ML20126E399

Transcript of Commission 850604 Meeting in Washington,Dc Re Oral Argument on Facility.Pp 1-116

ML20126E399
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	06/04/1985
From:	NRC COMMISSION (OCM)
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REF-10CFR9.7 NUDOCS 8506170067
Download: ML20126E399 (121)

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ORIGINAL Q UNITED STATES OF AMERICA f' NUCLEAR REGULATORY COMMISSION .

In the matter of:

COMMISSION MEETING Oral Argument on Shoreham (Public Meeting)

Docket No. Sc ) -3 2 l

l l Location: Washington, D. C.

Date: Tuesday, June 4, 1985 Pages: 1 - 116 l

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8506170067 850604 PDR 10CFR PDR PT9.7 l

l ANN RILEY & ASSOCIATES Court Reporters

{ 1625 I St., N.W.

Suite 921 Washington, D.C. 20006 (202) 293-3950

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J

e e

1 D I SC L A I M E P 2

3 4

5 6 This is an unofficial transcript of a meeting of the 7 United States Nuclear Regulatory Commission held on Tuesday, 3 June 4, 1985 in the Commission's office at 1717 H Street, 9 N.W., Washington, D.C. The meeting was open to public 10 attendance and observation. This transcript has not been 11 reviewed, corrected, or edited, and it may contain 12 inaccuracies.

13 The transcript is intended solely for general 14 informational purposes. As provided by 10 CFR 9.103, i t. is 15 not part of the formal or informal record of decision o' the 16 matters discussed. Expressions of cpinion in this transcript 17 do not necessarily reflect final determination or beliefs. No 18 pleading or other paper may be filed with the Commission in 19 any proceeding as the result of or addressed to any statement 20 or argument contained herein, except as the Ccmmission may 21 authorize.

22 23 24 25

1 )

80 1 UNITED STATES OF AMERICA 2 NUCLEAR REGULATORY COMMISSION 3 _ _ _

4 ORAL ARGUMENT ON SHOREHAM 5 - - -

6 PUBLIC MEETING 7 U.S. Nuclear Regulatory 8 Commission 9 1717 H Street, N.W.

10 Room 1130 11 Washington, D.C.

I 12 Tuesday, June 4, 1985 IS The Commission met, pursuant to notice, at 2:10 p.m.

14 COMMISSIONERS PRESENT:

15 NUNZIO PALLADINO, Chairman of the Commission 16 THOMAS M. ROBERTS, Commissioner 17 JAMES K. ASSELSTINE, Commissioner 18 FREDERICK M. BERNTHL, Commissioner 19 LANDO W. ZECH, JR., Commissioner 20 STAFF AND PRESENTERS SEATED AT COMMISSION TABLE:

21 SAMUEL J. CHILK, Secretary 22 HERZEL PLAINE, General Counsel 28 MICHAEL BLUME, Office of General Counsel 24 25

- - - - . _ . --..-.._-.- -- - - - . ... _._ ~ - .- . ___ ..

4 s ,

2 1 STAFF AND PRESENTERS SEATED AT COMMiSS1ON TABLE (Continued)

]

2 FASIAN G, PALOMINO 3 MARTIN ASHARE 4 WAYNE PROSPECT 5 DONALD P. ERWIN 6 ' ROBERT ROLFE 7 TAYLOR REVELEY l 8 ROBERT PERLIS i

9 RALPH CARUSO 10 CHARLES GASKIN i

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3 1 p ROCEED 1 NG S 2 CHAIRMAN pALLADINO: Good afternoon, ladies and 3 gentlemen. The purpose of this afternoon's meeting is to hear 4 oral presentation from the parties to the Shoreham licensing 5 proceeding. A notice of oral argument issued last week by the 6 Commission set out three issues to be addressed today, as well 7 as other matters in which the Commission is interested.

8 Yesterday, June 3rd, the Commission received a 9 letter from Mr. Martin Bradley Ashare, Suffolk County 10 attorney. The letter stated that Mr. Ashare would represent 11 the County in all Shoreham-related proceedings. The letter f

\ 12 stated that the County did not wish to have the oral 13 presentation scheduled for today adjourned.

14 Earlier yesterday, the Commission received a 15 pleading entitled Suffolk County Motion for postponement for 16 Oral Argument filed by Mr. Herbert H. Brown. Attached to that 17 pleading was a letter signed by two Suffolk County legislators 18 stating in essence that Mr. Brown represented Suffolk County.

19 The Commission also had a request, which it agreed 20 to, to hear from a former member of a county legislature. He 21 may address the Commission for five minutes following the 22 presentation of the Suffolk County attorney.

23 I believe I speak for the Commission when I say that 24 we look forward to today's presentation to identify for the 25 Commission who is speaking for the County on this matter.

4 4

1 ELaughter.]

2 Our scheduling order provides 15 minutes for each of 3 the parties to the case, plus five minutes for Mr. prospect.

4 I urge the designated speakers to adhere to their allotted 5 time.

l 6 If any party intends to address matters that 7 constitute protected, sensitive safeguards information, we G will need to close that portion of today's meeting.

9 Therefore, the speaker should indicate his intent to cover 10 safeguards information at the outset of his presentation if

. 11 it is necessary to address such matters, then the Commission 12 will go into closed session, and that will be at the end of 13 the open meeting, to address the protected safeguards 14 information. If any party believes that our public 15 discussions involve safeguards information, its representative 16 should raise a prompt objection for Commission consideration.

17 General Counsel informs me that he has two 18 preliminary matters that he believes we ought to attend to, 19 and unless other Commissioners wish to make opening remarks, i 20 would propose to turn it over to General Counsel 21 MR. PLAINE: Thank you, Mr. Chairman. I simply 22 wanted to have it noted for the record that the Commission has 23 denied the Motion for postponement of the Oral Argument. In 24 addition, has recognized the right for a limited appearance by 25 Mr. Wayne prospect, representing certain legislators of the

o ar-5 1 Suffolk County legislature.

2 It would be useful if the four parties would please 3 enter their appearances for the record. For New York State?

4 MR. PALOMINO: Fabian G. Palomino.

5 MR. PLAINE: For Suffolk Countv?

6 MR. ASHARE: Martin Bradley Ashare.

7 MR. PLAINE: For Applicant, LILCO?

8 MR. ERWIN: Donald P. Erwin.

9 MR. PLAINE: And for the NRC Staff?

10 MR. PERLIS: Robert Perils.

11 MR. PLAINE: Thank you very much.

/

\ 12 CHAIRMAN PALLADINO: Thank you.

13 MR. PLAINE: Mr. Prospect, did you identify 14 yourself?

e 15 MR. PROSPECT: Wayne Prospect, Suffolk County 16 legislator.

17 CHAIRMAN PALLADINO: Well then, I suggest we proceed 18 with the presentations, and the first individual would be 19 Mr. Palomino, representing New York State. 15 minutes.

20 MR. PALOMINO: I'd like to thank the Chairman and 21 the Commission for the opportunity to oral argue the issue 22 that you have raised. I would also like to reserve, if I 23 could, a few minutes for rebuttal, three or four, if 24 necessary.

25 CHAIRMAN PALLADINO: Any objection?

6 1 [No objections.]

2 CHAIRMAN PALLADINO: All right.

3 MR. PALOMINO: Is my mike on?

4 CHAIRMAN pALLAD NO,: Yes. You will have to speak 5 quite closely into the mike.

6 MR. PALOMINO: The questions the Commission has 7 asked us to address are three, and the first one was whether 8 to reconsider CLI 85-1 It is the opinion of New York State 9 that not only should the Commission reconsider it, but that 10 they should reverse their prior decision and remand the matter 11 for a new hearing. The reason for this is our firm conviction 12 that our rights to due process in that hearing below were 13 denied.

14 And it's not surprising. The Miller Board was 15 anxious to give this exemption and authori=e the low power 16 license. They were so anxious last spring we had to go to 17 court to get a temporary restraining order to stop them from 18 a schedule that was unconstitutionally restricted.

19 Thereafter, apparently they proceeded to go ahead and trample 20 on our rights in this proceeding.

21 All the objections and everybody in the proceeding 22 was entitled to due process under the Constitution, under 23 Section 1989(a) of the Atomic Energy Act, and under the 24 Administrative Procedures Act. We feel we failed to get them 25 in that they allowed Long Island Lighting Company to introduce

7 1 evidence on issues; two issues in particular, public interest 2 and exigent circumstances, and they denied us the right to 3 introduce what we consider countervailing evidence. And as a 4 result of that, they denied us due process.

5 There's another aspect to the denial Not only does 6 a party have a right to introduce evidence that's relevant to 7 an issue where another side has introduced evidence; also, the 8 decision should be based on the evidence in the record. And 9 we think the Commission failed in that respect.

10 It recognized that there was an improper denial of 11 our evidence, and it chose to correct it by admitting evidence 12 --

by ignoring the other evidence. As a result, there was 13 really not an adequate record upon which they could base these 14 decisions of public interest and exigent circumstances. And 15 we really feel it was a blatant and egregious violation of our 16 rights. The attempt to correct it compounded it. And the 17 only way to correct it is to reverse that decision and remand 18 it for a fair hearing.

19 There are other areas we feel that, by the 20 Commission and the licensing board in interpreting the thrust 21 of our arguments, the conclusions of them, and the record is 22 replete with them, with authorities, and I don't think it's 23 necessary to go into them here, and I won't take the 24 Commission's time to go into them.

25 As far as the issue of "as safe as" we really feel

8 1 that the evidence in the record established that the 2 configuration sought to be used by LILCO in this exemption 8 proceeding is not as safe as. The board below found it wasn't 4 as safe as. Well, characterized it as "as safe as" but found 5 that it was not marginally as safe.

6 And now, the fact is the people of Long Island are 7 entitled to as much protection as anybody else. As a O representative of the State of New York, I must insist on that 9 protection for them. The fact is you have a system which one 10 part of it could take 30 minutes to get started up and online 11 and carry the load. Another aspect of it might take a lesser 12 time. But in any event, if you start with one, it fails; you 18 start with another, you're coming marginally close to this 55 14 minutes where there could be deep trouble.

15 And we don't think that that is as safe as a 16 fully-qualified and approved system which could start up and 17 be on load and online to operate the emergency pumps within 15 18 seconds or so. We feel that it's not fair to impose this kind 19 of a risk on the people of Long Island. And so for those 20 reasons, we feel that there's sufficient reason to reconsider 21 your ALAB CLI-85-1 22 There is another compelling reason why we feel that 28 the Commission should reverse it and remand it for a new 24 hearing, and that is the fact that in refusing to update its 25 Environmental Impact Statement, the Commission has violated

9 1 the National Environmental Policy Act The National 2 Environmental Policy Act wasn't in existence when the first

' 3 Environmental Statement was made. And the first Environmental i

4 Statement was based upon the assumption that this plant would 5 go online and generate full power.

6 Now, wherever there is a change in circumstances, 7 EPA requires, mandates, that where there is foreseeable 8 changes and circumstances which could affect the early 9 determination, that they update it. And they update it by 10 taking a hard look at the relative benefits.

11 And also, it requires that they consider 12 alternatives, if there are any. And the fact is, this 1 13 Commission didn't do any of those things. And there is a 14 reasonably foreseeable basis to see that this original 15 Environmental Impact Statement was undermined. It was 16 undermined by the fact that there is a foreseeable that this 17 plant will never go online.

18 Two courts have now indicated that, have now held 19 that. Your own licensing board has held it, that in fact, 20 this plant cannot be legally implemented. It's held that the 21 Emergency Off-Site Evacuation Plan invalid. It's invited 22 LILCO to submit a new plan. And as a result, this plant can't 23 go online.

24 And none of that is changed by the events of a few 25 days ago. First, because the court, the Supreme Court of the

10 1 State of New York has ruled that in order to implement the 2 Off-Site Emergency Evacuation plan it would involve powers 3 solely vested in the state. And the state is not going along 4 with any plan to assist LILCO. So that legally, the plan is 5 still not implementable.

6 Secondly, there's a serious question as to whether 7 the County Executive can help LILCO in a way he plans to under 8 state law.

9 Thirdly, assuming even the ultimate case that he 10 could legally help LILCO to some extent, we would have to have 11 a re-examination of this new plan, a re-hearing. It's taken 12 over two years to hear the original plan, it will take another 13 two years. So there's no compelling reason to not send this 14 back for a new hearing, cover these issues, have a complete 15 record and go ahead and have everybody protected safely and 16 surely. At least to the extent required by law, in our 17 judgment 18 Turning now to another aspect of it, there's no 19 benefit to be gained now, there's no benefit to be gained 20 whatsoever by going ahead with this procedure and issuing' a l

21 low power license. The question of the validity of the LILCO f

22 Off-Site Emergency plan can't be settled within less than a 23 year. The question of the County Executive powers won't be l

24 settled in the state court system for less than a year.

i 25 And furthermore, to contaminate the plant when

11 1 you're not generating any power is not a valid reason. And 1 2 know the Commission, in its decision in ALAB 85-1, said that S there would be benefits gained by early testing. Well, fact 4 is, as pointed out in the dissenting opinion, that the 5 benefits are nil; you're really testing the instruments.

6 You're not really getting any benefit out of the early 7 testing. The power is too low to really show up anything.

8 Furthermore, no benefits are to be gained if it's 9 never going to go to full power. And the whole basis of this 10 application by LILCO was the assumption that if they could get 11 this low power license now, it would speed up their getting.a 12 full power license. The legal impediments now preclude that, 13 so that, you know, there's just no likelihood of that 14 happening.

15 So it's belief that on the basis of these errors, 16 the decision below should be reversed, or rather, your prior 17 decision should be reversed when you reconsider ALAB G5-1, and 18 it should be remanded for a new hearing, and to include this 19 question of NEpA.

20 All right. Turning to the next question you raised, 21 it was whether or not the Shoreham alternate AC system should 22 be treated as vital equipment during phases 3 and 4 of low 29 power testing. And we think that the ineluctible conclusion 24 is that it should be treated as vital equipment.

25 First of all, there is no plant in the United

12 1 States, nuclear plant, which has an emergency AC system which 2 doesn't treat it as vital equipment The equipment that LILCO 8 is relying on in its new configuration in the exemption is 4 substituing for an on-site AC source, and it should logically 5 be treated in the same manner and given the same safeguards as 6 far as security is concerned.

7 Also, the board below found itself that on certain 8 postulations of accidents that it could affect -- that this 9 equipment was needed to protect the health and welfare of 10 the people. And it fully falls within the definition of the 11 regulations of vital equipment. There's no way it escapes s 12 it. Directly or indirectly, its failure could affect the IS people, the health and safety of the people.

14 We have i nc l eaded affidavits of experts who also say 15 that, in this request for reconsideration.

16 Now, it is one thing to have regulations, and where 17 something falls squarely within a regulation, you uphold 18 it. If you don't like it, you go through the process of 19 changing the regulation, but you don't seek to evade it on 20 some grounds that is not proper.

21 We think for you to say this was not vital 22 equipment, in view of the plain language of the regulations 23 and the function it performs, the safety purposes that it is 24 required for, that it should be deemed vital equipment.

25 The next question you asked is whether the Atomic

13 1 Safety and Licensing Board should have affirmed the --

or the 2 Appeals Board, rather, should affirm the Licensing Board 3 dismissal of physical security contentions for lack of 4 specificity and basis.

5 I would like to point out that I think that question 6 is improperly worded. it's what we call a loaded question in 7 law, a leading question, the kind that --

you know, when did 8 you stop beating your wife question. It really assumes that 9 these contentions were dismissed for lack of specificity or 10 basis.

11 Now, the decision in which these revised contentions were dismissed by the Board was September 19, 1984, it was an 12 13 independent decision, carefully reasoned and worded decision.

14 If you read that decision, you will find that the contentions 15 were not~ dismissed on that basis s they were dismissed either 16 because the Board held that they dealt with vital equipment or 17 vital areas and he rulee against that, or because in one 18 instance he found that heavy weaponry was not required to be 19 considered, and he was wrong on that.

20 in another instance, he ruled with respect to 6 and 21 7 that they were irrelevant, but nowhere -- or possibly one, 22 possibly in Contention 4, there is an implied lack of basis, 23 but he really dismissed that one also because he said it was 24 not vital equipment.

25 Now, the contentions submitted were seven e -. - - . - ,-. .

14 1 contentions covering 15 pages. They are available to the 2 Co.wm i s s i on . There is no question that they contain factual 3 b a.s es . All you have to do is read them, if you read the 4 opinion that dismisses them, he discusses the factual basis 5 for them. In each one, he treats it separately. They 6 commence with Contention 1 on page 12 of his decision. They 7 say it was a carefully worded decision, it is a total of 20 8 pages.

9 CHAIRMAN PALLADINO: Me palomino, your time is 10 up. Could you close in another sentence or two?

11 MR. PALOMINO: Yes. I will close in another k 12 sentence or two.

13 I would just like to say that there really is no 14 ccmpelling reason to issue a low power license at this time on 15 any reconsideration of this question; that there are enough 16 legal impediments to stop this plant and a serious question 17 as to whether it will ever generate power, and no benefits to 18 be gained by low power because it doesn't generate anything.

19 The benefits by way of training and so forth are negligible, 20 and they would occur in any event at a later date.

21 CHAIRMAN PALLADINO: Thank you. You answered a 22 number of my questions, but I still have one. You spoke about 23 the MD and the gas turbine of necessity having to be vital 24 equipment, and you said that if they were not treated as 25 vital, it would lead to public health and safety questions.

