)~

the: state law' tare applied with the s

~ purpose!of regulating radiological

~

health?and safety,.or S-(2);-the application-of the state laws ~frus-

~

trates_the purposesLand objectives of s

Wy, Congress.

,This.Lstatementnof.theEtests is.apparently drawn from the

? Staff'sfreading'o'f Perez"v. Campbell, 402 U.S. 637 (1971).

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-However, the conventional. statement.of the tests for pre-emption,=fdrawn from Silkwood v.-Kerr-McGee Corp., lO4'S.Ct.

~

615,.621 (1984) (hereinafter'Silkwood) and Pacific Gas & Elec.

'v.~

State' Energy Resources ~ Conservation & DevelopmentLComm., 461

U.S.'190, 103-S.Ct. 1713, 1722 (1983 ) -(hereinafter :PG&E), is as was stated in'LILCO's Motion for Summary Disposition lof Conten-

~

Ltions 1-10-(the " Legal ~ Authority" Issues), Aug.

6, 1984, at 8:

'A.

.If. Congress evidences an intent to occupy a

.given field,;any state law falling within that field is preempted.

~

B.

If. Congress has not entirely displaced state (regulation over the matter in question, statellaw is still preempted to the extent it "actually. conflicts" with federal law, that-is:

1.

'When it is impossible'to comply with both state and federal law, or 2.

When-the state law " stands as an obsta-cle to the accomplishment and execution of-the full purposes and objectives of Congress."

-- Silkwood, 104 S.Ct. at 621.(1984); PG&E, 103 S.Ct. at 1722.

LThe NRC Staff's second test (" frustrating the purposes and objectives of Congress")-is the Hines test, the same as LILCO's B.2"above.

However, the Staff's first test (the " state pur-pose" test)L has to do with " occupied field" preemption (A above), not " actual conflict" preemption.

The first " actual

-conflict" test-(physical. impossibility of complying with both Estate and federal law) the Staff does not address at all in its footnote:9.

L

Letius now go through each of the three tests and show why the Staff is' mistaken.

A.

Phycical Impossibility

.The physical': impossibility test is the one the Staff fails to address.. The essence of the-matter is this:

NRC regula-

..tionsirequire LILCOlto have an offsite emergency plan; New York

-law,'according to Judge'Geiler's decision, says that LILCO is

forbidden to have~an offsite emergency plan.

LILCO'cannot com-

_ ply with~both.

The only possible argument in response is.that LILCO can

comply with.both'if it abandons the'Shoreham plant.

This argu-ment fails,:as LILCO has pointed out,1s/ because it_would also make'a nonconflict out of the very example given by the Supreme

' Court in the seminal 1 case-that is always cited for the " physi-cal impossibility"' type of preemption,-Florida Lime & Avocado

~

Growers,-Inc. v. Paul, 373 U.S.

132, 143 (1963).

_One can al-most always' avoid a conflict by ceasing the regulated activi-

.ty.17/

.1p/

LILCO's' Motion for Summary Disposition of Contentions 1-10

'(the;"LegalLAuthority" Issues), Aug.

6, 1984, at 37-38; LILCO's

~ Reply to the Responses to its Motion for Summary Disposition on

Contentions-1-10, Oct. 15, 1984, at 32-33.

17/. For example, in Ray v. Atlantic Richfield Co.,

435 U.S.

151 (1978), aLstate law requiring oil tankers enrolled in the (footnote continued)

y, it +

14 '

a.

B.

Frustration of Purpose 1:

'Another test of'an "a'ctual conflict" is met if the-state law "standstas an obstacle to the accomplishment and execution

?of:theifull purposes and-~ objectives of Congress."

The NRC Staff addresses only one of the federal purpo'ses-that LILCO

' contends. state law is= frustrating, namely the purpose of-Lpromoting' atom ~c energy.

More important purposes, from the st'andpoint of-the-case, are the purpose of having uniform fed-

'eral standards.of radiological emergency planning 18/ andi even g

more specifical-ly, the-purpose of providing emergency plans, by whomever implemented, so as to ensure safe operation of. nuclear

plants.

r.

-Indeed, all the legal analyses of preemption boil down to a' search for Congress's intent.

