ML20112H286
| ML20112H286 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 03/28/1985 |
| From: | Zeugin L LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#285-316 OL-3, NUDOCS 8504020205 | |
| Download: ML20112H286 (10) | |
Text
jN-ti LILCO, March 28, 1985 e
5 EOCKQTED MkC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 35 APR -j.41:03 BeforetheAtomicSafetyandLicensingBoa({!MEr3Eragrgy Ei]y'i4 Sci-vic,r
=.M t:cH In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-3
)
(Emergency Planning. Proceeding)
(Shoreham Nuclear Power Station, )
Unit 1)
)
LILCO'S RESPONSE TO INTERVENORS' REPLY ON THE USE OF THE NASSAU COLISEUM AS A MONITORING AND DECONTAMINATION CENTER On March 20, 1985 Suffolk County and New York State ("In-tervenors") filed yst another unauthorized pleading on LILCO's proposed use of the Nassau Coliseum as a monitoring and decon-tamination center.1/
Intervenors' 32-page " reply" is little more than an affirmative restatement of theses that Interve-nors' proffered they would prove if given an opportunity to reply to LILCO's February 26 response.2/
The Reply does not 1/
On March 1, Intervenors sought leave to file a reply to LILCO's Response to February 19 Proffered Testimony on the Designation of Nassau Coliseum as-a Monitoring and Decontamination Center.
On March 5, LILCO moved the Board to sstrike that pleading as unauthorized.
On March 13, Intervenors filed a Notice of Intention to File Reply Memorandum citing as justification a recent Appeal Board decision in Louisiana Power Light Co. (Waterford Steam Electric Station, Unit 3) (February 13, 1985).
On March 18, LILCO responded to this pleading by arguing that only the Board can state dispositively what plead-ings it contemplated in its January 28 Order.
While the Board has yet to rule on these pleadings, Intervenors have nonetheless taken the liberty of filing this latest reply.
2/.
The_only "new" materials contained in Intervenors' Reply are their attempts to explain why their proffered testimony is (footnote continued) k$50330 5000 95040 Dsos 0
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contain new factual material or legal support for those theses, nor does it advance the joining of issues before this Board.
In many cases, Intervenors' Reply does not confront LILCO's ar-guments.
As a result, LILCO believes that the arguments in its February 26 response still stand; LILCO will not repeat those arguments here.
However, LILCO believes that several asser-tions in Intervenors' Reply require brief response.
1.
At several places in their reply, Intervenors argue that it was apparent to everyone, except LILCO, that there were no agreements to use earlier relocation centers.
See March 20 Reply at 9, 18, 22 n.10 and 27.
Intervenors reason that it therefore "would have been a waste of time and resources" for them to have raised generic issues about any relocation center at some earlier point in this proceeding.
See March 20 Reply at 22 n.10.
Simply stated, Intervenors have attempted to place themselves in the Board's position in deciding how and when an issue should be heard.
NRC regulations clearly establish a procedure for filing proposed contentions; for their accep-tance; and for their adjudication.3/
Those regulations also provide procedures for the filing of late-filed contentions.
(footnote continued)
-not untimely, see, e.g.,
March 20 Reply 1 6, 8,
10, 11, 13, 16 and 17.
These arguments, which were clearly available when In-tervenors filed their initial March 1 request to file' a reply, were not included among Intervenors' numerous proffers.
3/
Indeed, Suffolk County has taken full advantage of these regulations by filing well over a hundred contentions on emer-gency planning issues -- many of these contentions being con-tingent of assumptions that were at issue in other contentions.
s
<4~ Intervenors should not be' excused from following those stan-dards for' late-filed contentions simply because they have con-
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cluded that their resources would have been wasted had they raised'the issues in timely fashion.
Intervenors also argue at several points in their reply that the Board cannot ignore legitimate health and safety con-cerns.
- See, e.g.,
March 20 Reply, f 5, 12 and 17.
LILCO does not disagree with this general proposition.
However, LILCO be-lieves that any "new" safety concerns must be raised in the proper procedural manner as late-filed contentions.
Duke Power Co. (Catawba Nuclear Station, Units 1'and 2), CLI-83-19, 17 NRC 1041 (1983).
Intervenors have not done so in this case.
l 2.