15 1 MR. PALOMINO: It could in an accident, t

2 CHAIRMAN PALLADINO: Could you expand a little bit 3 on the basis for that statement?

4 MR. PALOMINO: Well, in event of a LOCA, they have 5 to be able to go on line within 55 minutes, and if they are 6 rendered inoperable, then they wouldn't be able to protect the 7 health and safety, possibly, because there are possible accidents where you might have under that, if you don't meet 9 that time level, a breach of the containment chamber, 10 CHAIRMAN pALLADINO: As I understand the situation, 11 it would take a loss of off-site power, it would take an 12 independent LOCA and then it would take some sabotage of this 13 equipment in order to bring about possible health and safety 14 effects, and of course, it would have to be a set of 15 circumstances to breach containment.

16 Do you have any comments on the combination?

17 MR. PALOMINO: Well, what you are saying is it may 18 be remote, it may be remote but it is possible. It also --

l 19 don't want to go into the security aspects of it, but if these 20 are not secured, they could be used for diversionary purposes 21 by design basis attackers who'could use them as a diversion to 22 go to other sources much more vital and which could lead to 23 the health and safety of the people.

24 You also might have cooperation from the inside at 25 the same time, but I don't think l should go into those

t 16 1 discussions, but the basis is there, it was so found by the 2 Board below. It was found by the Licensing Board, the Appeals 3 Board, and also substantiated in the affidavit of Greg Minor 4 which is attached to our application for reconsideration.

5 CHAIRMAN PALLADINO: Okay. Let me turn t o my 6 colleagues. Any questions?

7 COMMISSIONER ASSELSTINE: I have a couple of 8 questions. On emergency planning, what is the State's role in 9 emergency planning as differentiated from the County's role?

10 I guess what I am getting at is, assuming for a moment that 11 the actions of the County Executive --

12 MR. PALOMINO: Assuming he had full power to act for 13 the County and cooperate with LILCO?

14 COMMISSIONER ASSELSTINE: Yes. Does that resolve 15 the emergency question?

16 MR. PALOMINO: No, it doesn't resolve it because i 17 have to show a plan where they will take actions in the 18 ingestion pathway, which covers 50 miles, and that's outside I 19 of the County Executive's prerogative. That is what the Judge 20 ruled. It is in his judgment that only the State of New York 21 has that power, and any attempt by LILCO or any County f

l 22 Executive would be usurpation of that power.

23 COMMISSIONER ASSELSTINE: Okay. So the State i

24 position remains that they have responsibilities and roles in t 25 emergency planning and are not prepared to carry those out, l

l l

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4 17 1 and that therefore there are defects or deficiencies.

2 MR. PALOMINO Yes, that's right.

3 CHAIRMAN PALLADINO: Can I ask a question of 4 clarification? What does the State have to do out to 50 5 miles?

6 MR. PALOMINO: Well, there has to be the right to 7 condemn food. There has to be a right to protect food. There 8 has to be a right to protect the water supply and so forth.

9 You have to show the means to do it when you present a 10 plan in the food ingestion pathway, among other things. And 11 the County would not have the power, and only the State Health 12 Commissioner and the agricultural markets and the State 13 Oepartment -- conservation.

14 COMMISSIONER BERNTHAL: You are saying in effect, 15 then, that it is not a question of the State having the 16 resources to do that, but they simply would refuse to do i

i 17 that? Is that your argument?

18 MR. PALOMINO: Yes, that's my argument. That is the 19 Cos err or 's position.

20 COMMISSIONER BERNTHAL: And the State would not l

! 21 c4 - y out its protective functions in the event of an 22 accident?

23 MR. PALOMINO: No. What we are saying is we won't I

24 carry them out or agree to carry them out to put this plant on 25 line and present us with a hazard where we might have to.

4 18 1 COMMISSIONER BERNTHAL: Well, what specific 2 resources, though, are involved on the part of the State for 3 the evacuation plan itself?

4 MR. PALOMINO: The State is not playing any part in 5 cooperating with it. As a matter of fact, we have

. 6 disconnected the phones that we used to have connected to 7 LILCO.

8 CLaughter]

9 COMMISSIONER BERNTHAL: Aside from the telephones, 10 though, what resources would be involved on the part of the 11 State in the evacuation were you to cooperate?

I

\ 12 MR. PALOMINO: Well, for example, were we to 13 cooperate, vital cleaning snow on the Long Island Expressway 14 in the winter, if you have five or more inches of snowfall or 15 any snowfall, you have to have the highway cleaned. That is 16 your major evacuation route. It is a state highway and state 17 responsibility. They not only will not, but they took a 18 survey of the people who worked for the state, and they 19 wouldn't go into the =one because they are not paid to.

20 COMMISSIONER ASSELSTINE: Well, that applies to the 21 ten-mile zone as well as the 50?

22 MR. PALOMINO: Yes, sure. As a matter of fact, 23 when we have had five or more inches of snow, it takes five 24 days to clear the cars off the Long Island Expressway. You 25 have to back payloaders up the exits and take all the stalled

19 1 cars out with loads of snow. And we are not going to agree to 2 do that so we can put this plant on line. It's not a question 3 of not doing it if there is an emergency.

4 COMMISSIONER BERNTHAL: is that greatly different 5 from the state power plant at Indian Point, for example?

6 MR. PALOMINO: Yes, it's greatly different. I don't 7 want to get into all these details, but at Indian Point, you 8 have roads away in almost every direction once you get shortly 9 away, so that in the event of a nuclear incident, you can give 10 people a free run not matter where the plume is drifting or 11 what, in almost any direction. And then Long Island, because

(.

m 12 of the configuration of the Island, you have four limited 13 highways East-West. The only feasible evacuation is west. As 14 you go west, you go into a denser and denser population, 15 starting with a few million in the next county and 8 million 16 in New York City, and these highways are over-utilized under 17 ordinary circumstances.

18 COMMISSIONER BERNTHAL: But it doesn't take five f

19 days at Indian Point or at Nine Mile Point or at any other 20 plants in the state. You are saying it would on Long Island?

21 MR. PALOMINO: You have roadway networks going in 22 every direction of the compass. You are not limited -- the 23 problem is you have limited highways on Long Island.

24 East-West, you have two major highways and that's it.

25 COMMISSIONER BERNTHAL: But you said it takes five

9 20 1 days, and I am asking why isn't that true for all other plants 2 in the state, if there are more roads, especially?

3 MR. PALOMINO: Because, first of all, all of them 4 are not state highways. You have county highways and you have 5 town roads. Then you have major state highways, and there 6 they can go from one road to another. Everybody is 7 cooperating. You have four counties plus the state 8 cooperating.

9 COMMISSIONER ASSELSTINE: Does the State have a 10 position on the validity of the Executive Order?

11 MR. PALOMINO: Yes. The State's position is the

k. 12 Executive Order -- you mean the one issued by the Chairman?

13 We think it is invalid.

14 COMMISSIONER ASSELSTINE: Okay. So you don't think 15 even as far as the County is concerned that that --

16 MR. PALOMINO: No. Like I said, I think there is a 17 question about the feasibility to do what he claims he can do.

18 COMMISSIONER ASSELSTINE: On the security 19 contentions, as I understand it, you and the State and the 20 County had joint contentions on the security issues. If 21 Suffolk County drops out on the security issues, does the --

22 MR. PALOMINO: Well, the State still intends to 23 object.

24 COMMISSIONER ASSELSTINE: You don't intend to drop 25 out?

21 1 MR. PALOMINO: No. We have an independent right et 2 object on Federal law and other rules of the Board, and we 3 would intend to object, to keep objecting.

4 COMMISSIONER ASSELSTINE: The other question I had 5 -- maybe you can answer it from your perspective, and I also 6 want to hear LILCO's view on it as well -- is this agreement 7 that was entered into, the one between LILCO and the County, 8 the additional security agreement, the low power security 9 agreement.

10 MR. PALOMINO: I don't know anything about it. If 11 they have sent it to me, they probably sent it last night or 12 today, and I have been down here.

13 COMMISSIONER ASSELSTINE: Okay. I will ask LILCO 14 about that.

15 MR. PALOMINO: Well, we wouldn't be bound by that 16 anyway.

17 COMMISSIONER BERNTHAL: I am surprised, frankly, 18 because the crux of much of your argument seems to be resting, 19 apparently, still on safety judgments rather than on the 20 ~ principle of procedural Irregularity here, which is the way 21 you began your statement.

22 MR. PALOMINO: No.

28 COMMISSIONER BERNTHAL: But I am curious to know.

24 though, however that may be, whether or not it is the fact, is 25 the opposition of the State and the Governor now based upon

s D

22 1 his unwillingness to impose an emergency plan on Suffolk 2 County or tjp,is remaining independent view on the part of the 3 Governor and the State that that plant simply can't be e

4 operated safely?

5 MR. PALOMINO: He said he wouldn't impose one and he 6 wouldn't cooperate.

7 COMMISSIONER BERNTHAL: But I think that what their 8 contention was was flatly that the plant cannot be operated 9 safely, was it not? ,

10 MR. PALOMINO: No, it's two different things.

11 COMMISSIONER BERNTHAL: Is that still your position?

t

\. 12 MR. PALOMINO: No, it is two things. One is that 18 after the Marburger hearings, the more he listened to the 14 scientists of Brookhaven trying to convince him for three 15 hours1.736111e-4 days <br />0.00417 hours <br />2.480159e-5 weeks <br />5.7075e-6 months <br /> that the plant was safe, the more he became convinced 16 that it's not safe and that it won't generate the 17 electricity. We will have the problem we had with Indian Point 18 S. I don't know if it operates 3 to 30 days a year, and it 19 wasn't worth putting the people at risk where you can't have a 20 safe evacuation. So it is both of those things.

21 COMMISSIONER BERNTHAL: But it rests strictly on the 22 emergency evacuation question?

28 MR. PALOMINO: No, also the safety of the plant. He 24 doesn't feel it is safe and he doesn't feel you can have a 25 safe evacuation, and he feels that at Long Island you should

23 1 have the safest evacuation because of the density of the 2 population.

3 COMMISSIONER BERNTHAL: And what specifically does 4 he feel -- leaving aside the question, and the complicated 5 question, I will grant you, of the emergency power and whatnot 6 -- let's assume for the moment that those problems are 7 resolved one way or another adequately in the time ahead.

8 Obviously, then, you are still maintaining the position that 9 even if all of that were resolved by the book, so to speak, 10 then the position would still be that that plant can't be 11 safely operated? Is that correct?

i 12 MR. PALOMINO: It's a question of who resolves it, i 18 think.

14 COMMISSIONER BERNTHAL: Resolved in compliance with 15 our regulations. The same criteria that applies for all other 16 plants.

17 MR. PALOMINO: I don't want to speak for the 18 Governor, but I am inclined to feel that that would not i

19 necessarily alter his judgment to suddenly be happy about it.

20 COMMISSIONER BERNTHAL: So from your standpoint the i

1 21 fact remains, then, that the plant will never operate and 22 therefore the NEpA consideration remains a consideration. I 23 gather that is the thrust of NEPA.

i 24 MR. PALOMINO: No. Well, I think everything that l l 25 have urged here is the denial of due process, the failure to l

l

9 h

24 1 consider NEPA, the lack of any benefit to be gained, the 2 question of not having or needing the security are all 3 relevant. I think on the first group they want reversals and 4 a fair hearing and an opportunity to explore it, and this 5 Commission should explore NEPA.

6 1 don't think the relative benefits you are talking 7 about outweigh this by any means. I mean the idea that it i 8 should be a signal to Wall Street -- well, LILCO hasn't 9 signaled Wall Street; they gave them financing up to the end 10 of the year. They don't need it. They don't have a financial 11 problem now. That was mentioned in the Licensing Board's 12 decision.

13 CHAIRMAN PALLADINO: I thought you had made an 14 assertion that answered one of my questions, but now I believe 15 I had better ask it. In light of the County's intent to 10 review the Shoreham emergency plan of participating in an 17 exercise, does the State continue to assert that an adequate 18 emergency plan is not feasible; that there will never be full 19 power operation, and thus the Commission is required under 20 NEPA to prepare a supplemental Environment impact Statement 21 for Shoreham which weighs the cost of low power operation 22 against new benefits?

23 MR. PALOMINO: Yes. We are saying that. We are not 24 going to cooperate. We are going to fight it.

25 CHAIRMAN pALLADINO: But you do assert that this is

s 2'5 1 the situation?

2 MR. PALOMINO: Yes, that NEPA should be considered 3 in light of 'the fact that they --

4 CHAIRMAN PALLADINO: Well, there are three parts.

5 You say an emergency plan is not feasible and that there never 6 will be full power operation and thus you need --

7 MR. PALOMINO: Yes. We say legally feasible, yes.

8 COMMISSIONER BERNTHAL: So the point is -- we will 9 hear from who speaks for Suffolk County soon, I guess, but 10 however that resolves itself, your view is still that that 11 plant will never operate and therefore --

12 MR. PALOMINO: Yes. There are legal impediments 13 which we control, and it won't operate as long as we can 14 control the legal impediments.

15 COMMISSIONER BERNTHAL: And there remains, 16 therefore, a legal obligation under NEPA consonant with your 17 presumption that it will never operate, regardless of what 18 Suffolk County does.

19 MR. PALOMINO: 1 think if NEPA makes that 20 foreseeable change because it was based on full power 21 operation, since you are not going to have it, you have to 22 look now at low power. What are the benefits? What are the 23 cost-benefits?

24 COMMISSIONER BERNTHAL: No matter what the County 25 does, though, in other words, based solely on the judgment of

26 1 the State --

2 MR. PALOMINO: It's not the judgment. It's the fact 3 that the Court has ruled that the State has this power and 4 that the County would be illegally usurping it if it tried to 5 fulfill it, and therefore you can't have an off-site emergency 6 evacuation plan that is legally implementable.

7 COMMISSIONER ASSELSTINE: I just want to make sure 1 8 understand your position. If the Commission does decide that 9 the backup power systems are not vital equipment, is there 10 something left of your physical securi'ty contentions?

11 MR. PALOMINO: Well, I think we have a pending 12 Contention No. 2 before the Kelley Board which doesn't go to 13 vital equipment.

14 COMMISSIONER ASSELSTINE: Okay. You say that your 15 position is that there is something left there that is not 16 dependent upon the judgment of whether the backup systems are 17 vital equipment or not.

18 MR. PALOMINO: Well, it was before the Kelley Board, 19 yes, Contention No. 2.

20 COMMISSIONER ASSELSTINE: Okay, Contention No. 2.

21 MR. PALOMINO: I would like to point out something.

i 22 You know, it's not that we are afraid of nuclear power. We 23 have five other plants in the state, and we have a commitment 24 from the Governor to fulfill Nine Mile 2, but it doesn't 25 present the hazard to the substantial population that this one

27 1 does.

2 COMMISSIONER BERNTHAL: Isn't it a little difficult S to tell, though, whether the emergency plan is implementable

~

4 and is practical unless you try?

5 MR. PALOMINO: No, not if you have had the 6 experience of life on Long Island.

7 Claughter]

8 You know, when Commissioner Harr i r.gt on came there, 9 he came by plane, he didn't come by car -- or Secretary, I'm to sorry. He might have had a different view of it. And not 11 only that, but to schedule an exercise at 10:00 doesn't mean 12 anything. Suppose everybody is home when you have an incident, 13 at suppertime, at night, or breakfast in the morning when 14 everybody is already on the highway heading for work, and now 15 you have everybody at home, the school kids, and they are 16 going to try and load that up. You know, it's just --

17 experience is worth more than logic and is worth more than a 18 paper exercise or a make-believe exercise or an exercise at a 19 selected hour that doesn't really test what could happen in 20 reality.

21 COMMISSIONER BERNTHAL: So you are unwilling to 22 accept the judgment, for example, of what would be a real 23 exercise?

24 MR. PALOMINO: It's not me. I think the Governor 25 said to the press last week that he would accept it if he were

28 1 the umpire and he felt it was really fair.

2 COMMISSIONER BERNTHAL: I will sympathize with the 3 problem on the Long Island Expressway. I have experienced 4 that myself.

5 That's all I have.

6 CHAIRMAN PALLADINO: Any other questions?

7 CNo response]

8 CHAIRMAN PALLADINO: Thank you very much, 9 Mr. palomino.

10 I wonder if we could have Mr. Martin Ashare join us 11 at the table.

/

12 MR. ASHARE: Mr. Chairman and members of the IS Commission, l' would like to introduce Arlene Lindsay, who is a 14 Deputy County Attorney, and I would appreciate it if s:he could 15 remain with me at the table during the presentation.

16 First let me address the question of the day, which 17 is roughly described as: Will the real legal representative of 18 Suffolk County stand up?

19 ELaughter]

20 I have sent a letter to the Commission, and we have 21 informed the Commission that, as of yesterday, the County 22 Executive has terminated the services of Kirkpatrick Lockhart, 23 formerly counsel to the County in the Shoreham licensing 24 proceedings.

25 Under the Suffolk County Charter, Section 1502, and

29 1 the County Law of the State of New York, Section 501, the 2 county attorney is in charge of all the legal business of the 3 county, and therefore, I have filed a notice of appearance 4 with the Commission and appear here today as the legal 5 representative of the County of Suffolk.

6 Let me also say that we have not abandoned nor will 7 we abandon any of the safety concerns previously addressed by 8 the County throughout the Shoreham licensing proceedings, and 9 i will be more detailed in our presentation.