And it is undeniable that Con'-

fgress intends'to? allow utility plans so as to prevent precisely

.(footnote' continued)

' coastwise' trade to have a local pilot on board was found to be in;" direct conflict" with federal regulations requiring vessels

,to have a-pilot' licensed-by.the Coast Guard and prohibiting Latates.from requiring pilots to obtain a state license in addi-tion to a federal one.

435 U.S. Hat 158-59.

Obviously this conflict'could have been avoided by having two pilots on board or by quitting the coastwise trade.

Nevertheless, the state

-law was' held preempted.

dy@/' - See LILCO's Motion:for Summary Disposition of Contentions 11-10 (the-" Legal Authority"' Issues), Aug. 6, 1984, at 15-16, 40-41.

k

r

..what Suffolk County and New York State are attempting in this

. case -- the shutting down of safe nuclear plants because state or local governments do not have: adequate emergency plans.

The

. evidence is in the legislative-history of the three successive Authorization Acts that authorized " utility plans."

For-exam-p 3.e, the following is from the House Conference Report on the

'1980 Act:

The conferees sought to avoid pe-nalizing an applicant for an operating li-cense if a State or locality does not submit an emergency response plan to the NRC for review or if the submitted plan does not satisfy all the guidelines or rules.

H.R.

Rep. No. 96-lO70, 96th Cong., 2d Sess. 27 (1980),

L reprinted in 1980 U.S.

Code Cong. & Ad. News 2270.

~

Congressman Lujan said this about the 1982-83 Act:

Frankly, these provisions -- allowing a utility. to file lui onsite plan for a tempo-rary operating license, and allowing the NRC

'to determine that an adequate offsite plan of a_ utility exists in the absence of an FEMA-approved State or local plan for a final, full power license -- were included I

to insure that Federal preemption in the area of nuclear power would not be frustrated in the emergency planning area by foot dragging on the part of a reluctant State or locality.

The wisdom of including such federal provisions is underscored by the situation which we understand exists in one district where a county has sued to try to enjoin its_ State from approving an emer-gency plan.

The clear language of the stat-ute and our intent throughout the legisla-tive process was to insure that a plant could operate if there existed some plan --

State, local or utility sponsored --

providing. reasonable assurance of the public health and safety.

L

q 128 Cong. Rec.!E5060-61 (daily ed._Dec. 10, 1982)-(emphasis Ladded).

-The following is from the, Senate report on the 1984-85 Act:

.In the course of the Subcommittee's Lhearings, however, two.potentially signifi-cant problems have been raised.

First, wit-nesses; expressed concern that under-the ex-isting. process, state or local-governments,

'by-acting or_failing to act, could keep. FEMA and the NRC fronLevaluating an emergency

- preparedness plan for a nuclear powerplant

-_that.was prepared or submitted, or both, by

-the applicant or licensee, and, as a result, prevent the NRC from issuing an operating license to.such applicant orilicensee if the NRC. determines that the plan submitted by the applicant or licensee provides reason-able assurance that_public health and safety is not endangered by operation of the plant.

The' Committee reiterates _that the adop-tion of this provision.is intended to recon-firm the' authority of the NRC and FEMA to evaluate an emergency-preparedness plan sub-mitted by an applicant or licensee pursuant to this section.

In 1980, the Conference Report on the fiscal l year 1980 NRC Authorization Act-(Pub-lic' Law 96-295) stated that:

L_

t (T]he conferees sought to avoid penalizing an applicant for an operating license if a State or locality does not submit an emer-gency response olan to the NRC for review or if the submitted plan does not satisfy all.the guidelines or rules, the compro-mise permits NRC to issue an op-erating license if it determines that a. State, local, or utility plan, such as the emergency pre-paredness plan submitted by the

~1 51 i U,

^ '_

(surance-that the public' health and

applicant,.provides reasonable.as--

w safety is.not endangered by op-

~

eration of the facility.

(H. Rpt.

1.

3

~

96-1070, p. 27)

"~

.. y LUnder:section 108 of this bill, the Committee expectsithe NRC and FEMA to under-take a, review of all. emergency preparedness plansisubmittedifor evaluation,..regardlese Tof:whethercthe plans have been-prepared or

. submitted, or_both, by a-governmental' entity

- or by:the-applicant:or licensee for such fa-cility. _Ifia state:or localityLdoes not.

