ML20100K110

Motion to Vacate ASLB 840420 Order Granting Util Motion for Summary Disposition on Contention 24.B & to Strike Portions of Util & NRC Proposed Findings.Certificate of Svc Encl

ML20100K110
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	12/07/1984
From:	Mark Miller, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SUFFOLK COUNTY, NY
To:	Atomic Safety and Licensing Board Panel
References
CON-#484-537 OL-3, NUDOCS 8412100568
Download: ML20100K110 (13)

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• U5H30 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMM I

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. Before'the Atomic Safety and Licensing Board GFFICE OF SECFETAF Y COCKEilNG & SERViU

) BRANCH In the Matter of )

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

) ~ ~'

(Shoreham Nuclear Power Station, )

Unit 1) )

)

SUFFOLK COUNTY AND STATE OF NEW YORK MOTION TO VACATE ORDER GRANTING LILCO'S MOTION FOR

SUMMARY

DISPOSITION ON CONTENTION 24.B AND TO STRIKE PORTIONS OF LILCO'S AND THE STAF2'S PROPOSED FINDINGS On April 20, 1984, the Board, over the opposition of Suffolk County, granted summary disposition in favor of LILCO on certain emergency planning contentions, including Contention 24.B.b!

Contention 24.B, as modified and confirmed by the Board's Order of February 3, 1984,S/ provided as follows:

The Plan does not include any agreements with (1) U.S.' Department of Energy-Radiological Assistance Program (" DOE-RAP") employees or (2) any outside consultant that has agreed to fill the LERO position of " Radiation Health Coordina-tor," which identify the services to be pro-vided, the criteria for their implementation or the arrangements for exchange of information, or which obligate them to perform the functions for which they are relied upon by LILCO. In the absence of such agreements, there can be no assurance that the following functions can or will be implemented: accident or dose assessment or projection, recommendation of protective actions to the LERO Director, radiological 1! See Order Ruling on LILCO's Motions for Summary Disposition of Contentions 24.B, 33, 45, 46 and 49 (hereinafter,

" Order").

S! See Memorandum and Order Ruling on Intervenors' Proposed l Emergency Planning Contentions Modified to Reflect Revision 3 of the LILCO Plan.

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p monitoring, decontamination, protection and exposure control for the public and LERO workers, ingestion pathway protective action recommendations or implementation, or recovery and reentry functions. Thus, there is no compliance with 10 CFR Section 50.47(b)(9),

(b)(10) and (b)(11).

In its April 20 Order, the Board concluded that LILCO had entered into an agreement with DOE-RAP "wherein the Department of Energy (DOE) has agreed to provide the support of DOE employees for radiological assistance in the event of an emergency at Shoreham." Order, at 4. The Board also found that "the degree of response to be furnished by DOE [was] not in dispute." Order, at 9-10. Accordingly, summary disposition as to Contention 24.B was granted.

Suffolk County and the State of New York do not believe the Board's April 20 ruling was correct, for the reasons set forth in the Suffolk County Memorandum in Opposition to LILCO's Summary Disposition Motions on Contentions 24.B, 33, 45, 46 and 49, dated March 5, 1984. However, even assuming arguendo that the April 20 Order was correct given the facts known to the Board at that time, in light of subsequent developments set forth below, it clearly is not correct today. The County and State accordingly move to vacate the April 20 Order as it pertains to Contention 24.B.

First, in a letter dated October 2, 1984, Department of Energy Secretary Donald Hodel wrote to Congressman William Carney of Long Island to advise that "the Department of Energy ~does not favor the imposition of Federal Government authority over the w.

r o- .

objections of any state and local government in matters regarding-the adequacy of an emergency evacuation plan for a nuclear power

~

plant such as Shoreham."

Second, in a letter dated October 11, 1984, President Ronald Reagan stated in a letter to Representative Carney the following:

On a matter of particular concern to you and the people of Eastern Long Island, I wish to l epeat Secretary Hodel's assurance to you that this Administration does not favor the imposition of Federal Government authority ove.r the objections of state and local governments in matters regarding the adequacy of an emergency evacua-tion plan for a nuclear plant such as Shoreham.

Copies of Secretary Hodel's October 2 letter and President Reagan's October 11 letter are appended hereto as Attachments 1 and 2, respectively.