10 . Our previous position was that a low power license 11 should not be issued since there was no possibility a full 12 power license could be obtained in view of Suffolk County's 13 prior determination not to participate in an off-site 14 radiological emergency response plan.

15 Our position has now been modified to the following 16 extent. The County Executive has issued an Executive Order 17 directing the Commissioner of police and the Director of 18 planning to conduct a test and exercise of the local 4

19 radiological emergency response plan with Suffolk County 20 assuming command and control functions.

21 To the extent that we previously argued that a low 22 power license should not be issued because of the ultimate 23 impossibility of implementing a local RERP, we have now 24 modified that position. However, to the extent that we have 25 objected to the Commission granting an exemption to LILCO

30 1 from NRC regulations, we have not withdrawn those objections 2 and continue to exert them, or to assert them, except to the 3 extent that our concerns relating to the security of the 4 backup power sources have been satisfied to the extent that an 5 agreement has been entered into between the County and LILCO, 6 a copy of which has been filed with the Commission.

7 Needless to say, our objections with respect to NEpA 8 have also been modified to the extent that a low power -- or a 9 full power license may now be possible in the event that the 10 testing of the radiological emergency response plan proves 11 favorable.

f So the full power license, in 12 CHAIRMAN PALLADINO:

13 your mind, is possible?

14 MR. ASHARE: Is possible, dependent upon the 15 favorable results of the radiological emergency response plan 16 as directed by the County Executive.

17 We continue to assert the questions with regard to 18 the backup power sources and the TDI diesels, primary source 19 diesels. Specifically, we take exception to the exigent l

20 circumstances findings and the "as safe as" findings by the 21 Commission, and we continue to assert that exemption should 22 not have been granted.

23 CHAIRMAN PALLADINO: Well, I will let you continue 24 and come back, i

j 25 MR. ASHARE: I am finished with my presentation at

31 1 this point.

2 CHAIRMAN pALLADINO: What I am not clear on is the 3 question 1 asked, it was my impression based on the submittal 4 that the County had found that the emergency plan is favorable 5 -- or I'm sorry, is feasible, and that it is possible to t

6 consider that this plant could go to full power.

7 MR. ASHARE: Chairman palladino, our position is 8 that we are willing to test, our minds are open, and we will 9 marshal the resources of the County to attempt to test an 10 emergency response plan and determine whether or not it is 11 feasible to implement such a plan. Assuming that that test or 12 the results of that test are favorable, then certainly I could 13 say that a full power license would be possible.

14 COMMISSIONER BERNTHAL: What is the view, then, of 15 the County with respect to the comments that we just heard on 16 behalf of the State and the Governor's Office? My 17 understanding is that their position is that it is simply not 18 possible to carry out an exercise of that type successfully, i 19 guess in principle, and certainly not without the cooperation 20 of the State.

21 MR. ASHARE: Well, we feel that we can carry it out 22 without the cooperation of the State. The position of the 23 Governor heretofore has been that he would not force a plan on 24 Suffolk County, and now I am hea.Ing the position that the 25 State would not cooperate regardless of the County's desire to

32 1 develop and implement a local emergency response plan.

2 CHAIRMAN PALLADINO: But do I understand, though, 3 that the County would participate, would review the plan and 4 participate --

5 MR. ASHARE: That's correct. We have directed the 6 Commissioner of police and the Director of Planning to 7 participate in such an exercise.

8 CHAIRMAN PALLADINO: How should the Commission

! 9 determine who speaks for the County at this time?

10 MR. ASHARE: Well, I can only point to the sources 11 which I cited to you in my opening, Chairman palladino, the t

I

(,

12 sections of the Suffolk County Charter and the section of the 13 county law.

14 CHAIRMAN PALLADINO: Well, the reason i raise the 4

15 question is that somewhere back a ways, we got an indication 16 that the County Legislature had voted overwhelmingly to oppose 17 this plan -- I'm not sure I'm paraphrasing it right --

and now 18 the County Executive says, well, but we are going to 19 participate. I was wondering who has the authority to speak.

20 MR. ASHARE: Based on the advice from the County 21 Attorney's office, the County Executive has taken the position 22 that under Article 2(b) of the Executive Law of the State of 23 New York, those functions, the functions of emergency 24 preparedness, the police power functions and so forth, are 25 pecullarly witnin the ambit of the executive powers under the

33 1 Suffolk County Charter, and that therefore, he has the power 2 to direct the appropriate personnel of the county to 3 participate in such an exercise.

4 COMMISSIONER BERNTHAL: Could you provide the 5 Commission with copies of your charter so that we can evaluate 6 that?

7 MR. ASHARE: Sure. I think we have them right here.

O COMMISSIONER BERNTHAL: It doesn't have to be right 9 now, but after the meeting, perhaps.

10 CHAIRMAN PALLADINO: Could you clarify what it is 11 that you stipulated with LILCO?

k 12 MR. ASHARE: We furnished a copy of the agreement to 13 you, and I believe the agreement with LILCO has to do with the 14 security for the low power alternate generating source 15 enhancements, and we are satisfied now that there is adequate 16 security for the so-called backup enhancement power.

17 CHAIRMAN PALLADINO: So is that the essential 18 feature of the agreement that you reached?

19 MR. ASHARE: Yes, that is the agreement, And they 20 have agreed on their part to treat the backup diesels or 21 the backup enhancements as vital equipment.

22 CHAIRMAN PALLADINO: Okay.

23 Mr. Roberts? Commissioner Asselstine?

24 COMMISSIONER ASSELSTINE: I had a couple of 25 questions. I'm still having a little difficulty understanding

, - . ,4 -

34 1 what is left of your contentions, what is settled, what 2 positions you no longer take, and wha t items you still 3 contend. Maybe we could go through each of the items 4 individually.

5 Physical security. You are saying that under the 6 agreement, LILCO has agreed to treat the backup equipment as 7 vital equipment 8 MR. ASHARE: Correct.

O COMMISSIONER ASSELSTINE: So in your view, that 10 moots out that issue and you are no longer --

11 MR. ASHARE: Also, they have agreed -- they have 12 gone into arrangements for that security, which I am not at 18 liberty to discuss, but they have satisfied the County that 14 they are adequate, as I am informed by our Police Department 15 COMMISSIONER ASSELSTINE: Okay. And the factual j 16 information is available to demonstrate that, in fact, that 17 equipment will be treated as vital equipment.

l l 18 MR. ASHARE: Correct l

19. COMMISSIONER ASSELSTINE: Okay. So there is nothing 20 left of the physical security issues as far as the County is l

21 concerned.

22 MR. ASHARE: Correct

! 23 COMMISSIONER ASSELSTINE: How about the NEPA issue?

l 24 1s that gone entirely now?

25 MR. ASHARE: I believe that is gone entirely now,

35 1 yes, sir.

2 COMMISSIONER ASSELSTINE: As far as the County is 3 concerned, that's gone. Okay.

4 MR. ASHARE: In view of the fact that there is now a 5 possibility that there will be a full power license.

6 COMMISSIONER ASSELSTINE: All right.

7 The emergency planning issues. I take it that is 8 one that is m' ore in doubt.

9 MR. ASHARE: Well, when i say in doubt, our mind is 10 open on that issue and we are willing to' enter into a test to 11 determine whether or not a plan is implementable.

k 12 COMMISSIONER ASSELSTINE: All right. So right now 13 you don't take the position that there is in existence a plan 14 that can and will be implemented, but you are prepared to see 15 how an exercise goes?

16 MR. ASHARE: We want to take a good, hard look at 17 the results of that drill.

18 COMMISSIONER ASSELSTINE: Okay. Are the only 19 things, then, that are left apart from that open question on 20 emergency planning, then, your continuing objections to the 21 Commission's prior decision with respect to the exigent 22 circumstances finding and the "as safe as" finding? Is that 23 all that is left?

l 24 MR. ASHARE: As far as the proceeding before this 25 Board today, correct.

36 1 COMMISSIONER ASSELSTINE: So those are the only 2 things as far as the County is concerned that we still have to 3 address?

4 MR. ASHARE: That's correct, Mr. Asselstine.

5 COMMISSIONER ASSELSTINE: Okay. I think that's what 6 I needed to know. Thank you.

7 COMMISSIONER BERNTHAL: I have just a couple of 8 questions yet.

9 On the NEpA question, which finally comes down to 10 one, for our consideration, at least, of whether at least a 11 substantial possibility exists that the plant will operate.

k 12 in your judgment, is it feasible or possible with the 13 continued opposition of the State and the Governor that this 14 plant can operate anyway?

15 MR. ASHARE: I believe so. We have every reason to 16 believe, Mr. Bernthal, that we will obtain the cooperation of 17 the County of Nassau in any emergency planning that needs to 18 be done, which leaves us with the state roads, basically 19 Northern and Southern State parkway, and the Long Island 20 Expressway.

21 - COMMISSIONER BERNTHAL: And in your judgment --

22 MR. ASHARE: We patrol it, but they plow it, 23 although we understand the State police want to take it over.

24 COMMISSIONER BERNTHAL: la this a recent desire or 25 longstanding?

4

b 37 1 MR. ASHARE: That has been a longstanding desire, 2 and I dare say our police department and the State police will 3 slug it out one day.

4 Claughter3 5 CHAIRMAN pALLADINO: This is on patrolling?

6 MR. ASHARE: We patrol the Long Island Expressway.

7 They plow it.

8 CHAIRMAN PALLADINO: But the State police don't want 9 to plow it, though, do they?

10 MR. ASHARE: No, they just want to patrol it. They 11 would like us to plow it.

12 COMMISSIONER BERNTHAL: One last question, and 18 again, it touches on this broad NEpA question. Don't 14 misunderstand me. I'm just trying to get a picture here of 15 how your county government works, and therefore, in the long 16 run --

17 MR. ASHARE: When you find out, I would like to know 18 also.

19 ELaughter]

20 COMMISSIONER ROBERTS: Well, you will have to share 21 that information with us.

22 COMMISSIONER BERNTHALt is the Legislature of the 28 County empowered as a legal matter to overturn the County 24 Executive in the judgment that he has recently made and the 25 actions he has taken? If so, how could they do that?

SS 1 MR. ASHARE: In my judgment, no.

2 COMMISSIONER BERNTHAL: I see.

S COMMISSIONER ROBERTS: If you wait a couple minutes, 4 you will hear the other end.

5 MR. ASHARE: I think Mr. prospect will no doubt 6 address himself to that issue.

7 COMMISSIONER ASSELSTINE: If I could follow up on 8 that, Fred, who controls --

9 MR. ASHARE: LJell, in order for the Legislature to 10 act or do anything, they have to meet as a body at either our 11 regular or a special meeting, adopt a resolution by at least a i Some resolutions may be subject to a veto by 12 majority of ten.

18 the County Executive, in which case there would be a 14 requirement of an override by 12 or more legislators.

15 COMMISSIONER BERNTHAL: I see. So it is two-thirds 16 for an override?

17 MR. ASHARE: If there is a necessity for County 18 Executive Action. There are some resolutions that do not 19 require County Executive action.

20 COMMISSIONER BERNTHAL: I see.

21 COMMISSIONER ASSELSTINE: If I could follow up on 22 that, to what extent does the Legislature control resources 28 that would be involved in emergency planning, or can they 24 control them?

25 MR. ASHARE: Well, to the extent that from year to

89 1 year they adopt a budget, they have the same power as the 2 Congress of the United States has, which is the ultimate power 3 of the purse, but they have no directory function during the 4 course of the fiscal year. Once the budged is adopted, then 5 it is uniquely the function of the County Executive to carry 6 out and implement that budget, to spend the money, to enter 7 into contracts, to direct the various departments of county 8 government.

9 COMMISSIONER ASSELSTINE: Would their authority 10 extend to prohibiting the use of resources to carry out 11 certain functions?

12 MR. ASHARE: Well, then you get inte the legislative la veto, and that has been the subject of a tremendous amount of 14 litigation and decisions by the United States Supreme Court, 15 So you have the question both ways: executive impoundment of 16 monies and leglstative impoundment, so-called legislative 17 veto.

18 COMMISSIONER BERNTHAL: Are you suggesting that 19 while the County Executive has the police powers and authority 20 for this fiscal year, and granted, at least as things appear 21 to stand now, at least some exercise of the emergency plan can 22 in principle take place, that even having completed that, 23 whatever the outcome in the judgment of FEMA might be with 24 respect to the emergency plan, that then next year the County 25 in its budget cycle could refuse to appropriate any funding

m 9

40 1 for --

2 MR. ASHARE: I wish I had a crystal ball to tell you 3 what the Legislature might or might not do.

4 COMMISSIONER BERNTHAL: But that is not ruled out?

5 MR. ASHARE: They certainly do have the power of the 6 purse, as I indicated to you, and they have the power to amend 7 the budget, although, interestingly enough, the County 8 Executive has the power that the president of the United 9 States does not have, and that is he has line item veto over 10 items in the budget.

1~ 1 So he could single something out and veto that item, 12 in which case it would be the necessity of a 12-vote override.

13 COMMISSIONER BERNTHAL: I have to say that I don't 14 want to be comforted by the troubles of others, but it is 15 interesting to see that someone else seems to have more 16 complex problems than we do sometimes. That's all I have.

17 COMMISSIONER ZECH: Just one question. I understand 18 your position on the emergency evacuation plan. Looking at 19 the 5 percent power possibility, could you elaborate just a 20 little bit on the issues you see left for the 5 percent 21 power? You touched on them lightly, but could you elaborate 22 just a little bit more?

23 MR. ASHARE: Well, our basic problem is on the 24 diesels, and we have severe concerns about the alternate 25 energy source in the event of a LOOP /LOCA. Our judgment or

41 1 our position still is as articulated in the paper submitted by 2 counsel for the County with respect to the arguments on "as 3 safe as" and exigent circumstances.

4 COMMISSIONER ASSELSTINE: So again, you don't view 5 those as an adequate substitute?

6 MR. ASHARE: No.

7 CHAIRMAN PALLADINO: Well, thank you very much.

8 I wonder if we could now have Mr. Wayne Prospect 9 join us at the table.

10 MR. PROSPECT: May I be joined by one of my 11 colleagues?

(

'- 12 CHAIRMAN PALLADINO: Yes. Would you introduce him?

13 MR. PROSPECT This is Legislator Robert LaBua.

14 Before we begin, Legisla. tor LaBua and I are here 15 today with a bipartisan contingent of members of the Suffolk 16 County Legislature. For the record I would like them to stand 17 and they could state their names. Would that be okay with 18 you?

19 CHAIRMAN PALLADINO: Well, let them stand, and then 20 you can give un their names for the record.

21 MR. PRO 3PECT: From your right to left, in the front 22 is Legislator Sondra Bachety, Legislator John Foley, in the 23 next row, Legislator Steven Engelbright. Legislator Gregory 24 Blass, Legislator Philip Nolan, and in the next row, 25 Legislator James Morego.

4 42 1 CHAIRMAN PALLADINO: And are they supporting your 2 statement? Is that the implication of introducing them?

3 MR. PROSPECT: Yes. Members of the Legislature came 4 down today to discuss this issue with you. You are in receipt 5 of a letter that a majority of the Suffolk County Legislature 6 sent to our counsel, Mr. Herbert Brown of Kirkpatrick and 7 Lockhart, Indicating that it was the conviction of the 8 legislators, at least the majority of them -- and it was 9 difficult reaching everyone over the weekend -- at least the 10 majority of them at this point, that we believe the whimsical 11 Executive Order by the County Executive is illegal and

( 12 unlawful and should be considered null and vold.

13 We are here today specifically to ask you to 14 postpone any decision on the low power license, for the simple 15 reason that legally.the County is in disarray. Suffolk County 10 right now is in legal disarray, it is in legal disarray 17 because of the County Executive's --

as 1 indicated --

18 whimsical and precipitous Executive Order on the issue of the 19 evacuation, on the lasue of a radiological omergency response 20 plan.

i 21 IJe believe that Executive Order is lilegal and is 22 unlawful and should be considered, as I said, null and vold.

23 What is the position of Suffolk County?

24 Mr. Chairman, you asked who speaks for Suffolk County. I dare 25 may the law speaks for Suffolk County. Being a nation of law

l.

i 43 1 and not a nation of men, that's the way it should be. The law 2 speaks for Suffolk County.

3 Let me quote the comments of Suffolk County 4 Executive Peter Cohalan on February 23, 1983, the statement of l

5 Suffolk County Executive Cohalan upon signing County 4

6 Resolutions No. 111 of 1983 and 113 of 1983. Notice how In.

7 his comments, the word " legislature" will be used.

O "Last week the County Legislature and I announced 9 our views on radiological emergency preparedness in Suffolk to County, We reached the identical conclusions that it would be i

11 impossible to protect the public health and welfare and safety 12 If there were a serious nuclear accident at the Shoreham 13 plant.

14 "Today I will sign Resolution 111-1983" -- a t 1 1

15 resolution he introduced, a resolution formerly adopted by 1

to the Suffolk County Legislature. "I will sign County 17 Resolution 111, which sets forth that conclusion and, 18 accordingly, resolves that this County Government will not 19 adopt or implement a radiological emergency response plan for 20 Shoreham "

21 Later in that statement, one more quick i

22 paragraph: "I am convinced," the County Executive says, "that 23 the County Legislature and Executive have acted for the 24 public good and that our action is right for the safety of 25 Suffolk County residents, it is thus with great satisfaction

44 1 that I have the privilege to sign into law Resolutions 111 and 2 113, 1983."