. submit an emergency ~ response plan for re-

~

, view,for:in the absence of a state.or local emergency preparedness plan which has_been

' approved by FEMA,_:this provision provides

-that the NRC still may issue an operating, licenseLif'it: determines that.a plan pre-

_.-pared.or submitted, or both, by an applicant cnr licensee:provides reasonable assurance 1that.public health and. safety isLnotrendan-

_ge' red by operation of the facility.

S. Rep.98-546, 98th Cong., 2d-Sess.-14-15 (June 29, 1984).

i n

Congressman Pashayan said thistabout the 1984-85 Authorization

Act

I-applaud this provis' ion.which I view

'asiclearly confirming what is already_in the law:

That a plan submitted-by-a utility will satisfy the Atomic ~ Energy Act's re-quirements.

3

. I also view. existing law as-providing authority-for the-Federal: Govern-ment to implement 1anyfutility plan submitted-

-under.-this provision.

I thinkethat both concepts'-- that of utility' submission, and

~g

.thatcof. Federal implementation,~of. emergency plans ---are.important, and I am happy to

sees them further reinforced by this bill.

BothJare-important_because they add up s

lto'one central principle:

The Congress does 1

not intend to allow States or localities, by

. refusing to participate in the emergency

' planning process,'to prevent a completed v.

~

t.

~-

i

?!

+

>~

^

37 -

7 I

' facility from operating.-

-A refusal.to par-35 ticipate:could take-the formielther of a re-I fusal to1 submit or a-refusal to; implement a

~

Lplan'.7sWith regard to a refusal-to submit a

/

plan,

.the bill providesEexplicitly'for'a.

? remedy:

alutility. plan 1will suffice.

With

-regard to'.Ja; refusal.to. implement, the bill "is1notTexplicit, but the' intent of Congress is= clear:- We cannot~ allow a refusal'-to-

. implement to-be-used to prevent the-operation ofaa facility, for to do so would-

~

make a mockery of-the provision.

'It would

' allow' states and localities to achieve-1through.afrefusalito, implement a= plan what we haverexpresslyL. forbidden'them toido by

^

refusing to submit'one.

130 Cong. Rec..H.-12;196;(daily ed.iOct. 111, 1984)'(emphasis =

~

t added). LSee also LILCO's'Mo' tion for Summary Disposition of Contentions 1-10-(Thel" Legal Authority" Issues), Aug.

6,

1984,

at113-28.

-Given.these, Jand the other, unequivocal Lstatements of Con-

gress's purpose, thereican-be=no' doubt that New York law is.

preempted in thisicase.

If New York State enacted a. statute sthate said:"' utility plans'.are' prohibited ~in this state," it 3.

wou,1d'certainly be preempted by the: Atomic Energy Act and the

'NRC; Authorization Actfas frustrating the-goals and objectives-

+

1

'of; Congress.

And:that.is. precisely the law of New York, as now interpreted by Judge Geiler.19/

1y -I t is not entirely clear whether Judge Geiler's decision

'i:s based:on the precise statutes cited in the state court com-plaint'(some of which are also cited in Contentions 1-10), on a l broad theory of' the exclusivity of governmental police power, or on both. ;LILCO-has asked the judge for clarification.

rc g

a 4

The'Intervenors',-and perhaps the-NRC' Staff, are.of the Lview that the NRC's: authority to review utility plans is an 11-

.lu'sory one,trevocable at the:will of the-states.

They argue

'that= Congress'gave the I<RC the right to consider utility plans,

~

but only_if.the state either approves or is indifferent; if the s

"s' tate objects,Lthen the NRC's consideration of'a utility. plan

is;a1 futile exercise.

This view.of congress's intent is simply' not credible;-suffice.it to say that'LILCO has discovered no

eviden~ce tcr support such an empty construction of every Autho-lrization~Act passed since the post-TMI emergency planning structure 1came into effect ln 1979-80.

dven taking into account only the purpose of promoting

= atomic energy,.theLNRC Staff?s analysis fails.

The Staff has iswo bases ~for believing.the frustration of this purpose does not; result 11nLpreemption.

First, the Staff notes, from PG&E

. an'd: Silkwood, that thelpromotion of nuclear energy is not.to be.

~

x 1had "at'all costs"-or override " traditional"' state powers.

But the idea that." traditional' state areas" (PG&E, 461 U;S. at 222) are1 entitled to a -p' resumption againstipreemption has lost any_-

force-=it~may have had in light of Garcia v.

San Antonio

Metropolitan Transit Authority, 105 S.Ct. 1005 (1985).