In light of the State of New York's and Suffolk County's opposition to the adequacy of LILCO's proposed emergency plan for Shoreham, LILCO's assumption that the Department of Energy or any other federal authority would be available to perform tasks assigned to them by the LILCO Plan is without basis. Clearly, the DOE " letter of agreement" which was relied upon by LILCO and the Board in the Board's April 20 summary disposition ruling has been superseded by the more recent statements of the Secretary of DOE and the President of the United States. In light of the straightforward statements by Secretary Hodel and President Reagan, the State and County submit that the Board can reach but one conclusion: there is no basis for assuming, or finding with V

. reasonable-assurance, that there will be the imposition of-Federal' authority through the participation of any Federal agency in the implementation of LILCO's Plan, given the opposition of the County and the State. At the very least, the statements by President Reagan and Secretary Hodel raise substantial questions, which this. Board has heretofore not considered, as to whether any Federal department or agency, including DOE, could now --

consistent with Federal policy -- impose its authority through implementing LILCO's Plan, over New York State's and Suffolk County's objections. The Board should vacate its April 20 Order granting summary disposition in favor of LILCO on Contention 24.B, and examine this issue in light of the statements by the Secretary of Energy and the President of the United States.

Moreover, in light of the statements by Secretary Hodel and President Reagan discussed above, the County and State hereby move the Board to strike all references to the use of Federal authority (such as DOE and the U.S. Coast Guard) in the implemen-tation of LILCO's Plan, which are contained in the Proposed l Findings of Fact filed by LILCO and the NRC Staff. Clearly, statements such as "[LILCO] has incorporated the Department of Energy into the decisionmaking process . . .," (LILCO Finding 112) and "The Coast Guard will provide notification of an emer-gency with protective action recommendations to boaters . . .

(LILCO Finding 345), contradict the statements of-the President and Secretary Hodel.

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. For.the Board's convenience, the portions of LILCO's and the Staff's Proposed Findings sought to be stricken are set forth in Attachment 3 to this Motion.

Respectfully submitted, Martin Bradley Ashare Suffolk County Attorney H. Lee Dennison Building Veterans Memorial Highway Hauppauge, New York 11788 Herbert H. Brown Lawrence Coe Lanpher Karla J. Letsche Michael S. Miller KIRKPATRICK & LOCKHART 1900 M Street, N.W.

Suite 800

? . Washington, D.C. 20036 Attorneys for Suffolk County MARIO M. CUOMO, Governor of the State of New York BY: / -

FABIAN G. PALOMINO, ESQ.

1. [Mf/[

Special Counsel to the Governor of the State of New York Dated: December 7, 1984 Attorney for the Governor of the State of New York

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Attachment 1 THE SECRETARY OF ENERGY k

@* WAsamorou. e.c. rosa Cctober 2, 1994 3

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Ibnorable Willim Carnarf House of Papresentatlyes A shington, D. C. 20515

Dear Bill:

I want to take this opportunity to update you on cm.tr activities reqardina the shoraham nuclear power plant. As we assured you last spring aM at other times when w discussed the concerns of the citizens of long Isla.nd reganling shcrehan, the Department of Encrgy dces not favor the imposition of Federal Governrent authority over the objections of any state and Iccal goverrrent in tutters regarding the adequacy of an enw.rgency evacuation plan for.a nuclear pcuer plant

.such as Shoreham. -

cur position is clear. h Peagan Administration has always had faith in the ability of Ame.rican citizens and Iccal elected offielaas to ham)e the probisms which confront the directly. As one of Inng Island's rrost capable aM vigo:ous elected officials, your advice and ccunsel regarding energy and ecermie policies which affect the future of your constituents have been extrerrely valuable to President Reagan and me.

As I mentioned to you earlier this year Who.n you Drought in industrial, la ce, and' Gove.rment leade.rs of the First District to visit with me, you have been a vigorous advecate of the interests of Icng Island, especially in behalf of Brcokhaven National Latcratory ard othe.r Federal facilities.

I Icok forward to your continued wise counsel on these ard other issues in the years ahead.

Sincerely,.

EGAID PAUL HCG 2.

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T HE WlitTE ItO L'S E .

- wsuiWoTos October 11, 1984 Daar bill:

I want yr.u to knew c.' m3 appreci..t ion f or your continuire eer.'tribution;s to and support tor my Acp.inis tri. t i on . Yeur leadership *and.cdurage have beer. Cotstr.in:r.c f'.eters ir the progres= wt- h-te made in the lert 6:w years.

On a matter of particular concern to you snd th*

people cf Easterre Lcrg Inland, I wish to repeat Secretary Mcde.!'c assurance to you thrt this Administration does not favor the impositior. of Federal Government authority over the objections ci state and lecal governments in matters regarding the adec.uacy of ar emergency evar;uatier.

plan f or a r.uclear power plkrit such as Shcreham.

Your ecncern fer the safety ci the people of Lor.g

~Islard is parencurt and shared by the Secretary ar.d me.

Thank ycu egair. for your support, I Icck forucrd to scrkir.g with ;cu 1.n the years ahead.