3 The position of the Suffolk County Government has 4 not changed. President Reagan is President of the United 5 States; he is not the United States. Peter Cohalan is a 6 county executive; he is not the county.

7 Resolutions introduced and adopted by the Suffolk 8 County Government, approved by the Suffolk County Legislature 9 a'n d signed into law -- specifically, for the record, 10 Resolutions 262 of 1982, 450 of 1982, 111 of 1983, 113 of 1983 11 -- those resolutions, those local bills are still on the i books. They have not been rescinded.

12 13 The County Attorney, Mr. Ashare, does not represeant 14 the legislated position of Suffolk County. He only represents 15 the personal opinion of the County Executivo, and there is a 16 difference. tJe are a nation of law, not of men. Mr. Cohalan 17 is entitled to his new personal view and he is entitled to 18 have someone speak for him, but he does not now speak for the 19 County until he introduces a resolution that voids previously 20 adopted County legislation.

21 The Executive Order of May 30th --

22 COMMISSIONER BERNTHAL: Excuse me. Are you 23 suggesting that he does not have the police powers which we 24 were just led to believe are provided him under your charter?

25 MR. PROSPECT: That is correct, and I will continue

9 45 1 with what we are prepared to do about that.

2 The Executive Order of May 30th is an attempt by 3 Mr. Cohalan to usurp the legislative functions of government 4 and reverse county policy on a whim. The Executive Order is 5 in direct violation of county resolutions, and I will repeat 6 them because they are worth repeating: 262 of 1982, 456 of 7 1982, 111 of 1983 and IIS of 1983.

8 Members of the County Legislature plan to institute 9 a law suit within 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br />, and we will seek a prompt legal 10 solution to the present legal conflict. By prompt, we are 11 hopeful within the next two weeks.

(' 12 I implore the Commission not to take advantage of 13 Suffolk County and the people of Suffolk County while this 14 present legal disagreement between two branches of government 15 is in existence. We are especially vulnerable now because of 16 the precipitous and whimsical action of the County Executive, 17 so I implore the Commission to wait, to wait several weeks, to 18 wait two weeks until a court of law has an opportunity to 19 review the Executive Order, the lawfulness of that Executive 20 Order.

21 When the legal conflict is resolved, the question of 22 legal representation wi I also be resolved. I repeat, 28 gentlemen, Mr. Ashare is not authorized to represent Suffolk 24 County on Shoreham. When Mr Canalan's Executive Order is 25 declared null and void by a court of law, the Kirkpatrick and

46 1 Lockhart law firm will resume its representation of Suffolk 2 County on all Shoreham matters.

3 CHAIRMAN PALLADINO: May I ask you a question 4 there? One of my questions was going to be: Is the firm of 5 Kirkpatrick and Lockhart authorized to act on behalf of the 6 County, at least i t, your opinion, at the present time?

7 MR. PROSPECT: Well, it is hard for me to venture an 8 opinion on that. I have seen the contract, and the County 9 Executive signed that contract on behalf of Suffolk County. He 10 didn't sign it on behalf of himself. So I am not an 11- attorney. In my opinion, he was wrong and it was illegal for I

12 him to do what he did.

13 The law firm -- and I am sure you can appreciate the 14 reasons.-- feels itself in a predicament as of the present 15 moment. However, when the Executive Order is reversed -- and 16 members of the Legislature feel quite confident that the 17 Executive Order will be declared null and void by the courts 18 of the State of New York -- then Kirkpatrick and Lockhart can 19 in all conscience and with all due respect to ethical 20 considerations resume their professional responsibility to the 21 County of Suffolk.

22 CHAIRMAN PALLADINO: So your position at the present 23 time is that, at best, it's a confused situation.

24 MR. PROSPECT: It's a terribly confused situation, 25 and it's a confused situation brought about by one

47 1 individual. That one individual was entitled to change his 2 mind, but the legal question will be: is he now entitled to S represent the entire Suffolk County position? We certainly 4 call that into question, to say the least.

5 We will take that into court and we will just ask 6 the Commission -- and we don't anticipate that this will be a 7 protracted legal battle. We don't anticipate protracted legal 8 conflict on this. We see this as, if you will, a black or 9 white situation, and we are confident that the courts of the 10 State of New York will treat it as such, and hopefully within 11 two weeks we can get a resolution of this.

12 COMMISSIONER BERNTHAL: Is the County Exscutive 13 popularly elected? That is, is it an elected office?

14 MR. PROSPECT: Yes, he is, that's correct.

15 COMMISSIONER BERNTHAL: I have one other question 16 referencing one of your earlier comments. Exactly to whom 17 does the County Attorney answer, to the Executive or to the 18 Legislature?

19 MR. PROSPECT: The County Attorney --

20 COMMISSIONER BERNTHAL: Who is his boss?

21 MR. PROSPECT: He is appointed by the County 22 Executive -- and Mr. Ashare, correct me if I'm wrong, is 23 their a legislative approval for that?

24 MR. ASHARE: That's correct.

25 MR. PROSPECT: So in all matters he represents --

if

I 48 i 1 the County is sued, it is the County Attorney's office that 2 handles the litigation. The question here is, is Peter s 3 Cohalan -- because that is who we are talking about. We are 4 talking about the Suffolk County Executive. Is he entitled to 5 unilaterally change County policy on radiolcgical emergency 6 response planning questions by himself? Is he allowed to do 7 that? Legislation that he himself introduced. Legislation 8 that was passed into law by the County Legislature. That 9 legislation that defined the policy of Suffolk County 10 Government on the Shoreham question.

11 Gentlemen, that legislation is still on the books.

/

12 CHAIRMAN PALLADINO: Mr. prospect, for several 18 minutes we have been over your five minutes, but we have 14 interrupted you. Did you have any other point before we extend 15 the questioning?

16 MR. PROSPECT: You should also take note that even 17 under the County Executive's present Executive Order, his 18 authority, if you will, as claimed by Mr. Ashare, does not 19 extend to the five East End towns, in Suffolk County we have 20 ten towns that comprise the county, the five West End towns 21 comprise the Suffolk County police District and are served by 22 the Suffolk County police Department The five East End towns 28 have their own town police departments.

24 So, given the position of Mr. Ashare, the Executive 25 Order would not even extend to those towns because they have

t 49 1 their con indigenous police force and they fall within the 2 emergency planning zone.

3 COMMISSIONER BERNTHAL: Are you saying that they 4 will or will not cooperate, then, in exercising an emergency 5 plan?

6 MR. PROSPECT: I am not authorized to speak for 7 them. I will venture an opinion based on what I have been 8 able to perceive over the past two days. It is my opinion 9 that they are very unhappy with the change of events and they 10 also intend -- when I say "they," some of them, the East End 11 town governments, intend to pursue legal recourse.

( Okay. I had one question, i

12 CHAIRMAN PALLADINO:

13 Mr. Prospect. The copy of the letter that you referred to, or 14 the copy that I have is not signed. Have you sent this signed 15 copy?

16 MR. PROSPECT: Mr. Chairman, I will apologize for 17 that. Everything has happened very quickly in the County of 18 Suffolk.

19 CHAIRMAN PALLADINO: Yes, I appreciate that.

20 MR. PROSPECT: We were aware --

21 CHAIRMAN PALLADINO: Have you submitted a signed 22 copy?

23 MR, PROSPECT- Well, let me just explain. I was 24 aware of the representations that the County Executive made to 25 this Commission, and even, I understand, he made a

\

l 50 1 representation to the President of the United States, and we 2 were in a rush over the weekend to communicate to our counsel S regarding the conviction of the Suffolk County Legislature.

4 So with the combination of getting signatures and the 5 combination of speaking to other legislators and getting the 6 legislators who we could not visit personally, getting their 7 authorization to use their name, we sent Mr. Brown a letter 8 that was authorized by now approximately eleven Suffolk County 9 legislators. Some county legislators we have still not been 10 able to reach. Don't forget, it has only been several days 11 since these changed circumstances. So you will forgive the

(

12 informality of the correspondence.

13 CHAIRMAN PALLADINO: Do you plan to give us a signed 14 copy?

v 15 MR. PROSPECT: Yes. We plan to communicate in some 16 future way in a more formal manner. Let me emphasize that we 17 plan to be in court, members of the Suffolk County Legislature 13 plan to be in court within 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br /> on this question.

19 CHAIRMAN PALLADINO: Are there other questions?

20 MR. PROSPECT: I guess we should say for the record 21 that we can state unequivocally that the Suffolk County 22 Legislators here today are definitely in support of everything 23 i just stated. Also, I know legislators who could not make it 24 today also support what is being done.

25 CHAIRMAN PALLADINO: It is still nice to get a

51 1 signed copy.

2 CLaughter3 3 MR. PROSPECT: I can appreciate that, but I'm sure 4 you car. appreciate the unique circumstances.

5 CHAIRMAN PALLADINO: I understand.

6 Jim, do you have questions?

7 COMMISSIONER ASSELSTINE: Can you give me a sense of 8 how realistic your estimate is of getting a judgment on the 9 legality of the Executive Order within two weeks?

10 MR. PROSPECT: Well, I am not an attorney. I am 11 told that cases like this are not usually delayed. I am sure i*

12 the County Executive would seek a prompt resolution to this 13 question. So when you have two parties that are not going to 14 resort to various machinations that seek delays, and if two 15 parties want a prompt resolution, I don't see anything that 16 will impinge upon that.

17 So I am told that in a case like this, perhaps we 18 can get a quick resolution.

19 COMMISSIONER ASSELSTINE: And I take it in the 20 interim you stand on the position that the County held prior 21 to last week on all issues?

22 MR. PROSPECT: That's correct. I am not speaking 23 for myself, necessarily. I am not speaking for Legislator 24 LaBua. I am speaking for the laws of Suffolk County, the laws 25 that are on the books, laws that have not been rescinded. You

52 1 know, the presiding officer of the Suffolk County Legislature 2 does not agree with the position that a majority of his 3 colleagues have taken. A few months ago what did he do? He 4 introduced a resolution that would rescind every piece of 5 legislation that has been adopted over the past few years.

6 That is the legal and appropriate way to go because what is 7 County policy has to be rescinded. His legislation has not 8 been adopted, but that is the appropriate mechanism.

9 What we have here, in our judgment, is a usurpation 10 of the legislative function. It is a violation of the 11 separation of powers. We are going to seek a redress of 12 grievance in court.

13 COMMISSIONER ASSELSTINE: How about the low power 14 security agreement that has been entered into? Do you have a 15 view on that, its legality and --

16 MR. PROSPECT: Well, I have a personal opinion on l

17 that. I cannot comment to the specific details, sir, but I am 18 very disturbed that if you look at County Resolution til, 19 peter Cohalan, the County Executive, was pledged and obligated 20 to carry out in all forums, county, federal, state forums, to 21 carry out the intent of that resolution, of resolutions he I

l 22 himself signed.

j 23 We are now learning that during the past few weeks, i

24 the County Executive was violating, in our judgment, 25 resolutions he himself signed. Before Mr. Brown was formally

5S 1 dismissed, he had no knowledge that the Deputy County 2 Executive, the Chief Deputy County Executive, John Gallagher, S was meeting privately with LILCO on that subject 4 So it is hard for me to comment on that, and if 5 Mr. Brown was sitting before you here today, I'm not sure how 6 much he could comment on it because that was a surprise to 7 him, also. If I am wrong in that, I'm sure I will be 8 corrected, but that's my understanding.

9 COMMISSIONER ASSELSTINE: So at least from your 10 standpoint at the present time, you cannot say whether this 11 resolves anything?

k 12 MR. PROSPECT: No, I cannot.

1S COMMISSIONER ASSELSTINE: I think that's all I had.

14 MR. PROSPECT: Because again, that was done without 15 our knowledge and without our counsel's knowledge.

16 COMMISSIONER BERNTHAL: I am still slightly 17 confused. I certainly can appreciate legal disarray. I hope 18 we are not very often in legal disarray around here. There is 19 usually a legal array before us, though. I have to say that 20 the opening part of your argument t o me to be rather 21 political, shall we say, and whether what Mr. Cohalan did is 22 impolitic or not is not really a question for the Commission.

2S MR. PROSPECT: You are implying what i did not 24 intend. If you implied that, I did not intend it.

25 COMMISSIONER BERNTHAL: tJell, there is a sense, at

- 54 1 least, that he had entered into agreements and has now not 2 kept those agreements. The question for us, however, is S whether what he has done is either illegal or the charter 4 equivalent of unconstitutional, I guess; a n'd it is not clear 5 to me what a resolution means.

6 MR. PROSPECT: It is legislation. In Congress they 7 call it a bill 8 COMMISSIONER BERNTHAL: Okay. That has the force of 9 law.

10 MR. PROSPECT: Correct. In our county government, 11 we call it legislation.

12 COMMISSIONER BERNTHAL: So you would argue, then, 18 whether or not he has acted impolitically, that he has acted 14 outside the charter and has also acted illegally. Is that the 15 essence of what you are saying?

16 MR. PROSPECT: We are claiming that his actions are 17 illegal and that they are unlawful; and this body, of course, 18 cannot decide that, just like it cannot decide the legality of 19 the LILCO evacuation plan. You instructed that the courts of 20 the State of New York decide that.

21 What we are asking you today is that you take the 22 same position. You can get involved in that, in whether the 23 County Executive acted appropriately or inappropriately, but 24 give the courts of the State of New York time to resolve this 25 conflict. That is all we are asking you to do.

55 1 If I can respond to your previous comment, I was 2 only responding to a question regarding that security 8 agreement, and it was brought to our attention today that that 4 security agreement was a complete surprise to our own special 5 counsel, Mr. Brown, who up until yesterday represented, or was 6 the agreed representative of the County Executive and the 7 County Legislature, and that he had no knowledge of that 8 agreement 9 So my characterization was based on a factual 10 occurrence.

11 COMMISSIONER BERNTHAL: One last question. Aside 12 from the question of 5 percent power and NEPA and whether the 18 plant can be presumed never to run or not, which is clearly an 14 important question for the Commission, there is also the 15 question of exercising the emergency plan.

16 Now, are you suggesting that the Commission and, of 17 course, FEMA should not at this time, then, involve itself in 18 what -- I'm not sure, but what I gather is, at least for 19 the moment, a lawful exercise of police power on the part of 20 Mr. Cohalan?

21 MR. PROSPECT: No, it is not a lawful exurcise.

l l 22 Mr. Cohalan is not only involving the Suffolk County Police; 23 his Executive Order is also directing the Suffolk County f

i I

l 24 Planning Department to involve itself in such exercises. We l

1 25 believe the whole Executive Order, for that reason, is

56 1 unlawful and illegal His Executive Order would require the 2 expenditure of new funds to carry out such tasks, and the S County Legislature, pursuant to the Charter --

and you are 4 going to get a copy of the Charter -- only the County 5 Legislature can authorize new appropriations for new 6 endeavors, and certainly we have not authorized any 7 appropriation for emergency preparedness.

8 CHAIRMAN PALLADINO: I have a clarifying 9 question. Aside from the question of an emergency plan 10 exercise, we have the question of whether this equipment is 11 vital or not and whether we should confirm our "as safe as" I

12 conclusion. Are you saying that even on those we should wait 18 two weeks?

14 MR. PROSPECT: I would say to you that because right 15 now we are -- let me say that we feel thoroughly unrepresented 16 before this body. We feel disarmed. There has been a sudden 17 blow to the County's position on Shoreham. We feel legally 18 disarmed. Many of the County legislators -- and, we believe, i 19 a majority of them, more than a majority -- feel that we don't 20 have effective legal counsel any more, but we are taking that 21 view to a court of law. And once the issue of the Executive 22 Or d t;r is resolved, the issue of effective legal representation 23 will also be resolved at the same time.

i l 24 CHAIRMAN PALLADINO: Then are you saying that, aside 25 from just waiting two weeks, we then have to receive whatever

57 1 position that the County concludes it has at that time, so we 2 are talking more like a month, perhaps.

3 MR. PROSPECT: I'm sorry. I don't understand the 4 question.

5 CHAIRMAN PALLADINO: You may resolve the question of 6 who represents the County in two weeks. That is assuming you 7 could do it. Then if you are going to make any presentation 8 to us, presumably time will be --

9 MR. PROSPECT: No, that's not it. We are not 10 deciding who represents the County. We are going to decide in 11 court the lawfulness, if you will, of the Executive Order.

12 The court action is to determine -- we are pursuing initiating 18 a legal action challenging the lawfulness of Executive Order 14 No. 1 That is going to be the thrust of our law suit 15 CHAIRMAN PALLADINO: But that won't bear, I don't 16 believe, on the questions we are trying to address here.

17 MR. PROSPECT: Yes ,- i t will because the Suffolk 18 County Government -- the County Executive acting in 19 conjunction with the County Legislature retained the services 20 of a law firm. That law firm, pursuant to an Executive Order, 21 is no longer servicing Suffolk County. We feel thoroughly 22 disarmed. So in the name of equity and justice, we would like 23 the issue of the Executive Order resolved.

24 But let me make it clear we are not going into court 25 regarding legal representation. We are going into court on

~

9 4

58 1 the sole matter of the lawfulness of the County Executive's 2 Executive Order and whether he was justified in issuing such

, 3 an order or was it an illegal and unlawful act. If it was an 4 illegal and unlawful act, I am sure the courts of the State 5 will render it null and void. That is the issue we are going 6 to litigate.