More-over,'-in PG&E_the traditional state area was economic regula-EtionDof electric utilities and in_Silkwood tort law; for both

.these areas. the. Court found clear evidence of a Congressional i

O%

^

4 1

T

[ y,,

=

-39-:

E n y-JintentitolpreserveLstate authority.

In the present case the.

1; loppositefsituation exists:

there is.no. traditional state hege-p p

"monyfover2 nuclear safety? but rather exclusive federal authori-ty;nand : Congress has, expressly authorized, and.the NRC re-G

~ '

l quired, what the. state'now forbids.

~

The Staff's second basis is a passage from the Federal-t c:

.c

. Register noticefof.the Commission's emergency planning regula-

~

tion.

The Staff;says-that'the NRC, when it enacted-the emer-

.gency planning regulation,L recognized that state and local ~ gov--

7 h

'ernments'might frustrate. Congress' en'couragement of nuclear i

energynby not cooperating in emergency resonse plans:

h:

'The Commission. recognizes.there is a possi-

~

bility~that the1 operation of=some reactors-7

may be affected by this rule-through-inac-F F

tion of State'and local 1 governments or an t inability:to_ comply with these rules.

The Commission believes that.the' potential re-L 1striction.of plant operation by State and local (officials is not:significantly differ-ent-in. kind or effect from-the means already

~ ~.

available.under' existing ~ law to prohibit re--

actor operation, suchlas. zoning,and land-use-E laws, certification of public convenience h

-and-necessity,~ State financial-and rate con-

~

i

~

-siderations-(lO C.F.R.

50.33(f)), and Feder '

'al: environmental laws.

The Commission

. notes,~however, that such considerations

. generally relate to a one-time decision on

. siting, whereas this rule requires a period-

ic renewal 1of State and local commitments to q[

emergency preparedness.

Relative to apply-ing this; rule.in actual practice, however, b

the Commission need not shut down a facility j.

until all factors.have been thoroughly exam-ined.

The Commission believes, based on the record created by the public workshops, that L

State and local officials'as partners in L

this-undertaking will endeavor to provide

' fully for public protection, i

i.

!Li-i L

m- -

g

~ -

~

[45.-Fed.-Reg. 55,402, 55,'404,. col. 1 (Aug. 19, 1980).

'But, as LILCO pointed'out in its Brief-on Suffolk County's Motion to

~

. Terminate this proceeding and.LILCO's Reply to the Response to its Motion ~for-Summary Disposition on Contentions 1-10 (Oct.

15, 1984), at 28-29, the history of the regulation shows that de facto noncompliance with NRC safety standards was being re-ferred to, not-de jure state prohibitions on meeting those standards.20/

The Brenner. Board agreed with this analysis.

Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-22, 17 NRC 608, 623-25, aff'd, CLI-83-13, 17 NRC 741

-(1983).

Moreover, the. Commission's' reference to " inaction" and

" inability" of state and local governments.(as opposed to hos-tility and act'ive opposition), plus the Commission's belief that states and. localities would cooperate, show that the pres-ent situation. simply was not being addressed in the passage cited above.

C.

State's Purpose The Staff's third test, whether the purpose of the state 20/."The staff recognizes this potential for a third. party

-defacto-[ sic] veto power.

The Commission is also aware of this."

SECY-80-275,-June 3, 1980, Enclosure L, Analysis of ACRS Comments, at 8.

LAn industry witness, Mr. Owen, also re-ferred.to'a "de facto veto."

Statement of Warren H.

Owen, June 25, 1980, at 8, bound.into transcript of NRC June 25, 1980, ff.

Tr. 131.

e = --

1

-'% t law is to regulate radiological' health and safety, is also a misreading of the case law.

.The. Staff suggests that because the New York legislature and the New York, court in Cuomo v.

LILCO did not'act "particu-larly.for.the purpose of regulating radiological health and safety," the exercise of the state' laws is not an invasion of a preempted field.

The fact is that the Staff has misread Pacific Gas &

Electric, or perhaps Perez,21/.to say that a nonradiolog'ical 21/

In fact, Perez is notable for rejecting the rule of two earlier cases that a state law is not preempted so long as it's

. pu rpo s e. is not:to frustrate federal law:

We can-no longer adhere to the aberra-tional doctrine of Kesler and Reitz that state law may. frustrate the operation of federal law as long as the state legisla-ture in passing its law had some purpose in mind other'than one of. frustration.