-On page 11 of their reply, Intervenors suggest that LILCO has been given four "tries" to carry its burden on relo-l cation center issues, and that LILCO's current untimeliness ar-i guments'are merely a request for "special treatment from the Board."
Nothing could be further from the truth.
The history of the relocation center issue has followed a recurrent pat-
- 1) LILCO has relied on agreements it has with the Ameri-tern:
can Red Cross for a given organization to provide relocation i-centers during an emergency at Shoreham; 2) LILCO has then listed in.the Shoreham emergency plan the names of relocation s
centers with which the American Red Cross has general written agreements to provide shelters during emergencies; 3) following each listing,-the proposed relocation centers have sent letters to the Red Cross disavowing any such agreement, and informing the Red Cross that either Suffolk County laws or New York State i
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See LILCO Proposed Findings, 1 523-525.
Thus, LILCO has not received special treatment from the Board, and Intervenors can-not excuse their own untimeliness in raising generic issues about relocation centers on the history of the relocation cen-ter-issue.
3.
Intervenors insist that the LILCO Transition Plan has changed in a fundamental way in that now "all evacuees will be directed to go to the Coliseum," previously the only evacuees who would go to-the relocation center were those who needed a place to stay.
March 20 Reply, 1 11.
The f act i s, however, that the planning basis has not changed at all and the Interve-nors have misconstrued, out-of-context, a sentence from the letter of agreement with the Red Cross.
The entire sentence reads as follows:
The location of specific congregate care cen-ters will not be included in public information materials; all evacuees will be directed to go to the Coliseum.
The meaning of the sentence, obviously, is that evacuees in need of a place to stay -- not all evacuees leaving the EPZ -- will be directed to the Coliseum, as distinguished from the congregate care centers.
The plan has not been changed at all with respect to which evacuees are expected to go to relocation centers.
4.
.Intervenors advance two arguments to support the timeli-ness of the testimony of New York State witnesses Langdon Marsh and Sarah Meyland.
First, Intervenors argue that the reason why p
i-other New York State nuclear power plants have not filed state l
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. g environmental impact statements or applied for SPDES permits for relocation activities is because those plants began commercial op-eration before the effective date of either the State Environ-mental Quality Review Act (SEQRA) or the Environmental Conserva-tion Water Pollution Control Act.
March 20 Reply at 29-30.
Second, Intervenors defend their failure to have filed a timely challenge to Nassau County's alleged noncompliance with SEQRA in New York State courts by arguing that the statutory time period does not begin to run until an agency takes some action required by SEQRA.
March 20 Reply at 28-29.
Neither argument can with-stand scrutiny.
SEQRA became effective on September 1, 1976.
See March 20 Reply at 30 n.12.
The accident at Three Mile Island occurred in 1979.
The subsequent, more detailed emergency planning require-ments of 10 CFR S 50.47 that were precipitated by that accident --
including requirements for relocation centers -- were not promul-gated until August 8, 1980.
That date, not the date on which other nuclear power plants in New York State began operation, is the relevant one with respect to whether those plants were re-quired to comply with SEQRA with regard to the designa' tion of decontamination centers in their emergency plans.
The key fact is that detailed radiological plans were developed by State and local agencies after the effective date of SEQRA, and that they do not involve any actions under SEQRA.
Similarly, the date of initial operation of other nuclear power plants in New York State is irrelevant to the question of whether those plants need to obtain SPDES permits for
~ t decontamination centers.
New York State SPDES permits, like the
-federal Clean Water Act which spawned their existence, are de-signed to limit all water discharges.
Accordingly, existing nu-clear power plants, like other dischargers, must obtain SPDES per-mits before releasing certain regulated pollutants.
They are not excluded from obtaining those permits simply because they began operation prior to the promulgation of SPDES permit. requirements.
The fact that SPDES permits were not obtained for other decon-tamination centers in New York = State confirms that SPDES permits
.are not required for those activities.
Finally, Intervenors' argument that the New York State stat-ute of limitations has not yet run on their SEQRA claim has no legal or logical support.
Intervenors have cited no case law, nor
.is-there any, to support their novel claim that the statute of limitations on challenges to compliance with SEQRA begins to run only after a state or local agency has filled out the required.
state form. : Logically, Intervenors' argument makes no sense.
SEQRA, like the federai NationalLEnvircnmental Policy.Act (NEPA) on which it is modeled, is designed to ensure that environmental effects are considered before a governmental action is'taken.