7 CHAIRMAN PALLADINO: Will that also include the G question of the attorney --

what is it -- Kirkpatrick and 9 Lockhart?

10 MR. PROSPECT: Well, let me say this to you. Once 11 the Executive Order is declared null and void, it is certainly k 12 the prerogative of the County Legislature if the County 18 Executive refuses, it is certainly the power of the County 14 Legislature to hire any law firm it chooses to be special 15 counsel, independent of the County Executive. According to 16 our Charter, it is the County Legislature that is the 17 policy-making branch of government, not the Executive Branch.

18 It is the classic executive / legislative branch of government 19 it is the Legislature that is the policy-making branch of 20 government 21 CHAIRMAN PALLADINO: Jim, did you want to follow up?

22 COMMISSIONER ASSELSTINE: Yes.

23 If I could just understand, you asked us to hold up 24 for a couple of weeks.

25 MR. PROSPECT: Yes.

59 1 COMMISSIONER ASSELSTINE: Assume that you get a 2 judgment from the court and the judgment is that you are 3 correct, that the Executive Order is invalid. You, the 4 Legislature, then put your special counsel back in place. At 5 that point, what do we have to do, from your standpoint?

6 MR. PROSPECT: I believe that we would not even 7 have to do any overt act to put our special counsel back in 8 place. Our special counsel will automatically resume his 9 professional responsibilities to represent Suffolk County, 10 COMMISSIONER ASSELSTINE: Okay.

11 MR. PROSPECT: Mr. Herb Brown has never represented k 12 the County Executive functioning in an independent capacity.

l 13 He has represented Suffolk County. Because of the quagmire 14 created by the Executive Order, Mr. Brown has had to remove 15 himself from representation. Once the Executive Order 16 is declared null and void, the law firm will resume its 17 professional responsibility to Suffolk County.

18 COMMISSIONER ASSELSTINE: I guess what I'm trying to 19 get at is I believe the County asked for this oral 20 argument. Are we free to go ahead, in your view, once that 21 issue is laid to rest? Do we have to have another oral 22 argument at that point, or are you prepared --

yes, I thought 23 that was the question you were after --

or are you prepared to 24 stand on the papers that have been submitted, the positions 25 that have been taken by the County up until this latest change

60 1 of events within the past few days. Or are you asking for 2 more than just waiting for that decision to be made and seeing 3 how the Court rutas on the question of the legality of the 4 Executive's actions?

5 MR. PROSPECT: We are asking you to temporarily 6 postpone any decision regarding any aspect of the low power 7 licensing questions, all aspects of it, until the question of 8 the legality of the Executive Order is rendered in Court, 9 until there is an official judicial determination, something 10 that we feel would be very prompt, 11 COMMISSIONER ASSELSTINE: But assuming that decision

( 12 comes out favorable to you, are we then free to go forward?

18 MR. PROSPECT: Then our legal representatives will 14 --

15 COMMISSIONER ASSELSTINE: Then you will tell us what 10 your view is.

17 MR. PROSPECT: Then our legal representatives will 18 come back and resume their professional responsibility of 19 representing the position and the resolutions of Suffolk 20 County Government.

21 COMMISSIONER ASSELSTINE: If everything comes out 22 your way, presumably that position would be the same position 23 that the County had taken up until the latter part of --

24 MR. PROSPECT: When you refer to the County, let 25 me go back to a comment I made earlier. Peter Cohalan and the

4 61 1 County Attorney constantly refer to themselves as the County.

2 He is a county executive. He is not the County. I never 3 heard of Ronald Reagan referring to himself as the United 4 States. He is President of the United States. The County 5 Executive is not the County. He is a county executive.

6 So it is our view that the position of Suffolk 7 County has not changed, that the resolutions promulgated in 8 1982, 1988 are still in effect. There has been no policy 9 change in the County of Suffolk. The view of one person may 10 have changed, but that's all 11 CHAIRMAN PALLADINO: But I think what Commissioner

( 12 Asselstine is trying to get at is suppose we wait the two la weeks, we hear the decision and it is favorable to you. Then 14 are we the next day free to go ahead and make our decision, in 7

15 your mind, or is there going to be time needed for your legal 16 counsel to make presentations or make some --

17 COMMISSIONER ASSELSTINE: We have already received 18 the papers from --

19 MR. PROSPECT: Well, I'm sure you would show due 20 concern for any time problem, any preparation problem 21 regarding the -- well, let me say this. Our l a-w firm cannot 22 effectively represent any party at this point, but they --

23 COMMISSIONER ASSELSTINE: That is how you are i 24 getting shortchanged. If you are getting shortchanged at all, 25 it is because you can't have counsel representing your

s

=

62 1 position today and continuing to advocate before the 2 Commission the positions of the County --

S MR. PROSPECT: But our law firm is not representing 4 any party at this point, but they have not walked away from 5 the case. It is my feeling that as soon as the legal question o

6 is involved regarding the Executive Order, our law firm will 7 be able to step right in and resume the case without any time S loss at all.

9 I have been joined by Legislator Foley, and he is 10 requesting to make some comments.

11 MR. FOLEY: May I speak just to that point briefly?

{ 12 CHAIRMAN ASSELSTINE: Let me go to Commissioner Zech 18 and let him ask some questions, and then I will come back to 14 you.

15 MR. FOLEY: I want to leave and let him continue.

16 COMMISSIONER ZECH: All right. Go ahead, 17 Mr. Chairman.

18 MR. FOLEY: My only comment on that, sir, would be 19 as foiIows. It i s mf understanding the papers have been submitted. The purpose of this convocation, let's call it, 20 21 here today is for the purpose of hearing oral arguments. We 22 are in a position where we have no one to truly represent the 23 County in the oral argument phase.

24 After the legal question has been resolved by the 25 courts -- and I would say the question of whether it is two

. 63 1 weeks or possibly longer is rather a moot question because 2 sometimes litigation may take a bit longer than one expects, 3 depending on the Stratagems of the parties, and we have been 4 subject to that in the County of Suffolk. But the point then 5 is it would seem to me that the orderly process of oral 6 argument then would be resumed, and I would certainly hope, 7 gentlemen, that your decision would not be made before there 8 was true and legal representation by the County to make oral 9 argument 10 CHAIRMAN PALLADINO: That is what I was getting 11 at. It is really a request for considerably longer than two

{ 12 weeks, in its practicality.

13 MR. PROSPECT: Well, if you are asking me, if the 14 Executive Order is declared null and void, when our law firm 15 resumes its prof ess i ona l regrnsbility to the County, should 16 they be given an opportunity to make oral argument --

17 CHAIRMAN PALLADINO: I wasn't asking that question.

18 I just wanted to have you reall=e and us reali=e that you are 19 requesting a period longer than two weeks because I think due 20 process would require that some consideration be given to --

21 MR. PROSPECT: Okay. But I'm sure we cannot put a 22 time on due process. I did say it was my belief that the 23 County Executive and the County Legislature, our main interest 24 is a prompt resolution. Two weeks, two and a half weeks.

25 three weeks. I don't think due process is measured by the

64 1 calendar. What we are asking for is this Commission to 2 recognize due process and give the Court an opportunity to S work its will 4 CHAIRMAN pALLADINO: Thank you.

5 Commissioner Zech?

6 COMMISSIONER ZECH: Thank you very much.

7 MR. pLAINE: Mr. Chairman, may I ask a question?

8 CHAIRMAN PALLADINO: This is our General Counsel 9 MR. pLAINE: Mr. prospect, Mr. Ashare, the County 10 lawyer, has maintained that he is statutority entitled to 11 express the position of the County. May not the NRC rely on

( 12 Mr. Ashare as representing the County position, 13 notwithstanding the problems that you may have internally on 14 these matters?

15 MR. PROSPECT: We don't have necessarily internally Mr. Ashare is an appointed official He is paid 16 problems.

not to make policy; he is paid to carry out policy. The 17 18 Suffolk County Legislature is the policy arm of County 19 government it is the Suffolk County Legislature, pursuant to 20 adopted legislation, it is the County Legislature that has 21 made policy on the issue of radiological emergency response 22 planning for Shoreham.

28 The County Attorney is not reflecting that policy.

24 The County Attorney now is reflecting the personal opinion of 25 one individual. He is no longer reflecting the policy, the

65

/

1 adopted legislative policy of the County Government. He is 2 reflecting a changed view of one man. He is reflecting the 3 personal view of one man. He cannot in good conscience speak 4 for the County Government, and that is going to be the essence 5 of the litigation brought my members of the Legislature.

6 MR. pLAINE: Okay. And that --

7 MR. PROSPECT: The County Executive, in all due 8 respect, his whim is not County policy. There is a 9 legislative process that must unfold. It is not government by 10 whim, it is government by law; it is government by standards.

11 Law and standards have been violated here.

12 MR. PLAINE: In connection with the law suit, are 13 you proposing that the County will seek to void the security 14 settlement agreement that has been made?

15 MR. PROSPECT: I can't speak to that issue at 16 this time.

17 MR. pLAINE: I would hope, Mr. Chairman, that we 18 would have an opportunity to ask Mr. Ashare what his views are 19 on some of this. He may have something --

20 COMMISSIONER BERNTHAL: Do you mean on the question 21 of whether the County would seek to void the settlements that 22 were made?

23 CHAIRMAN pALLADINO: I think we are getting into 24 debate and perhaps speculation. I don't want to deny 25 ourselves any information.

b 66 1 MR. PLAINE: I understand. If you don't think it's 2 necessary, that's okay.

3 COMMISSIONER BERNTHAL: Unfortunately, the question 4 of whether the plant ultimately operates is a speculative 5 business at best, and many of these speculations have some 6 significance. I would be inclined, if the General Counsel's 7 Office feels it is important for their considerations in 8 giving us legal advice, Mr. Chairman, that perhaps we should 9 hear that. It's up to you gentlemen.

10 CHAIRMAN PALLADINO: Any objection?

11 MR. PLAINE: I was talking and I didn't hear.

(. 12 COMMISSIONER ASSELSTINE: Fred says if you think the 13 question is important, you can ask it.

14 CHAIRMAN PALLADINO: Yes. Let's go ahead, then.

15 MR. PLAINE: If I could get Mr. Ashare.

16 CHAIRMAN PALLADINO: I'm talking to the Commission 17 and ask if anybody has objection to your asking the question 18 of Mr. Ashare, and the answer is I heard no objection.

19 MR. PLAINE: I will wait until he is here.

20 CHAIRMAN PALLADINO: Are we through with these 21 gentlemen?

22 Well, thank you very much.

23 MR. PROSPECT: Mr. Chairman, I would like to thank 24 you for your courtesy, and members of the Commission. We 25 appreciate it very much. Thank vou.

. 1 1

i

\

67 l 1 CHAIRMAN PALLADINO: Thank you.

2 Could we have Mr. Ashare rejoin us at the table 3 briefly?

4 Our general counsel has a question for you.

5 MR. ASHARE: Yes.

6 CHAIRMAN PALLADINO: Could you repeat it, Herzel?

7 MR. pLAINE: LJhat I had in mind was I take it i 8 understood you to say that you are statutority entitled to 9 express the position of the County.

10 MR. ASHARE: Correct.

11 MR. pLAINE: And that what you have told us here 12 today is what you regard as the position of the County.

13 MR. ASHARE: Correct. I think the issue of the 14 validity of the Executive Order and the question of whether or 15 not I represent the County in this has become confused.

16 Notwithstanding the issue of the legality of the Executive 17 Order, the County Executive rightfully has terminated, within 18 his powers, has terminated the contract of Kirkpatrick and 19 Lockhart and has so notified them. That is separate and apart 20 from the validity of the Executive Order.

21 As the County Attorney of the County of Suffolk, i 22 take over the legal representation pursuant to the County 23 Charter and the County Law of the State of New York, 24 regardless of the validity of the Executive Order. Is the 25 Order valid? I believe it is. Is the agreement valid, the

4 68 1 low power security settlement agreement? I believe it is.

2 While I'm up here, I might as well address myself to 3 one other issue raised by Mr. Prospect, and that was the five 4 eastern towns. My understanding is that only Riverhead and a 5 very small portion of the town of South Hampton are within the 6 ten mile zone. Those towns are not part of the Police District 7 of the County of Suffolk. The police Department of the County 8 of Suffolk operates within the five western towns.

9 However, we have a Sheriff's Office in the County of 10 Suffolk, and within the Sheriff's Office we have 150 deputy 11 sheriffs who are police officers, whose jurisdiction does run

( 12 throughout the county and who would be utilized as a police 13 force to implement an emergency response plan in the event 14 that the towns of South Hampton and the towns of Riverhead did v

15 not cooperate in emergency planning.

16 COMMISSIONER ASSELSTINE: One other question as 17 well Given your position on the exigent circumstances 18 finding and the "as safe as" finding, would you have any 19 objection to the Commission waiting a couple of weeks to see 20 how this other question sorts out?

21 MR. ASHARE: I'm really not prepared to address 22 that. As I said to you in my opening, we are content to rest 28 on the papers submitted by Mr. Brown with regard to exigent 24 circumstances and the "as safe as" contention. The only thing 25 that could be added would be oral argument I have read the

69 1 papers and I don't believe there is anything to be added to 2 our argument on those issues.

S We have said it in our papers, and if you gentlemen 4 would like to sit here on a nice afternoon and listen to it.

5 that's all well and good, but I don't think there is anything 6 to be added to it.

7 COMMISSIONER ASSELSTINE: But your argument is that 8 a low power license should not issue because of your objection 9 to those two portions of the Commission's previous decision.

10 MR. ASHARE: Correct 11 COMMISSIONER ASSELSTINE: Okay.

'( Herzel, did you have more?

12 CHAIRMAN PALLADINO:

13 MR. PLAINE: No, sir. Thank you very much.

14 CHAIRMAN PALLADINO: Thank you very much.

15 MR. PROSPECT: Mr Chairman, will you indulge me for 16 one minute, please? I just have a quick observation.

17 CHAIRMAN PALLADINO: All right.

18 MR. PROSPECT: You have your gavel ready.

19 CLaughter]

20 CHAIRMAN PALLADINO: I'm about to call a break.

21 Claughter3 22 MR. PROSPECT: Thank you.

23 in the letter of dismissal from the County Executive 24 to Mr. Brown of Kirkpatrick and Lockhart, the law firm was 25 dismissed because Mr. Brown and the law firm refused to

70 1 represent the County Executive as an independent agent, and 2 that is what the County Executive had made the request' will 3 you represent the new position of Suffolk County? The law 4 firm says there isn't any new position of Suffolk County, 5 nothing has changed, no legislation has been changed.

6 So Mr. Brown refused to represent the single County 7 Executive as an independent agent, and that is why he was 8 dismissed.

9 Just lastly, it should be noted the resolutions I 10 referred to in my presentation strictly prohibited the use of 11 any monies in the participation in any evacuation plan.

( 12 Thank you again.

13 COMMISSIONER ASSELSTINE: Could we have those for 14 the record, by the way?

15 MR. PROSPECT: I will see that you get them. I will 16 definitely see that you get them. Thanks again.

17 CHAIRMAN PALLADINO: Thank you.

18 Now I am going to suggest we take a ten-minute 19 break. We will probably be here a little longer than I had 20 thought.

21 ERe ess]

22 CHAIRMAN PALLADINO: Commissioner Asselstine will 23 be joining us shortly.

24 This is the continuation of the meeting that we just 25 recessed, and our next speakers will be the representatives of

4 71 1 the LILCO organization.

2 MR. ERWIN: Thank you, Chairman palladino, members 3 of the Commission. My name is Donald Erwin, representing Long 4 island Lighting Company. With me to my right is my partner, 5 Taylor Reveley, who has been working on the Shoreham case 6 v it;-t u a l l y since its inception in about 1970, immediately to 7 my ~left is John Leonard, who is LILCO's Vice president for 8 Nddlear, in case the Commission has any technical questions.

9 it is a pleasure to be here once again ten years 10 into this operating license proceeding on the sedend round of 11 inquiry into a phase S and 4 low power license, 12 Let me go quickly into the first question the 13 Commission raised, namely, that of reconsideration of CLI 14 85-1 15 It is LILCO's position, as we have indicated in our is written comments filed with the Commission, that the i

Commission should not reconsider CLI 85-1. petitions for

, 17 18 reconsideration are intended to highlight and focus matters i

19 which were either unavailable for review earlier or just were 20 somehow not treated at all properly. They are not intended as 21 a device simply to recant, reincant, repeat what has been 4

22 heard, reheard and decided before.

23 This is at least the third time papers and issues 24 have been briefed to this Commission concerning Phases S of 25 low power. If one counts the Appeal Board's briefing and

72 1 argument, it's the fourth tiie.

m This is the third oral 2 argument if one includes the Appeal Board, the second time if 3 one includes only the Commission.

4 L'hnt comes out of it is basically the'same stuff 5 over and over again.

6 Now, in the Commission's earlier review -- it was an 7 immediate effectiveness review, but it was not your typical 8 immediate effectiveness review. As you know better than I, 9 immediate effectiveness reviews aren't even normally granted 10 in low power situations. There was one here.

11 Before the Commission acted previously, as we 12 indicated, there were two rounds of written filings and a 13 round of oral argument. The Commission had before it a 14 massive record and considered it carefully.