Apart from the fact that it is at odds with the approach taken in nearly all our. Supremacy Clause cases, such a doctrine would enable state' legislatures _to nullify nearly all unwanted federal legislation by simply pub-lishing a legislative committee report articulating some state interest or policy -- other.than frustration of the federal objective -- that would be tan-gentially furthered by the proposed. state law.

. Perez, 402 U.S.

at 651-52.

Instead, the Court approved the Hines-test (from Hines v. Davidowitz, 312.U.S. 52, 67 (1941))

' of. determining whether a challenged state statute " stands as an

- obstacle to'the accomplishment and execution of the full pur-poses and. objectives of Congress."

Perez, 402 U.S.

at 649.

purpose.will save a state law from preemption.

Nothing could be further from the truth.

A' state's purpose in enacting its law is immaterial, if

.the effect of'the state law is to regulate the construction or operatiort of -a nuclear power plant:

At the outset, we emphasize that the statute does not seek to regulate the construction or operation of a nuclear powerplant.

It would clearly be impermissible for California to attempt to do so, for such regulation, even if enacted out of nonsafety concerns, would nevertheless directly con-flict with the NRC's exclusive authority over plant construction and operation.

- PG&E, 103 S.Ct. at 1726 (emphasis added).22/

That is, if the

' boundaries of the preempted field are clear and the state is 22/

Accord, State Dept. of Env. Pro.

v.

Jersey Cent. Pow. &

Light,-351 A.2d 337, 343 (1976):

A state _may not interfere, directly or in-Ldirectly, with a preempted matter, even.

though the state's proscription may not have.been directed at the particular activ-ity involved.

The Court in Florida Avocado Growers v. Paul, 373 U.S.

132, 83 S.Ct.

1210, 10 L.Ed.2d 248, reh, den. 374 U.S.

858, 83 S.Ct. 1861,.10 L.Ed.2d 1082'(1963) commented:

The test of whether both federal and state regulations may operate, or the state regulation must give way, is whether both regulations can lua enforced without impair-ing the federal superintendence of the field, not whether they_are aimed at simi-lar or different objectives.

[373 U.S.

at 142, 83 S.Ct. at 1217].

u _

yg y x:

~;;

y

~

-4'3--

j trying tol regulate,within.them, the state law is preempted-no

' matter what its. purpose.23/

The state's' nonradiological purpose' entered the-analysis

~

ini PG&E f only.. because !it was"necessary to determir..e the

-The-purpose _(" rationale")

'.+boundariesiof the preempted field.

wasithe-only-way to tell whether the state was regulating need lforspower and' economic concerns:(outside the preempted field)

-or' radiological.-health ~and safety (inside.it).

I n just about any other case one can imagine,24/ particu-I larly.where the; state-law regulates not whether to: build a

-plant but rather;how to-build one or how.or whether to operate:

sit once; built,-aEstate regulation affecting.the operation of a 2

nuclear (plant is preempted.25/

For example, if a state tried i

~

13/

Likewise, it makes no difference what the state's purpose was'if-itsllaw "actually conflicts" with~ federal-law.

See

'PG&E,.'103 S.Ct.. at 1728'n.28 (distinguishing Perez as involving an " actual. conflict").

24/-LIndeed, it appears that the state' law in was upheld'in PG&ELonly because what was. involved was.the "threshhold" deci-sien of whether to have a~ nuclear plant at all.

Even the con-curring justices in PG&E, who would have permitted ~the states

'.to make the " threshold' determination" whether to permit the 1

constru'ction;of new nuclear plants on safety grounds, would not Jhave allowed the. states to make the subsequent determinations of=how to construct and operate the plants.

PG&E, 103'S.Ct. at 1733.

State law that regulates how emergency planning may and may not be-done,'indeed to the point of forbidding emergency splanning altogether, is: clearly regulation of how to operate a

--nuclear plant.

25/ -Silkwood was simply a case in which Congress had, in the Court's-view,.made clear-its intention not-to preempt.