Here, that action was Nassau County's agreement with LILCO on
' October 1, 1984 to permit the use of the Nassau Coliseum as a decontamination facility.
It follows that a governmental entity's failure to consider environmental effects before taking an action becomes one component in deciding whether that action was proper.
Thus, where a statute of limitation seeks to give finality to
-agencyLaction, as 6 217 of the New York State's CPLR does, the t
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. 5 question of non-compliance with SEQRA -- whether it be due to an incomplete environmental impact statement, or to an improper find-ing of no significant environmental effect, or even to no action at all -- must be challenged within that statutory time frame.
Intervenors do not dispute that they have failed to seek review of Nassau County's action with the statutory time frame; therefore, Mr. Marsh's SEQRA testimony is untimely.
Conclusion As in its earlier response, LILCO submits that the testimony submitted by the Intervenors should not be admitted because it is untimely, outside the scope of the very narrow issue on which the record has been reopened, or not relevant to or probative of the issue whether NRC regulations are met.
Likewise no public hearing on the testimony should be held.
Respectfully submitted, LONG ISLAND LIGHTING COMPANY BY Donatd P.
frpi(/
James N. CMistman Lee B.
Zeugin Hunton & Williams P.O.
Box 1535
=707 East Main Street Richmond, VA 23212 DATED:
March 28, 1985
'3 LILCO, March 28, 1985 g
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 RESPONSE TO INTER-VENORS' REPLY ON THE USE OF THE NASSAU COLISEUM AS A MONITORING AND DECONTAMINATION CENTER were served this date upon the fol-lowing by first-class mail, postage prepaid or, as indicated by an asterisk, by Federal Express, or, as indicated by two aster-isks, by hand:
Morton B. Margulies,**
Secretary of the Commission Chairman U.S.
Nuclear Regulatory Atomic Safety and Licensing Commission Board Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Atomic Safety and Licensing East-West Tower, Rm. 402A Appeal' Board Panel 4350 East-West Hwy.
U.S. Nuclear Regulatory Bethesda, MD 20814 Commission Washington, D.C.
20555 Dr. Jerry R.
Kline**
Atomic Safety and Licensing Atomic Safety and Licensing Board Board Panel U.S. Nuclear Regulatory U.S.
Nuclear Regulatory Commission Commission East-West Tower, Rm. 427 Washington, D.C.
20555 4350 East-West Hwy.
Bethesda, MD 20814 Bernard M. Bordenick, Esq.**
Oreste Russ Pirfo, Esq.
Mr. Frederick J.
Shon**
Edwin J. Reis, Esq.
Atomic Safety and Licensing U.
S. Nuclear Regulatory Board Commission U.S. Nuclear Regulatory 7735 Old Georgetown Road
' Commission (to mailroom)
East-Wost Tower, Rm. 430 Bethesda, MD 20814 4350 East-West Hwy.
Bethesda, MD 20814
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Donna Duer, Esq.**
Stewart M. Glass, Esq.*
Attorney Regional Counsel Atomic Safety and Licensing Federal Emergency Management Board Panel Agency.
-U.
S. Nuclear Regulatory 26 Federal Plaza, Room 1349 Commission-New York, New York 10278 East-West Tower, North Tower
.4350 East-West Highway Stephen B.
Latham, Esq.*
Bethesda, MD 20814 Twomey, Latham & Shea 33 West Second Street Fabian G.
Palomino, Esq.*
P.O.
Box 398 Special Counsel to the Riverhead, New York 11901 Governor.
Executive Chamber Ralph Shapiro, Esq.*
Room 229 Cammer & Shapiro, P.C.
State Capitol 9 East 40th Street Albany, New York 12224 New York, New York 10016 Mary Gundrum, Esq.*
James Dougherty, Esq.
Assistant Attorney General 3045 Porter Street 2 World Trade Center Washington, D.C.
20008 Room 4614 New 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. Jay Dunkleberger Executive Coordinator New York State Energy Office Shoreham Opponents' Coalition Agency Building 2 195 East Main Street Empire State Plaza Smithtown, New York 11787 Albany, New York 12223 v
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- i 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
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L'ee B. Zsu. nf A
Hunton & Williams 707 East Main Street P.O.
Box 1535 Richmond, Virginia 23212 DATED:
March 28, 1985
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