15 Those factors are well to bear in mind. In fact, 16 the Appeal Board bore them in mind in ALAB-800 when it did pay 17 very close attention te what the Commission had said. In

< 18 ALAB-SOO, which ' ed is he need to be back here again in a i

19 circumstantial sense, the Appeal Board affirmed on the merits 20 everything that had been brought up before it on factual 21 issues. It also paid attention to the Corom i s s i on ' s 22 interpretation of two crucial clauses on Section 50.12(a),

23 namely, the exigent circumstances language and the "as safe l 24 as" language, and it quite properly said the Commission 25 probably knows what it is saying, seeing as how this is l

l .- . _

73 1 Commission-made law within this very case.

2 As to only one matter, namely, that of the treatment 3 of the backup AC power sources, did the Appeal Board have any 4 different view than that of the Licensing Board or the 5 Commission.

6 As to the various other issues, the due process 7 issues, the other substantive issues raised by the 8 Intervenors, the Appeal Board simply held that they were 9' either insubstantial or not meritorious. That is very 10 important as we go around in this third round.

11 The long and short of it is that there is nothing 12 new on the face of these papers and the Commission need not 13 reconsider its earlier decision.

14 The second question which is presented by the 15 Commission's order of oral argument is that of the treatment 16 of alternate AC power systems as vital equipment. As the 17 Commission knows, LILCO believes, and believes the record and 18 circumstances of this case will sustain that these sources do 19 not need to be treated as vital equipment for purposes of low 20 power.

21 There are really some background circumstances to be 22 borne in mind, and then there are two basic arguments as to 23 why they need not be treated. The first is that the 24 circumstances of the low power are significantly different 25 from full power, both in duration and in the inherent nature

)

1

74 1 of the risks incurred. You have minutes, if not hours or days 2 or weeks, in the case of all events except the LOCA, where we 3 have at least 55 minutes under the most conservative analysis, 4 and at least 30 days under anything else, versus seconds or 5 minutes at full power.

6 Secondly, the duration of phases S and 4 is expected 7 to be on the order of 60 days versus 30 years, tJe are talking 8 about a temporary situation.

9 Secondly, security at Shoreham for the full plant 10 has been approved by the Staff and by all of the parties in a 11 settlement agreement which has been honored throughout this i

12 proceeding. The existence of that settlement agreement 13 implies that there is the high degree of assurance for the 14 plant proper, the protected area and all the equipment in it, 15 and the vital areas within that protected area, which is 16 required by part 73 of the Commission's regulations.

17 That becomes important when one considers, for 18 instance, questions about potential diversionary actions 19 against EMDs or 20-megawatt equipment if those are not 20 considered to be vital I will come back to that in a minute.

21 A third background factor is that there has been a 22 long and productive history of cooperation between LILCO and 28 the Suffolk County police Department in security matters, 24 manifested in everything from nuclear security to crowd 25 control over the years. The only breakdown in that, quite

9 75 1 frankly, has been within the past year or year-and-a-half 2 when, after apparently developing some reservations about the 3 low power security arrangements, the Suffolk County 4 representatives simply did not choose to use their basically 5 plenary access to information from LILCO to obtain information 6 about the low power security arrangements, advise us of their 7 concerns, and seek our help in resolving them in a timely 8 fashion.

9 in terms of equities, I believe this makes seme 10 difference.

11 Fourth, it is useful to bear in mind that New York

[ 12 State is not a participant in the full power security is proceeding and is not a party to the full power security 14 agreement and has merely tagged along on the contentions which 15 were filed last summer by Suffolk County.

16 A final background consideration is that the backup 17 power sources, the 20-megawatt turbine and EMDs are not 18 simply naked and unprotected. The EMDs are in the protected 19 area. In November 1984, LILCO implemented certain additional 20 security enhancements for the EMDs, and in submission recently 21 . made, so-called Attachment 8 of Revision 9 of the security 22 agreement, LILCO committed to make further security 23 enhancements to both the EMDs and the 20-megawatt, which we 24 have committed as a matter of contract with Suffolk County to 25 implement even in the event the Commission declares the EMDs

76 1 and the 20-megawatts not to be vital equipment so long as we 2 rely on them as our emergency backup power scurce.

3 This is important for the Commission to understand 4 in the framework of its decision because, as we understand it, 5 Suffolk County agrees with us that protection for this 6 equipment is adequate under the terms of this agreement, and 7 we intend to abide by the agreement regardless of the O Commission's decision as to vitality.

9 But New York State is not a party to the agreement.

10 We intend to invite New York State to ratify it and join with 11 us. I'm not confident that it will happen, and if New York

( 12 State does not participate in it, then the question of the 13 need for an exemption -- or excuse me, the question of the 14 vitality of the equipment becomes important because if the 15 Commission holds the equipment is not vital, then there is 16 nothing standing in the way of issuance of a low power 17 license. if the C onm i s s i on holds that the equipment is vital 18 and has not adequately been compensated for, we will need by 19 some means to establish that we have adequately protected it.

20 Now, in terms of the need to protect alternate AC 21 power sources as vital equipment at low power, as the 22 Commission noted in questioning earlier, one needs a 4

03 combination of two extremely remote events, namely, a LOCA and 04 a total loss of off-site power, occurring within 55 minutes of 25 one another, plus the loss of the EMD dieseis and the loss of

77 1 the 20-megawatt turbine, all to occur.

2 The safeguards threat against the alternate AC power 9 sources by themselves does not cause a LOCA, and for the 4 purposes here, the LOCA itself has to be sabotage induced.

5 Even the Intervenors themselves in the proceeding now remanded 6 before the Kelley Board have conceded that the concurrent 7 independent occurrence of a LOCA and a security contingency is 8 so remote that they don't intend that to be covered by their 9 contentions.

10 Commission guidance in the form of Review Guideline 11 17 also suggests that security need not be analyzed 12 concurrently with either violent natural phenomena or random 13 -- namely, accidental -- failures of equipment.

14 So you have got to have a sabotage-induced LOCA, and 15 that means you have either got to get penetration of the 16 reactor building from a fully-approved security plan or you 17 have got to have an insider-caused LOCA. It is just simply a 18 sufficiently remote concatenation of possibilities within a 19 short time that we believe the Commission would be justified 20 in taking these factual background matters into account in 21 deciding that there just simply, given the background 22 circumstances, was no necessity to treat these equipment as 23 vital 24 Secondly, there is no existing generic regulatory 25 requirement for treatment of backup AC power sources as vital L

78 1 under the Commission's regulations now. Nothing specific in 2 the regulations requires it. Staff initially took the 3 position in the low power proceeding in their SSER, Supplement 4 5, that there was no technical reason to require this 5 equipment to be treated as vital.

6 During the course of the summer of 1984, the Staff 7 filed a proposed rulemaking which, among other things, would 8 have required treatment of the backup AC power sources as 9 vital equipment. Subsequently, the Staff changed its 10 position. in response to questioning by the Licensing Board, 11 the Staff conceded that the basic reason it changed its 12 position was to avoid jeopardizing consistency with its 13 proposed rulemaking.

14 Well, that's fine. There may be a proposal for a 15 rulemaking, but until the rulemaking is completed, it is not a 16 rule. And if there is not a rule requiring it, just simply in 17 the absence of other compelling circumstances there should be 18 no requirement for it, particularly given the fact that these 19 pieces of equipment are not naked and unprotected, LILCO 20 believes the Commission would be justified in not holding them 21 to be vital 22 The third question the Commission raised concerning 23 security is whether the Appeal Board should have affirmed the 24 Licensing Board's dismissal of the contentions on grounds of 25 basis and specificity. Let me suggest that basis and

4 79 1 specificity is a term which has got to be understood in a 2 common sense way. It should include contentions that are 3 essentially irrelevant, such as those involving beyond the 4 scope of a design basis threat. It should include other kinds 5 of contentions with inherent pleading defects.

6 in short, as I understand the Commission's question, 7 it is was there an independent, valid basis for the dismissal 8 of each of the contentions other than the question of whether 9 the equipment involved was vital or not? We believe that 10 there was such a basis. The basis is laid out in our 11 pleadings. When one parses contentions in oral argument, it

( 12 gets everybody lost. I'm not going to try and do it, but i 13 suggest to you that there is a basis, and the Appeal Board, 14 had it performed that test, would have come to the conclusion 15 that we did, namely, that there was such a basis.

16 As to what would be left of admitted contentions if 17 the Commission were to decide that there is no need to treat 18 equipment as vital, I must disagree with Mr. palomino in his 19 feeling that there would be something left. There would be 20 nothing left, simply because if you don't have to protect 21 equipment within this as vital -- the Commission's July 18, 22 1984 Order limited the scope of potential litigation 23 specifically to contentions caused by modification to the 24 plant for the low power configuration s if the EMOs and 20 25 megawatt are not vital, then an attack on them, a diversionary

80 1 attack, simply would not be dealt with by the security 2 plan. It would be like an attack on a tool shed or an attack 3 on anything else. What would be defended is the vital area 4 and the protected area. And to the extent the EMDs were in 5 the protected area, only coincidentally.

6 The long and short of this is there would be nothing 7 left of the contention.

S ) in my brief time remaining, let me take up quickly 9 the questions concerning whether the Commission should proceed 10 or how the Commission should proceed from here. LILCO 11 believes that it has satisfied the safety end of the I

12 requirements for issuance of a low power license and that the 13 equities of the situation commend issuance of such a license.

14 There are no serious safety questions outstanding.

15 Secondly, the security problem such as it has 16 existed has been remedied with Suffolk County, not with New 17 York State, but we believe that an independent remedy exists 18 in connection with the definition of vital equipment.

19 Third, Suffolk County has indicated through its 20 Executive that it intends to participate in emergency 21 planning. Whether that ultimately holds true or not is 22 obviously a matter of some conjecture. We believe that it 23 will, but the fact is that the very existence of this 24 controversy highlights the argument that LILCO has been making 25 for years now, that it simply does not pay to get into

81 i

1 speculation about the likelihood of part cipation of one layer 2 of government or another in emergency planning.

3 The Commission has recognized this both in its 4 interpretation of Section 50.47(d) as to the issuance of the 5 lower power license where it has refused to speculate, and 6 also in terms of its decisions as to whether or not to require 7 supplemental NEpA analysis. We firmly believe that in fact, 8 the Atomic Safety and Licensing Board's decision holding that 9 LILCO, in the absence of anybody else's cooperation, doesn't 10 have the legal authority to do what the Commission requires it 11 to do, that decision will be overturned in the fullness of k 12 time. However, the very existence of the controversy suggests 18 the wisdom of the Commission's course to date.

14 Now, a couple of quick aspects of emergency 15 planning. Mr palomino mentioned New York State's continued 16 unwillingness to cooperate in it. Well, the Licensing Board 17 held, in generally sustaining LILCO's emorgency plan in al!

18 respects except those having to do with its status, that our 19 50-mile planning apparatus was a pretty good one and that it 20 was satisfactory. We also, by the way, have the cooperation 21 of the State of Connecticut in addition to the County of 22 Nassau.

28 So it is not as though -- you don't have to have 24 Impoundments. What we did is we have set up arrangements to 25 keep food off the market by offering farmors to be made

82 1 whole. We would broadcast information on supplies. We would 2 have cooperation from the Department of Energy and so fort >

S It is all in our plan. It's in the decision, and the 4 Licensing Board held it is adequate.

5 So the mere fact that the State is not going to 6 participate is not a bar on the facts.

7 Secondly, I don't want to get into the details of 8 the comparison of Indian Point against Shoreham. Indian Point 9 may have roads running in all directions, but it also has 10 people running in all directions, too, and they are twice as 11 dense as they are at Shoreham. It also has got snow like you

(. 12 have never seen on Long Island. There are a number of other 13 features. The long and short of it is emergency planning is 14 probably easier on Long Island than it is at Indian point.

15 I think that should just about do it. If the 16 Commission has any questions, I would be happy to answer them.

17 CHAIRMAN PALLADINO: Thank you, Mr. Erwin. I have a 18 couple of questions here.

19 Let me first make sure I understand the effect of 20 the recent settlement agreement with the County. Is it to the 21 effect that LILCO agrees that the alternate system is vital 22 equipment, and if so, how can the Commission give 23 consideration to your papers which maintain that the alternate 24 system is not vital equipment?

25 MR. ERiJ I N LlLCO has agreed for purposes of that

83 1 agreement to treat the EMDs and the 20-megawatt turbine as 2 though it were vital equipment, to protect it as though it S were vital equipment in accordance with the provisions of 4 Section 73.55. That doesn't mean we agree that it is, in 5 fact, vital equipment or that it serves the functions of a 6 piece of vital equipment.

7 Having agreed to treat it as though it were vital 8 equipment in terms of physical protection, the specifics of 9 which are outlined in Attachment 3, we will do it as a matter 10 of contract with Suffolk County because we keep our 11 agreements.

12 CHAIRMAN PALLADINO: Now, if we turn around and say 13 it is vital equipment, does that introduce new hearing?

14 MR. ERWIN: If you say that it is vital equipment, 15 then that introduces -- yes. Then the Kelley Remand Board 16 would have to determine whether or not the measures which we 17 in Suffolk County have agreed are adequate are, i t, fact, 18 adequate.

19 My understanding, coincidentally, and Mr. perlis can 20 speak better to this than I, is that the Staff did not review 21 this attachment before it was formally submitted, but my 22 understanding from their preliminary review is that while they 23 have some coneon t s , they have no serious substantive 24 problems. I nave every expectation that the Staff agrees that 25 are measures are basically adequate, too.

4 84 1 CHAIRMAN PALLADINO: Let me turn to another 2 question. What is LILCO's stance with regard to the Suffolk 3 County request for delay, or at least Mr. prospect's request?

4 MR. ERWIN: LILCO would not favor such a delay for a 5 number of reasons. One is, as I mentioned, we are in the 6 tenth year of this proceeding. We are within several months 7 of literally being on the cusp of operation. There are no 8 serious safety problems with the plant. Indeed, just the

') opposite. We need to operate. We are being prejudiced by 10 delay, both monetarily and in terms of the readiness and 11 ability of plant staff to continue its operation.

12 I would have, frankly, a little more -- I would be a 18 little more sanguine about Mr. prospect's request if I had any 14 basis in the history of this proceeding to think anything 15 other than that once something turns into a law suit in 16 Suffolk County, it stays there for years, and despite the 17 best efforts and best intentions of everybody to resolve an 13 issue as they best see it, my guess is that once one has gono 19 to the New York Supreme Court and then to the Appellate 20 Division and then to the Court of Appeals and someone has 21 s o*J g h t to appeal it to the United States Supreme Court, you 22 see a process that is at least two to three years long, and 23 probably longer.

24 CHAlRMAN PALLADINO: Could you help me clear up a 25 couple other points? I still am not clear what the next steps

85 1 regarding emergency planning at Shoreham involve.

2 MR. ERWIN: The next steps, in our view, involve the 1

3 following. First of all, examining closely the Licensing 4 Board's decision as to those matters within LILCO's power to 5 remedy which need to be remedied, and then are probably half a 6 dozen of them. Our judgment is that all of them, except those 7 which deal with status --

namely, LILCO's existence as a 8 private entity rather than a government, dealing with legal 9 authority, conflict of interest and the absence of a state 10 plan -- can be easily remedied by LILCO and will be, in fact, 11 we have people working on them.

(- 12 Operationally, our next step is to meet with Suffolk 13 County, FEMA and members of the NRC and start planning an 14 exercise. We have received informal coneunications from FEMA 15 within the last several days which indicate that they are 16 anxious and ready to cooperate in the planning for an 17 exercise.

18 Once we have met with Suffolk County and coordinated 19 logistically how they would fit into the plan, we will submit 20 --

I don't want to call it a revision or amendment because 1 21 don't think it will even involve that it will be simply like 22 laying a template over an existing plot 23 Bear in mind that 90 percent of emergency planning 1

24 deals with underlying facts and circumstances, namely, roadway 25 capacities, population, meteorology and so forth, that are

86 1 unaffected by organization. The organization is basically 2 fungible, we believe, in 90 percent of its aspects, and we 8 feel we can get going on that pretty quickly.

4 CHAIRMAN PALLADINO: You maintain you wouldn't have 5 to resubmit or you wouldn't have to s abmi t a revised emergency 6 plan?

7 MR. ERWIN: We will submit some kinds of revisions.

8 i guess all I am saying, Chairman palladino, is I don't want 9 to call them a revision or an amendment or something else that 10 somebody might think of as a term of art because, frankly, we 11 haven't had the subsequent meetings and interplay with the 12 Suffolk County experts yet. I'm quite confident that it is 13 manageable and that it will not involve changing the vast bulk 14 of the -- well, let me say it the other way. The vast bulk of 15 it will be unchanged.

16 CHAIRMAN PALLADINO: But until that is done, 17 whatever form it takes, you wouldn't be really in a position 18 to exercise a plan, or would you? What I am getting at is 19 there are the police power questions, and until those are 20 settled in some form, it is not clear to me what the value of 21 the exercise would be. But once that is done, I can see great 22 value in it.

23 MR. ERWIN: My practical view is that as long as a 24 validly elected constitutional officer of Suffolk County is 25 acting within the apparent scope of his mandate and is willing

.= . _ _ ._ _

87 1 to cooperate with us, we are going to cooperate with him and 2 plan as best we can and show the world that we have as good a 3 plan as we know we have.

4 We cannot actually hold the plan until the 5 arrangements -- or hold the exercise until the arrangements 6 are in place. FEMA has, as i recall, either a 90 or 120-day 4 7 planning sort of prototype schedule. I see no reason why we 8 shouldn't be able to meet that kind of schedule as a path to q 9 an exercise.

i 10 CHAIRMAN pHLLADINO: Let me ask one other question.