By con-(footnote continued)

_.,__,___,__...-.,__.....L...,___

nem 1

.4-g

'y to' regulate.the1 size of plantistaff (with a purpose'of keeping _

J

. operating' costs down)or-forbade.the installation of a certain

~

type of. safety' valve 21/ (with the purpose of punishing South

Africa',)where the valves were manufactured), the state law s >

iwouldibe preempted.

s

. Such isithe case with ~Shoreham, where the state'sJlaw,-as s

'.interp'reted_by Judge Geiler, Dis that-LILCO may not have an

[

' emergency l plan. LThis;isLa direct regulation of how the-plant

~

is operated:-- indeed, so~ extreme a. regulation'that it prevents Loperation at all.

What1the: state is attempting to regulate

here is unquestionably'the " radiological safety aspects in-volved-in-the_ construction'and operation

of a nuclear: plant,"

s PG&E,'103:S.Ct. at 1723.

This is obvious for three reasons.

, ~

-First, $he. state.is attempting to regulate radiological health and safety (as' distinguished from: economics or aesthetics or W

(footnote c'ontinued)'

trast,Jin the case of-emergency planning Congress has made e

clear its-intention (1) to have uniform-federal standar's and d

!(2)ito allow nuclear plants to operate if there is an emergency

plansthat providescreesonable assurance _that the public health

and safety,is.not endangered.

2s/- As LILCO :has pointed 'out before, - what-New York is at-

~

tempting to do'isLsimply tol ban what the_NRC has required as an essential. safety system for a nuclear, plant, thus requiring by state, law that the plant be kept-too unsafe to meet federal regulations.. :No more blatant interference'with federal author-

':itylcan be imagined:

as PG&E put it, the objective of the Atomic-Energy'Act.is-to~ ensure that nuclear technology be_ safe

.enough for~ widespread development and use.

103 S.Ct. at 1726.

t

, ['

-45.

the'like) by_ definition;'the activity being regulated is an

. emergency. plan for. radiological accidents.

Second, the Appeal' Board has said that emergency. planning

~

is an'"integralopart" of the NRC's regulation of nuclear plants:

Although section 274'of the Atomic En-

ergy Act-provides a framework for coopera-

. tion with, and transfers of authority to, the states for the regulation'of certain byproduct,n source, and special nuclear mate-rials, that_section also requires the Com-mission to retainjall authority and respon-isibility for_the regulation of nuclear power plants and prohibits.any delegation-of that authority.

It'should hardly need be stated that the Commission's emergency response requirements are an~ integral part of the agency's regulation of nuclear power plants, and compliance with those rules determines-

.whether an applicant receives an operating license, not' obedience to additional requirements that may have been adopted by state or local authorities.

Even though

'offsite emergency planning depends upon r

state and local resources, the applicant

-:cannot:be denied'an operating license, if, as in.this case, planning within the NRC-prescribed'EPZs complies with the Commis-

.sion's emergency response requirements.

Pacific-Gas & Elec.

Co.,

(Diablo Canyon Nuclear Power Plant, Units l'& 2), ALAB-781, 20 NRC 819, 831-32 (1984)-(emphasis added)L(footnote omitted).27/

27/~:Diablo' Canyon was not a case of " actual conflict" preemp-tion.

The applicant'could have complied with both state and federal law by simply adopting the state's emergency planning zone, and~it does not appear that the Appeal Board found a pur-pose of Congress that-was being frustrated (although it could be' concluded that the purpose of uniform regulation was).

>.J.

m.< __

x j{ " -

~

~

Third [ Congress has'c1early and expressly placed emergency

' ~

1 planning'within=.the: preempted field (both by requiring uniform ife'deral standardsifor emergency ' planning and by authorizing

~

tuti1ity;pl'ansito. solve' the problem of state and -local lack of As-Judge Altimari recognized in his decision, Con-

,(planning).

igressienactedLthe " utility plan" provisions of the Authoriza c

. tion (Act's precisely:to. solve the problem of the state or. local

j

~

1governmentlthat could not or w'ould not plan adequately.

Con-fgressdre' ject'ed the. solution of having1the NRC write.a plan for

[

~ itheEstate.and adopted instead the provision for utility: plans.

' ESee Citizens for-an Orderly-Energy Policy,-- Inc. v. County of

'Suffolk, No. CV-83-4966-(E.D.N.Y.: Mar. 18, 1985).

To' repeat what we have said before:

the, motive or purpose

.(of;theEstate: legislature-was relevant in PG&E'only to determine

whether'the' state was in the preempted

field.28/; If the state s

liSicliarly-regulating;in.a preempted field (or'"actually con--

flicting" with federal l'aw), state purpose is-irrelevant.