Sincerely, ,

T^^ ,

3 The Hor.critle 1.'illism Corney House ci Reprcrentativos viashingten, D.C. 20515 l

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ATTACHMENT 3 LILCO'S AND THE STAFF'S PROPOSED FINDINGSb!

Federal Agency (s) Portion Sought to be Stricken Coast Guard,~' DOE L.F. 2, lines 9-10 and N.F. 2, line 10, "the U.S. Coast Guard, the U.S. Department of Energy"

' DOE L.F. 62; N.F. 57 DOE L.F. 89; N.F. 124 DOE L.F. 90,.line 5, "the DOE RAP Team"; N.F. 123, line 5, sentence beginning "Besides getting information . . ."

DOE L.F. 112, lines 5-6, sentence beginning "It has incorporated

. . ."; N.F. 125, lines 5-7,

" DOE personnel . . . at.the EOC" DOE L.F. 123, lines 5-7, sentence beginning "The Department of Energy . . ."; N.F. 82, line 2, " DOE" DOE, Coast Guard L.F. 134, lines 3-4, " DOE's performing monitoring . . .

its own procedures)"; and lines 6-7, "or the Coast Guard's . . . in its own way)"; N.F. 87, line 11, " DOE, the Coast Guard" DOE, Coast Guard,. FAA L.F. 174, lines 3-4, "the Department of Energy RAP Team" and "the United States-Coast Guard"; line 9, DOE " and "and the Coast Guard"; N.F. 179,

-1/- See LILCO's Proposed Findings of Fact and Conclusions of Law on Offsite Emergency Planning, dated October 5, 1984 (hereinafter, "L.F."); NRC Staff's Proposed Findings of Fact and Conclusions of Law in the Form of a Supplemental Partial Initial Decision on Emergency Planning, dated November 5, 1984 (hereinafter, "N.F.").

J

' Federal' Agency (s) Portion Sought to be Stricken

. lines 2-4, "Brookhaven National Laboratory" and "the United States Coast Guard;"

N.F. 182, lines 2-7, sentence beginning "Brookhaven National-Laboratory . . ."

DOE, Coast Guard L.F. 178, n. 71, lines 6-7, 8, "the Coast Guard, the DOE / RAP team" DOE, Coast Guard L.F. 197, line 14, " principal federal response organiza =

tions," line 16, " DOE / RAP Team" and_line 17, "the U.S.

Coast Guard"; N.F. 212, line 2, " relevant federal response organizations" and lines 11-15, sentence beginning

" Additional communication paths . . ."

DOE L.F. 219; N.F. 238, 239 Coast Guard, DOE L.F. 226,.line 4, "the Coast Guard, DOE"; N.F. 249, line 4 "the United States Coast Guard, DOE" Coast Guard, DOE L.F. 228, line 3, "U.S. Coast Guard," and line 8, " DOE RAP"; N.F. 251, lines 2-3, "U.S. Coast Guard" and line 8,

" DOE RAP" DOE L.F. 234; N.F. 256 DOE L.F. 237, lines 1-5 (except reference to Red Cross)

DOE, Coast Guard L.F. 238, line 6, " DOE"; N.F.

261, lines 3-6, sentence beginning "Likewise, the Board finds . . .

Coast Guard L.F. 239; N.F. 259 Coast Guard L.F. 242, line 3, sentence beginning "Likewise, the Board . . .

Federal-Agency (s) Portion Sought to be Stricken Coast Guard ,

L.F. 345, lines 1-5; N.F. 345, lines 1-6, beginning "By letter of agreement . . ."

through "within 10 miles of Shoreham" Coast Guard L.F. J46, lines 2-3, " Coast Guard notification"

-Coast Guard L.F. 349, line 17, "by the Coast Guard" Coast Guard L.F. 385, lines 3-6, sentence beginning "In addition,

. . ."; N.F. 393, lines 6-11, sentence beginning "Further, under an agreement . . ."

Coast Guard N.F. 394, lines 3-5 sentence beginning " Boaters will be . . .

DOE L.F. 412, lines 5-6, "and the extensive resources . . . DOE RAP response" DOE L.F. 640, lines 4-6, sentence beginning "OPIP 3.6.6 provides . . .

DOE L.F. 646; N.F. 712 DOE L.F. 647, lines 10-11, sentence beginning "These samples . . .

DOE L.F. 648, lines 2-3, sentence beginning "OPIP 3.6.6 calls for . . ."

DOE L.F. 650, lines 1-3, sentence beginning "In the event

. . ."; N.F. 724, lines 1-2,

" environmental survey teams" DOE L.F. 655; N.F. 736, lines 4-9, beginning "The Department of Energy . . . " through

" ingestion exposure path" Federal Government, generally L.F. 658; N.F. 742 k

r LILCO'S REPLY FINDINGS !