11 When will the on-site AC power system questions be resolved?

12 I am thinking of the TDI qualification and of the eventual 13 replacement with, I think it is, diesels.

14 MR. ERWIN: As to the TDis, I can't peer inside 15 Judge Brenner's head, but my understanding is that a decision 16 is expected either this month or next 17 COMMISSIONER ASSELSTINE: The hearings are over, 18 right?

19 MR. ERWIN: Yes, sir. The hearings are over. All 20 the filings have been submitted to the Board. Apparently a 21 result is expected in July. As to the colts, Mr. Leonard can 22 speak in more detail than 1, but basically they are on site, 23 have been largely installed. However, horsking them up is not 24 like turning on a light switch or unplugging a bulb. One has

, 25 to rip out a lot of connections and reroute a lot of power and l

t 88 1 instrumentation, and it is how many months?

2 The long and short of it is we are planning on 3 waiting until after the first refueling if the TDis or 4 20-megawatt and EMDs -- if the TDis are qualified, simply 5 because it is a several week or several month changeover.

6 MR. ROLFE: Mr. Chairman, when I first came to 7 LILCO, LILCO had considered throwing away the TDis and putting 8 in the colts immediately. After my review of the Owners 9 Group, there are 16 other or 13 other utilities involved with 10 TDis, four of them exactly similar to us. It seems to me if 11 you really believe in reactor safety, a six emergency diesel i

12 power plant is considerably safer than a three emergency 13 diesel power plant.

14 They have already spent a lot of money refurbishing 15 these TDis. I convinced the Chairman of the Board that if 16 these things litigate properly, and they should, they are 17 sitting there now and standby tested. If we lost power, the 18 first thing to come on would be the non-legally recognized TDI 19 diesels, and they carry the plant load. We would only go to 20 the emergency power supplies, the EMD diesels, 20-megawatt gas 21 turbine if that didn't happen.

22 Based on that, I completed the engineering for tying 23 in the colts as if we were going to lose the TDis, but then i 24 also restarted engineering at considerable expense to LILCO to 25 make a parallel tie-in of the colt diesel engines at the first

39 1 refueling outage.

2 It is my great hope that we will end up with six 3 good diesel engines as emergency power supplies for that 4 plant. In view of the blackout rulemaking that's in question 5 now, I think that's very important.

6 CHAIRMAN PALLADINO: Okay.

7 Commissioner Roberts, do you have a question?

8 COMMISSIONER ROBERTS: Yes, I have got a question.

9 Suppose you work out everything with Suffolk County, and let's 10 forget the squabble between the legislators and the Chief 11 Executive. I don't want to misquote Mr. palomino, but I

( 12 thought he said earlier that Governor Cuomo's position had 13 always been that he would never force a plan on a county.

14 Do you see any possibility that the Governor, when 15 he recognizes the fact that Suffolk County is going to 16 participate, would allow New York State to participate, or is 17 that just too speculative?

18 MR. ERWIN: That is too speculative for me. Let us 19 say that LlLCO hopes very much that Governor Cuomo will 20 continue to adhere to his initial view that he will neither 21 force planning nor try to thwart planning on a local entity 22 that wants to engage in it 23 CHAIRMAN PALLADINO: Well, it appears that he has 24 departed from that at the present time.

25 MR. ERWIN: Well, a lot of things appear in

90 f

1 politics. There is always tomorrow.

2 [ Laughter]

3 COMMISSIONER ASSELSTINE: I just have one question.

4 When we were discussing whether there is anything left of the 5 physical security contentions if the Commission decides that 6 the backup AC power systems are not vital equipment, it seemed 7 to be saying.that there was nothing left of the physical 8 security contentions, and the reason was that these wouldn't 9 be vital equipment and therefore they wouldn't affect the 10 overall security planning of the site, that no one would go 11 run to those, 12 How does that square or is it consistent with your 13 conn i tmen t to the County that you will treat them as vital 14 equipment? When you add that into the pot, isn't there 15 something left of the physical security contentions?

16 MR. ERWIN: I don't believe so. I don't want to get 17 into too much detail, but the basic concept of the treatment 18 of the backup AC power systems has been to arrange modular 19 additions to the physical security plan. There is a 20 stand-alone physical security organization and a physical set 21 of protective measures for the EMDs and another one for the 22 20-megawatt exactly to anticipate that problem.

23 COMMISSIONER ASSELSTINE: la that outlined in the 24 filings you have submitted to us? ,

25 MR ERWIN: it is not in the unclassified filings 4

-u---_ . , , . , , , - - . - - - - - - .. - - , , - - ~

- - , , . - -.n---- - - ---

91 1 it is in Attachment 3.

2 MR. ROLFE: I would like to amplify. In non-legal 3 terminology, what occurred in the actual contentions of the 4 physical security, that security and police personnel from 5 Suffolk County at a high level met with myself -- and I was 6 personally involved in this -- and my staff. We went over 7 item by item what concerns were and what we would do about 8 them, and without getting into safeguards information, even to 9 the point where we are going to review with the Suffolk Police 10 Department our post orders to the guards themselves. I mean 11 that far is the detail. All those concerns -- and that's why 12 my personal signature is on that agreement --

have been 13 resolved.

14 COMMISSIONER ZECH: Hs I understand it, you are 15 telling us that as far as 5 percent power is concerned, you 10 feel that you are ready now, is that right?

17 MR. ERWIN: Yes, sir. The only thing we need to do 10 is to fulfill our commitment to ?uffolk County to install the 19 additional low power security measures. Correct me if I'm 20 wrong, John. I believe you are ready to go?

21 MR. ROLFE l'm ready to go. Much of the 22 engineering has already been issued and we will put pecple 23 around the clock onto it.

24 COMMISSIONER ZECH: But the County has several other 25 questions, as I understand their presentation here today, that

92 1 they are still looking into, and the State, of course, is 2 opposing across the board 5 percent When we go to full 3 power, we are looking at the emergency planning, of course, 4 and we are seeing the various viewpoints on that. Of course, 5 you would have to run an exercise and be satisfied as well as 6 the County. But the State, again, opposes that, so as far as 7 full power is concerned, the emergency planning question is to 8 be resolved. But if you set that aside and just look at 5 9 percent power, I think at least it clarifies the issues, and to you see the difference.

11 Of course, the County has got a separate problem

( 12 with their County Executive and with their County Legislature, 13 which is another thing to be considered, but you are telling 14 us that as far as you are concerned, for 5 percent you are 15 ready now. The County, speaking on behalf -- not the 16 Legislature, but the County Executive, says that he has got 17 several problems with 5 percent.

1G Other than that, of course -- and the State is 19 opposing on the premise that emergency evacuation for full 20 power, which is not necessary for 5 percent power, would still 21 be an impediment to 5 percent 22 That's pretty much how I have summarized it Would 23 you agree with that?

24 MR. ERWlH: Yes, I would, but when you say the County has several problems remaining, as I understand it, it 25

93 1 is the constellation of problems defined by the interpretation 2 of "as safe as" and exigent circumstances, in other words, 3 those surrounding the garden variety safety issues that have 4 been before the Commission.

5 COMMISSIONER ZECH: Yes, but you heard the County 6 say those are problems for them, but you are telling me as far 7 as you are concerned, they are not problems for you.

8 MR. ERWIN: That's correct We believe we are 9 correct on them.

10 COMMISSIONER BERNTHAL: I do have one question which 11 occurs to me, and general counsel has a shepherd's crook. He

( 12 may have to use it here to stop me if I am asking a question 13 that I shouldn't We are in a situation, apparently, where 14 the State of New York will not cooperate, and the County now 15 has asked the Commission for a two-week delay, which I think 16 by common assent could well go longer than two weeks.

17 What position would LILCO take, legal or otherwise, 18 should the Commission defer to such a request for a delay of 19 two weeks that could well extend to three and four weeks in 20 this matter because of the inability of the County 21 Legislature, at least, to be properly represented at this 22 point? If I am permitted to ask that question, I will ask it.

23 MR. ERWIN: Well, first of all, our position on our 24 entitlement to a low power license, phase 3 and 4, is not 25 dependent on the position of Suffolk County as expressed by

94 i

1 the County Attorney at this point. We believe that we are 2 entitled to it notwithstanding the previous blanket opposition 3 that existed. That is important to bear in mind.

4 Secondly, the difficulty with deferring action is, 5 as I said a little while ago, that it is very difficult to 6 know in a principled fashion where to draw the line. What you 7 have here is eight members of the 18-member Suffolk County 8 Legislature appearing as individuals without ever having met 9 formally to take any kind of action. I don't know how many of 10 them in fact agree with Mr. prospect. He represents that a 11 majority do. But the fact is they haven't acted officially 12 yet.

13 On the other hand, the County Executive has acted 14 officially. My guess is that before the political problems in 15 Suffolk County sort themselves out, you are going to see not 16 only a two to three-week period but several more changes in 17 composition. I don't know anything specific, but I have read 18 the newspapers in Suffolk County for several years now. The 19 difficulty you are going to find is that you are going to find 20 it impossible to draw the line, and the only reasonable 21 principle to observe is that which you have been observing all 22 along, that of refusing to speculate.

23 COMMISSIONER BERNTHAL: But you haven't answered my 24 question, though. Maybe you chose not to answer it.

25 MR. REVELEY: Let me try, Commissioner. I am the

95 1 dinosaur at the table, having been involved in Shoreham 2 throughout most of my life.

3 COMMISSIONER BERNTHAL: You don't look that old.

4 MR. REVELEY: I'm getting there.

5 [ Laughter 3 6 There have been four governors on Shoreham. Through 7 the first three, there was support. indeed, Governor Carey 8 was in court litigating against Suffolk County on emergency 9 planning, the State's view then being during the waning months 10 of Governor Carey's administration that emergency planning for 11 Shoreham was feasible, that a plan was in place that was good, i

\ 12 and that it should be approved by the State.

13 The moral of that tale is that even governors change 14 their minds, even governors have different views, as Mr. Erwin 15 pointed out. politics are politics, and one doesn't know from 16 day to day exactly what the result will be. But if you just 17 took a body count of New York governors, it is at the moment 3 18 to 1 in favor of Shoreham.

19 CLaughter]

20 Now let's talk about county executives for a 21 moment. I remember during my very first month involved with 22 Shoreyham sitting in an equatorially hot and typically hot Long 23 istand gymnasium listening to the then County Executive making 24 a sti,r.tement strongly in favor of Shoreham. The present County 25 Executive, when he initially was in office, signed an

96 1 emergency planning agreement with LILCO under which LILCO paid 2 the County a good bit of money to assist its emergency 3 planning, and which agreement remained in effect for a couple 4 of years.

5 That county executive has now once again decided 6 that emergency planning for Shoreham may be feasible, 7 depending upon the result of an exercise, an eminently common 8 sense result, one would think, if you are concerned about 9 emeroency planning at Shoreham, whether it is or isn't to feasible, why not test it and see?

11 That is what the County Executive wishes to do. Our

,i 12 concern is, as we do go into the tenth year of this operating 18 license proceeding, after 260 days of hearings, after 50,000

l. 14 pages of transcript, after tens and tens of millions of 15 dollars of licensing cost, far more than enough to endow a 16 small college splendidly forever, we are concerned that if you 17 wait for two weeks or three weeks or four weeks, you may 18 not still reach a better moment in time to make your decision, 19 which we think you should have made some timo ago in any 20 event, as we tell you from time to time.

21 There is no certainty that waiting will improve the 22 situation. We are confident that the people who oppose 23 Shoreham oppose it to the very core of their beings, will 24 always want more time, will always ask for more time. We 25 think we were entitled to this low power license some time ago

._ _ _ , . _. _ __ .-__ _ . _ _ _ _-.__ ~ _ _ _ _ _ -- __

I 97 l 1 under the law, and entitled as a matter of public policy. We I

l 2 want it now. We need it now. We are asking for it now. We 3 do not believe you will materially improve your own political

! 4 problems with difficult decisions by waiting to give it to us.

1 5 Thus, Commissioner, we do not and would not agree to l

6 acquiesce in a delay because we don't think anything in our 7 experience suggests it would improve the situation.

8 COMMISSIONER BERNTHAL: I think that the last 9 sentence was as close as I'm going to get to an answer, but i 10 appreciate the comment.

! 11 COMMISSIONER ASSELSTINE: it seemed pretty clear to 12 me.

i l

13 CLaughter3 i

l 14 CHAIRMAN PALLADINO: Let me ask one other question I

l 15 I gather the emergency plan that you have now would have to be 16 revi. sed somewhat to accommodate the arrangements with the l 17 Suffolk County Executive. Is that something that has to be 18 litigated once it is revised? I really don't know. I am I 19 asking any knowledgeable lawyer hore.

l

! 20 MR. ERWIN: My top of the head reaction is that, 21 like many things, it is beauty in the eye of the beholder To 22 be serious about it, it's a question of the materiality of the 23 changes. We do not believe that the changos will be t

l 24 substantively material, it is possible that thore are 25 participants in the proceeding who will believe that they

4 s

98 1 are. That question will go to the Licensing Board, and we 2 have been there before.

S I am hoping that they won't be and I am hoping that 4 demonstrably they will not be.

5 CHAIRMAN PALLADINO: Any other questions?

6 CNo response]

7 CHAIRMAN pALLADINO: Thank you very much, gentlemen.

S Now we will ask the Staff to join us at the t a b l e ,'

9 the Staff representatives.

10 MR. pERLIS: Good afternoon, Chairman palladino and 11 Commissioners. My name is Robert partis. To my left is Rob i

12 Caruso. He is the Shoreham project manager of the NRC. And to 13 my right is Charles Gaskin. He is the safeguards reviewer 14 from NMSG.

15 First I would like to address the first question 16 posed by the Commission, which deals with reconsideration of 17 CLI 85-1. As the Commission set out in CLI G4-8, the granted 18 exemption from GDC-17 for Shoreham is to be governed by the 19 following criteria. Low power operation under the terms of 20 the proposed exemption must be shown to be as safe as 21 operation would have been with a quallfled on-site AC power 22 source, and there must be exigent circumstances supporting 23 grant of the exemption. ,

24 Both of those criteria were the focus of hearings 25 before the Miller Board. We think both were correctly decided

99 1 by the Miller Board.

2 First I would like to discuss the "as safe as" 3 criterion. GDC-17 contains various core cooling requirements 4 to satisfy GDC-17. The on-site AC power system must possess 5 sufficient capacity and capability to satisfy these core 6 coo, ling requirements in the event of a loss of off-site power, 7 and further, must have sufficient independence, redundancy and 8 testability to satisfy the single-fallure criterion.

9 The Board applied the Chapter 15 design basis 10 events to Shoreham's alternate power system and determined 11 that during low power operation, power would be needed for k 12 core cooling only in one event, and that was a concurrent loss 13 of off-site power and loss of coolant accident, and in that 14 case would not be needed for, conservatively, at least 55 15 minutes. For all other events, restoration of AC power is not 16 a safety concern for at least 30 days.

17 The Board further found reasonable assurance that 1G the alternate system could restore power well within 55 19 minutes, and therefore found that the "as safe as" criterion 20 was satisfied.

21 I don't think it can be expressed enough that 22 none of these safety findings have ever been factually 23 controverted by either the County or the State in this 24 proceeding.

25 I think it is also worth noting that the same

100 1 methodology that was applied to the alternate system is that 2 which is ap.nlied to systems to determine compliance with 3 GDC-17. Thus, I think the record fairly supports a finding 4 that low power operation would be as safe under the alternate 5 system proposed for use at Shoreham as it would be with the 6 system in ccepliance with GDC-17.

7 As for the exigent circumstances criterion, the 8 Commission in CLI S4-8 set out various equities that have to 9 be considered in determining whether this criterion was 10 satisfied, in considering those equities, a number of them 11 favor grant of the exemption, and in particular, the Staff has I relied on the following.

i 12 la The exemption is for a Ilmited time duration. LILCO 14 made a good faith effort over a number of years to comply with 15 GDC-17, and that effort is in fact continuing. The facility 16 is now ready for full power operation, and again -- we have to 17 stress this -- the utter lack of any safety significance 18 associated with the exemption.

19 On the other side, the Staff does not believe any of 20 the equities work against grant of the requested exemption.

21 The Staff therefore believes the exigent circumstances 22 criterion as set forth by the Commission in CLI 84-8 has been 23 satisfied.

24 Next I would like to address the issue of 25 vitali=ation. The record shows that the alternate power

4 101 1 sources will not be needed to protect public health and safety 2 during low power operation except in the event of a 3 LOOP /LOCA. However, the record also shows that those 4 alternate sources may be necessary if a LOOP /LOCA were to 5 occur at low power.

6 Our interpretation of Section 73.2(i), which defines 7 vital equipment, is that under the circumstances presented 8 here, at least a portion of the alternate system should be 9 treated as vital equipment, and that --

10 CHAIRMAN PALLADINO: Now, that is the major question 11 I had for the Staff.

I 12 MR. PERLIS: As we read 73.2(i), equipment that is 13 needed for mitigation of various events is to be treated as 14 vital equipment in the event of a LOOP /LOCA occurring at low 15 power, and again, it is only for that event --

16 CHAIRMAN PALLADINO: Is your position that that is 17 so for any combination of circumstances?

13 MR, pERLIS: I can't say for any combination of 19 circumstances, but for that one event, for a LOOP /LOCA at 20 Shoreham at low power, you will need to have AC power 21 restored, conservatively, within 55 minutes.