Here~,;as?-theJAppeal Board's'words'above make-clear, the regula-

'[

tion;offemergency p'ianning'is' clearly within the pre'empted

~

field of nuclear. safety _ regulation.

-It might be said that

'Silkwood 1and PG&E are polar 1 opposites of the Shoreham case.

In

'both 'these cases' Congress hadl clearly indicated its intent to 4

~ ~ leave: state regulation outside'the preempted field.

+

E28/= ~ That thei" state: purpose'.' test has been rej ected is demon-strated by;the fact that it is relied on.in the-dissent in

'Silkwood.

Silkwood,. 104 S.Ct. at 628, 631.

v1

..f ' -

.The effect. claimed by the Intervenors (and apparently the H

LNRC' Staff) for. state law is not just to prevent LILCO from op-erating a nuclear-plant -- it-is to supersede the NRC's author-ity to' decide,1fra; plant may operate.

In a slightly different guise, theEIntervenors have simply renewed'Suffolk County's

' February 23, 1983; Motion to Terminate the proceeding.

In re-sponse'to.that motion, the'NRC held that LILCO was entitled to show thatiits emergency plan could meet NRC regulations and

. noted. that - the : Commission, not the State or County, would be fthe ultimate ~ authority:

Further,rwhile there may well be serious is-

. sues.of federal preemption involved in the current offsite emergency planning contro-versy,,we-find it. unnecessary to. reach such-issues at this time because, as we read.the applicable regulatory. provisions, the agency is. obligated to consider a utility plan sub-mitted in.the absence of State and local government-approved plans and.has the,ulti-mate authority;to. determine whether~such a

. submission is sdfficient to meet the prereq--

uisites for'the' issuance-'of'an operating li-Cense.

We intend ~for'[the LILCO Transi-

tion: Plan] to be examined-by the. Federal Emergency: Management Agency, the-NRC Staff,

-and ultimately the Licensing Board.in'the

.pending Shoreham adjudication in which the licensee-will. bear the burden of showing

-that-its plan can meet all applicable regu-n latoryJstandards.

We express no opinion at this juncture whether it will be possible for the_ utility to meet this burden; there is'no evidentiary record before us upon which,to provide-any such or alon.

That record should be compiled, it the first in-Estance, by the Licensi-i;4 - 1, subject to f

later appellate reviet 5, t Atomic Safety L

[

m ce S

(M '.

1 L

~ 37 i 7 -

- c..

and-Licensing lAppealIPanel and the.Commis'-

"sion.

+

e

+

, bong 1 Island-LightingCo.(ShorehamNuclearPowerStation, Unit di

l),;CLI-83-13,yl7 NRC-741,-743-(1983).

Now.the Intervenors

i:-

cf(and2 perhapssthe-NRC' Staff)'take the position that-it is the;

. S$ ate,;and notltheiNRC:at all,-that must decide whether a util-

~fityLplanfis; adequate. :That position simply cannot beisquared s

a -:y;

~

~

twith:theiCommission decision, in-this very case, quoted above.

~

' And Laithough Lit' must alr ady be obvious,- it i should.be ;

e

,inotedjthat' upholding'the Intervenors' position in this case y.

4would be]the-;end of~federalicontrol of nuclear energy.

Any

,4 stateLc'~uld1thereafter-: prohibit' operation of any nuclear? plant o

~

n

~

i ati.any? stage' of-its =. life.

The-suitability.of. emergency plans iwould'be'. subject to. veto:by;the state.

Moreover, it would not-Ebeijust?emergencyLplanning, but all. safety systems,- that.would.-

l nendjup being regulated'by the. state; if:a' state wanted a more

~

=

5EE

.Lelaborate emergency 1 core. cooling; system than NRC! regulations

~

required atrafparticu1ar' plant, or'aflargerjEPZ,,it would only e

II

,L 3

c Jthe utilitylthatLit.would not participate in-Chave:to advise:

wy

~

g; Vemergency;-planningLuntil the. utility complied with the state's

- ;designipreferences.

The: state would not even have to pass a

special statuteLforbiddingluti'lity. emergency plans; it could s

n e,

.;merel'y turn to-its'"joyridin'g" statute or the-like.

Clearly-l"

-f

- lthis1. result'wouldlbeLeontraryTto the will of Congress.