Federal Agency (s)- -Portion Sought to be Stricken DOE R.F. 190, lines 5-8, sentence beginning "Moreover, the DOE Team . . ."

DOE, Coast Guard- R.F. 200, lines 6-7'"the Department of Energy, the Coast Guard" DOE R.F. 205, line 7, "and DOE" DOE R.F. 208, lines 5-6, sentence beginning "The sources , . ."

DOE R.F. 331 DOE R.F. 340, line 16, "and DOE" .-

Coast Guard R.F. 401, line 9,' "or to the Coast Guard" Coast Guard R.F. 422, lines 1-5 FDA R.F., n. 134 l..

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12/

See LILCO Reply Findings on Offsite Emergency Flanning, dated October 14, 1984 (hereinafter, "R.F.").

z- -

UNITED STATES OF AMERICA NUCLEAR REGULATORY. COMMISSION ,

Before the Atomic Safety and Licensing Board

)

In'the Matter of -)

)

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

. . ) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

)

CERTIFICATE OF SERVICE-

_ I hereby certify that copies of Suffolk County and State of New York Motion to Vacate Order Granting LILCO's Motion for Summary Disposition on Contention 24.B and to Strike Portions of LILCO's and the Staff's Proposed Findings have been served to the following this 7th day of December, 1984 by U.S. mail, first class, except as otherwise noted.

James A. Laurenson, Chairman James B. Dougherty, Esq.

Atomic Safety and Licensing Board 3045 Porter Street, N.W.

U.S. Nuclear Regulatory Commission Washington, D.C. 20008 Washington, D.C. 20555 Mr. Jay Dunklecerger Dr. Jerry R. Kline New York State Energy Office Administrative Judge Agency Building 2 Atomic Safety and Licensing Board Empire State Plaza U.S. Nuclear Regulatory Commission Albany, New York 12223 Washington, D.C. 20555 ,

W. Taylor Reveley, III, Esq.

Mr. Frederick J. Shon Hunton & Williams Administrative Judge P.O. Box 1535 Atomic Safety and Licensing Board 707 East Main Street U.S. Nuclear Regulatory Commission Richmond, Virginia.23212 Washington, D.C. 20555 l Fabian Palomino, Esq.

Edward M. Barnett, Esq. Special Counsel to Governor General Counsel Executive Chamber Long Island Lighting Company Room 229 250 Old Country Road State Capitol j Mineola, New York 11501 Albany, New York 12224 i

Mr. Brian McCaffrey Stephen B. Latham, Esq.

Long Island Lighting Company Twomey, Latham's Shea Shoreham Nuclear Power Station P.O. Box 398 P.O. Box 618 33 West Second Street i North Country Road Riverhead, New York 11901 l Wading River, New York 11792 l

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__ . . - - . .- _ _ ., ,m, -

• . 9 Joel Blau, Esq. MHB Technical Associates New York Public Service Commission 1723 Hamilton Avenue The Governor Nelson A. Rockefeller Suite K Building San Jose, California 95125 Empire State Plaza Albany, New York 12223 Hon. Peter F. Cohalan Suffolk County Executive Martin Bradley Ashare, Esq. H. Lee Dennison Building Suffolk County Attorney Veterans Memorial Highway H. Lee Dennison Building Hauppauge, New York 11788 Veterans Memorial Highway Hauppauge, New York 11788 Stuart Diamond Business / Financial ,

Atomic Safety and Licensing New York Times Board Panel 229 W. 43rd Street U.S. Nuclear Regulatory Commission New York, New York 10036 Washington, D.C. 20555 Docketing and Service Section Atomic Safety and Licensing Office of the Secretary Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory 1717 H Street, N.W. Commission Washington, D.C. 20555 Washington, D.C. 20555 Bernard M. Bordenick, Esq. Jonathan D. Feinberg, Esq.

Edwin J. Reis, Esq. Staff Counsel U.S. Nuclear Regulatory Commission New York State Public Washington, D.C. 20555 Service Commission 3 Rockefeller Plaza Stewart M. Glass, Esq. Albany, New York 12223 Regional Counsel Federal Emergency Management Nora Bredes Agency Executive Director 26 Federal Plaza, Room 1349 Shoreham Opponents Coalition New York, New York 10278 195 East Main Street Smithtown, New York 11787 Ms. Donna D. Duer Spence Perry, Esq.

Atomic Safety and Licensing Associate General Counsel Board Panel Federal Emergency Management U.S. Nuclear Regulatory Commission Agency Washington, D.C. 20555 Washington, D.C. 20472 Michael S. Miller KIRKPATRICK & LOCKHART 1900 M Street, N.W., Suite 800 Washington, D.C. 20036 2-