'c

1. l f t

b

)

b' e

ou

.rE

-'s

49

' 4

.I' IV.

Conclusion For the reasons stated abr,ve, the Board shou'ld. decide Con-

~tentions$1-10 now, and decide them in LILCO's favor.

h Respectfully-submitted, LONG ISLAND LIGHTING COMPANY-

._ )

BY mh b.

/ //

YWO games N. Chyistman Kathy E. B.fMcCleskey Hunton & Williams P.O. Box'1535

-707' East-Main Street-

' Richmond, VA 23219 DATED:

March 226,-1985

w 3

LILCO, March 26,~1985 jo:

i b :-

f 1

c CERTIFICATE-OF SERVICE

'In the Matter of LONG ISLAND LIGHTING COMPANY

" ~

~(Shoreham Nuclear Power Station, Unit'-1)

Docket No. 50-322-OL-3 I;hereby certify that copies of LILCO'S MOTION FOR LEAVE LTO. FILE RESPONSE TO-INTERVENORS' AND NRC STAFF'S ANSWERS TO l

~ LILCO'S' RENEWED MOTION FOR

SUMMARY

DISPOSITION and LILCO'S RE-

-SPONSE TO*INTERVENORS' AND NRC STAFF'S-ANSWERS TO-LILCO'S RE-

NEWED MOTION FOR-

SUMMARY

DISPOSITION were served this date upon Ethe following by first-class mail, postage. prepaid or, as indi-cated byfan~ asterisk, by Federal Express:

Morton B. Margulies,*'

Secretary of~the Commission Chairman U. S.- N u c l e a r R e g u l a t o r y

- ~-

Atomic 1 Safety-and. Licensing Commission Board Washington, D.C.

20555 is,

.U.S.-Nuclear Regulatory

-Commission Atomic Safety and Licensing.

' Eas taWest-- Towe r, Rm. 402A' Appeal Board Panel

-4350 East-West. Hwy.

U.S. Nuclear Regulatory lBethesda,' MD' L20814 Commission

Dr.JJerry R; Kline*

LAtomic 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.

At'omic Safety and. Licensing U. S. Nuclear Regulatory Board 1 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 b

fn ;.

jd. m Donna'Duer, Esq.*

Stewart M. Glass, Esq.*

Attorney'

-Regional Counsel Atomic Safety and Licensing Federal Emergency Management-Board Panelf Agency-U.~ S. Nuclear Regulatory 26 Federal Plaza, Room 1349 Commission New York, New 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 1ChamberL Ralph Shapiro, Esq.*

Room-229 Cammer & Shapiro, P.C.

StateJCapitol 9 East 40th Street Albany, New York 12224 New York, New York 10016

. Mary Gundrum,'Esq.*

James Dougherty, Esq.

Assistant 1 Attorney General 3045 Porter: Street

-2 World. Trade. Center Washington, D.C.

20008 Room 4614 JNew York, New York 10047 Jonathan D.-Feinberg, Esq.

New York State Department of

' Herbert H. Brown, Esq.*

Public Service, Staff Counsel Lawrence Coe Lanpher, Esq.

Three Rockefeller Plaza.

-Christopher McMurray, Esq.

Albany,,New York 12223 Kirkpatrick'&'Lockhart

'8th~ Floor Spence-W. Perry, Esq.

1900 M Street, N.W.

Associate' General Counsel Washington,'D.C.

20036 Federal' Emergency Management Agency-MHB Technical Associates 500 C Street, S.W.

1723 Hamilton-Avenue Room 840 Suite K Washington, D.C.

20472 San' Jose, California 95125 Ms. Nora Bredes Mr.uJay Dunkleberger Executive Coordinator

New York State. Energy Of fice Shoreham Opponents' Coalition

~

Agency Building 2 195 East Main Street Empire State Plaza Smithtown, New York 11787

-Albany, New York '12223' L

y,

-+

Gerald'C. Crotty, Esq.

Martin Bradley Ashare, Esq.

' Counsel to the Governor Suffolk County Attorney Executive Chamber H.

Lee Dennison-Building State Capitol Veterans Memorial Highway Albany, New York 12224 Hauppauge, New York 11788 6&

1 #

James N. Cyistman

-Hunton & Williams 707 East Main. Street P.O. Box 1535 Richmond, Virginia 23212 i-DATED:. March 26, 1985 7

O