22 Now, under that circumstance, the Staff believes a 23 portion of the alternate power system should be treated as 24 vital equipment.

25 COMMISSIONER ASSELSTINE: Why just a portion? Why

102 1 not both parts?

2 MR. PERLIS: Well, in our view, protection of more 3 than one portion would add nothing to protection of the public 4 health and safety, and that is because when you talk about 5 protecting both sources, you are now talking about a 6 concurrent sabotage event with a single failure. We don't l

7 assume that a sabotage event will be able to take place in 8 three separate areas, which would involve the LOCA, 9 destruction of one power source and destruction of the second 10 power source.

11 The Staff reviewed guidelines. They just don't 12 require that you consider a failure of equipment as well as a 13 sabotage event. I want to make clear we are not taking credit 14 for anything that's not protected in the sense of from a 15 security attack, but we don't believe that a security attack

16 could damage two protected sources or two protected pieces of 17 equipment, one necessary for protection against a LOCA and the I

j 18 other being a backup power source.

l 19 CHAIRMAN PALLADINO: Let me pursue my question just 20 a little bit more. You say this alternate equipment is needed 21 in the event of a LOCA, but it is available in the event of a 22 LOCA unless you are postulating also that somebody at 23 precisely that time performs sabotage at the same time that i

24 there is loss of off-site power. But for the LOCA, you will 25 have that equipment and you also have off-site power, but you l.

103 1 may lose the off-site power but you still have this equipment 2 unless you want to postulate also sabotage at the same time.

3 That is what I was having difficulty understanding.

4 MR. PERLIS: The Staff position on security matters 5 is that if a piece of equipment is not protected, if it is not 6 treated as vital, then we cannot take credit for it in the 7 event of a possible security event if a security event were 8 to cause a LOCA, then the Staff cannot take credit for 9 off-site power being brought to the site, nor could we take 10 credit without any vitalization for either of the on-site 11 power systems working.

t 12 So therefore, unless you could give an absolute 13 guarantee that a security event could not cause a LOCA, the 14 public health and safety would be adversely affected by not 15 protecting at least one of these sources during low power 16 operation.

17 CHAIRMAN PALLADINO: Well, I don't find that 18 consistent with some of the other things the Staff has 19 recommended in the past where we have gone with low 20 probability events being exempted, and this doesn't seem 21 consistent with many of those others.

22 MR. pERLIS: All I can say about consistency is that 23 -- I know it has been suggested a number of times that our 24 treatment of LILCO here is inconsistent with the Staff 25 treatment of other utilities, and I want to make clear that

104 1 the Staff position on vitalizing alternate power sources has 2 been consistently applied to near-term operating licenses for 3 at least four years now. It is our position that alternate 4 power sources should be protected.

5 COMMISSIONER BERNTHAL: Well, the underlying 6 presumption, is it not, Joe, is that they don't assume what 7 amounts to a common mode sabotage event. In other words, you 8 presume that you can't sabotage both the reactor systems 9 themselves and also the protected emergency power --

10 MR. PERLIS: That is correct, but that assumption --

11 CHAIRMAN PALLADINO: Do you have a protected system

( 12 for guarding against the LOCA based on sabotage?

13 MR. pERLIS: That's correct. But you do not have a 14 system guarding against the protection of anything else if the 15 power sources are not treated as vital So you are not, then, 16 talking about a double-pronged sabotage success, you are only 17 talking about one success.

18 CHAIRMAN PALLADINO: No, you have to have loss of 19 off-site power. You must have LOCA, and it can come from 20 sabotage or it can come from anywhere else, and then you have 21 got to have saboteurs who are very knowledgeable about what is 22 going on immediately coming in there and wiping out your 28 off-site -- I'm sorry, your alternate AC power.

24 MR. PERLIS: The Staff position, though, is that if 25 you don't have vital protection for a power source in the

105 1 event of a sabotage attack, we assume that that power source 2 will not be available if called upon because it's not being S protected.

4 COMMISSIONER ASSELSTINE: If it is protected, you 5 assume that they will knock out both.

6 MR. PERLIS: That's right 7 COMMISSIONER ASSELSTINE: But if it's not protected, 8 then you don't take credit for it.

9 MR. PERLIS: In the same sense, because off-site 10 power is not being protected, we assume in a sabotage event 11 that off-site power will be unavailable.

12 COMMISSIONER ASSELSTINE: That's right.

13 CHAIRMAN PALLAOlNO: Now wait a minute. I lost you 14 when you were talking about both events.

15 COMMISSIONER ASSELSTINE: Okay. You have got three 16 things. You have got your off-site power, you have got your 17 LOCA, you have got your backup power supply. You assume 18 off-site power is not going to be available because it's not l

19 protected.

20 CHAIRMAN PALLADINO: Under what circumstances?

21 COMMISSIONER ASSELSTINE: In a sabotage event 22 MR. PERLIS: It is a given that off-site power will 23 not be available, for whatever reason.

24 COMMISSIONER ASSELSTINE: So then if you have a 25 sabotage event that causes the LOCA, the question then is can

106 1 the sabotage event also knock out the backup power supply; 2 right?

S MR. PERLIS: That's correct.

4 CHAIRMAN PALLADINO: But you are postulating this 5 sabotaged LOCA.

e, 6 COMMISSIONER ASSELSTINE: That's right.

7 CHAIRMAN PALLADINO: We haven't had a plan for i t . f=

8 MR. PERLIS: We don't have a plan that does provide 9 a high assurance that it won't take place, but in our view, we 10 can't absolutely guarantee that it won't take place.

11 COMMISSIONER ZECH: That's why you say if it's a I

12 power supply it has got to be vital 1S COMMISSIONER BERNTHAL: They don't take credit for 14 unprotected systems. It's as simple as that. If they have a 15 protected power supply and a protected possible LOCA, then 16 they assume it's a non-common mode sabotage event that is 17 required and therefore you are multiplying low probabilities.

• 4 18 MR. PERLIS: Right. If I could sum it up --

19 CHAIRMAN PALLADINO: It's not that these are common 20 mode, because I don't think you have the same kind of sabotage 21 effort going after alternate power source as you would going 22 after causing a LOCA, so I think they are independent.4 lM3 COMMISSIONER BERNTHAL: Well, they assume that it's 24 easy if it's not protected, though. That's the gaint 25 COMMISSIONER ASSELSTINE: And we get into things we

l l

107 1 cannot talk about here.

2 MR. PERLIS: Just as a conservatism, we do believe 8 that two separate areas should be protected, both of which 4 would have to be damaged by sabotage to adversely the public 5 health and safety. That's the position we have taken in this 6 case.

7 CHAIRMAN PALLADINO: Let me ask you two more 8 questions that are related. Do'the Commission's current 9 security regulations require that on-site AC oower system be 10 treated as vital equipment?

11 MR. pERLIS: The Staff's interpretation of those

~

12 regulations is, yes, they do require that on-site power 13 systems be treated as vital equipment. However, in fairness, 14 the regulation do not explicitly identify pieces of equipmerit 15 that need to be protected. So you won't find a regulation 16 that specifically states " protect on-site AC power sources.*

17 COMMISSIONER ASSELSTINE: But that has been your 18 consistent interpretation for what?

19 MR. pERLIS: For at least the last four years.

20 CHAIRMAN PALLADINO: What about low power? You also 21 apply it at low power?

22 MR. PERLIS: It has been applied at low power, yes.

23 CHAIRMAN PALLADINO: Do the regulations specifically 24 say that?

25 MR. PERLIS: The regulations do not differentiate

108 1 between low power and full power in this event because there 2 is a Chapter 15 event that requires on-site AC power, in this 3 case the LOOP /LOCA event We feel it would be prudent to 4 require vitalization of one of the sources.

5 CHAIRMAN PALLADINO: Let me ask one other question.

6 Do the Commission's proposed rules on the subject --

7 are they clear that they apply to low power, the proposed 8 rules? I had difficulty trying to draw that out, but some of 9 the information we got seems to imply that other people 10 clearly find such a conclusion.

11 MR. pERLIS: I don't know. I don't believe --

1 I haven't looked at it in a long time, but I don't believe that 12 13 the regulations specifically singled out certain power levels, 14 but I'm just not certain.

15 COMMISSIONER ROBERTS: Is the simultaneous 16 occurrence of loss of off-site power and a LOCA design basic 17 event?

13 MR. pERLIS: Yes, sir it is one of the Chapter 15 19 events that is routinely examined for all plants, yes.

20 COMMISSIONER ROBERTS: Thank you.

21 CHAIRMAN PALLADINO: Do you have more? I know I 22 interrupted you.

23 MR. PERLIS: Yes. The only thing more I would say 24 on vitalization is that we believe as a factual matter that 25 you do not need to protect both, and in that sense, we

e 109 1 disagree with the Appeal Board, but we agree with them that 2 you do need to protect something.

3 COMMISSIONER ASSELSTINE: I'm still not quite sure 1 4 understand that point I'm not sure I quite grasp why, if you 5 have to protect the one, why you don't have to protect both of 6 them.

7 MR. PERLIS: You start running into how many S security events do you think a saboteur can successfully 9 accomplish. We are willing to assume that he can successfully 10 accomplish one successful sabotage in a protected area, but 11 not more than one. If you assume that he could successfully I get away with two, then you would need to protect both 12 13 sources.

14 COMMISSIONER ASSELSTINE: Okay.

15 MR. PERLIS: As to whether the original contentions 16 could be dismissed for lack of specificity or basis, if the 17 Appeal Board is correct in its vitalization decision, the 18 Staff believes that you could not dismiss all the contentions 19 --

20 CHAIRMAN PALLADINO: You could not what?

1 21 MR. pERLIS: You could not dismiss all the 22 contentions for lack of basis and specificity. Although the 23 State and County filed separate contentions, the Staff sees 24 essentially two contentions raised by them in their original 25 contentions. One was whether the alternate sources needed to

110 1 be protected themselves, and the second contention is whether 2 the security for the rest of the plant was adversely affected 3 by structures associated with the alternate sources.

4 As to the second contention, whether the security 5 for the rest of the plant was adversely affected, we agree 6 that the County and the State provided no sufficient basis to 7 inquire as to why security for the rest of the plant might be 8 affected.

9 However, for the first contention, which is whether 10 you need to protect the alternate power sources themselves, if 11 in fact they need to be treated as vital equipment, the pieces d

12 of equipment are clearly identified. We don't believe that 13 that contention could be dismissed for lack of basis and 14 specificity. The piece of equipment is clearly identified and 15 the rationale, the legal basis for it, if you agree with the 16 Appeal Board's vitali=ation decision, is also clear.

17 Finally, as to what would be left of the currently 18 admitted contentions, it is the Staff's view that all the 19 admitted contentions currently in front of the Kelley Board 20 are contingent upon the vitali=ation decision. And if the 21 Commission were to overrule the Appeal Board -- and the Staff 22 is not suggesting that the Commission so rule -- but if the 23 Commission did overrule the Appeal Board, we believe that the 24 Licensing Board could and should dismiss all those contentions 25 because in our view they are dependent upon vitali=ation.

111 1 That's all that I had on the three questions raised 2 by the Commission.

3 CHAIRMAN PALLADINO: Let me ask you one more 4 question. I gather LILCO was prepared to make -- I think it 5 was the EMDs, to protect the EMDs as vital equipment 6 MR. PERLIS: Well, they originally worked out an 7 agreement with the Staff last year where they would protere 8 the EMDs. They have subsequently worked out an agreement with 9 Suffolk County where they will protect both the EMDs and the 10 gas turbine.

11 CHAIRMAN PALLADINO: I guess i should have asked

' The question 12 part of this question of LILCO, but I didn't.

13 is: What does it involve? And secondly, if they did it, is it 14 a long-term operation? 't ou see, I don't know whether they 15 involve more guards or if it would involve more fences or some 16 combination thereof.

17 MR. pERLIS: In terms of what it involves, I can't 18 get into that now because it would be classified information.

, 19 As to how long it would take them to implement it before they 20 would be ready to go to low power, you would have to talk to 21 Mr. Erwin about that.

22 COMMISSIONER ASSELSTINE: Is that covered in the 23 submittals, by the way? It is not? Okay.

24 All right Maybe we could ask them.

25 Then the other is: Would that have to be litigated?

112 1 MR. PERLIS: There are two things that have to be 2 done first. The Staff has taken a preliminary look at the 3 settlement agreement. We have some comments. Mr Erwin 4 characterized them correctly. We don't believe that they are 5 very substantive in nature, but they do have to be resolved.

6 So the first point is that we would have to be satisfied. We 7 don't view that as a major concern because we think we are 8 pretty close. That is our preliminary view.

9 Secondly, you have a problem with the State of New 10 York. If the State of New York does not participate in the 11 security settlement -- and as of today, they have not -- then 12 you still have contentions before the Kelley Board which need 18 to be resolved.

14 Now, the security agreement could possibly be a 15 basis for summary disposition, but you still need a Licensing 16 Board ruling on the contentions which were filed jointly by 17 the County and State and now certainly would be prosecuted by 18 the State, for everything I have heard.

19 CHAIRMAN PALLADINO: That's all the questions 1 20 had, a might ask LILCO later -- I mean not much later -- how 21 long they think it would take. But let me go to the 22 Commissioners.

23 COMMISSIONER ASSELSTINE: Maybe just ene question.

24 Would you explain to me why you don't think you need to look 25 at the relative reliability of the qualified system and of the

113 1 unqualified substitute?

2 MR. pERLis: If you are talking about reliability.

3 we did look at the reliability of the gas turbine and the 4 EMDs. There was testimony about their startup reliability and 5 about the reliability to continually supply power. The Staff 6 found that they were sufficiently reliable to qualify under 7 GDC-17 8 If you are talking about the PRA testimony, our view 9 there is that the pRA testimony, first of all, is based on an 10 erroneous comparison because it is not comparing the EMDs and 11 the gas turbine with a system in compliance with GDC-17; it is 12 comparing them with the system that was in use at Shoreham.

13 That is not the proper comparison, we don't think.

14 So the question isn't are these as good as the TDis 15 would have been. The question that the Staff looked at and 16 the Miller Board looked at is are these systems good enough so 17 that they would meet the safety requirements of GDC-17 The 18 pRA testimony never addresses that it never gets to that.

19 And in our view, there was testimony which indicated that in 20 fact, this equipment was sufficiently reliable to meet GDC-17, 21 but that is in the record.

22 COMMISSIONER ASSELSTINE: That's all 23 COMMISSIONER ZECH: From the Staff position 24 concerning 5 percent power, could you tell me what remains as 25 far as the Staff is concerned in order to reauthori=e 5

4 114 1 percent power?

2 MR. PERLIS: As far as the Staff is concerned, you 3 have security contentions before the Kelley Board. In our 4 view, those contentions are properly before the Board because 5 we do agree with the Appeal Board on vitalization. Unless the 6 State of New York and the Staff also -- because we haven't yet 7 agreed with the settlement decision -- but unless the State of 8 New York were to agree with the settlement decision or 9 settlement agreement, you would then need some decision from 10 the Kelley Board on the merits of the contention.

11 Probably one could file summary disposition motions

[ 12 based on the settlement agreement, but you would need some 13 ruling from that Board if those contentions are valid.

14 COMMISSIONER ZECH: Thank you.

15 CHAIRMAN PALLADINO: Without having you leave the 16 table, could I get feeling from LILCO as to roughly how long 17 it would take to implement the vitalization agreement that you 18 have developed with Suffolk County Executives?

19 MR. ROLFE: Mr. Chairman, I feel that if we got the 20 go-ahead, which I certainly hope we do, that by going cn 21 several shifts and putting an all-out effort on the order of 22 three weeks, we could do a l l the modifications.

23 COMMISSIONER ASSELSTINE: Those are the ones you 24 have committed to do, so you have to do those in any event 25 MR. ROLFE: Agreed to do with Suffolk County, that's

e 115 1 correct.

2 CHAIRMAN PALLADINO: You mean you would have to do 3 that even if the Commission found this was --

4 MR. ROLFE: Oh, yes. We have promised to do that, 5 and I will not renege on that commitment 6 CHAIRMAN PALLADINO: So you will do it anyhow.

7 MR. ROLFE: We will go ahead and do that.

8 CHAIRMAN PALLADINO: I didn't quite get that answer.

9 COMMISSIONER ASSELSTINE: No, Mr. Erwin said that 10 earlier, that they had made the promise and they would stand 11 by i t.

12 MR. ROLFE: Yes, sir. It is on the order of three 13 weeks.

14 MR. ERWIN: Well, that is contingent on getting a Y

15 license, obviously.

10 ELaughter3 17 MR. ROLFE: Well, Mr Asselstine said --

I could 18 also probably do, you know, if the Staff came up with i

l 19 something -- well, not build a Maginot line or something --

l 20 could probably do that in three weeks, too.

. 21 CHAIRMAN PALLADINO: Okay, thank you.

22 Any other matters the Commission wants to take up at 23 this time 7 i

l 24 [No response]

25 CHAIRMAN PALLADINO: We thank you, gentlemen.

e 116 1 Let me point out that the Commission has scheduled a 2 meeting on June 11th on a possible vote on this matter, and it 3 is scheduled at the present time, if I read this right, at 4 4:00 p.m. on June 11th: Discussion and Possible Vote on Review 5 of ALAB-800 and Related Matters (Shoreham) It will be a 6 public meeting.

7 Well, we thank you all for participating with us 8 today. I think it has been a fruitful exchange, and we will 9 stand adjourned.

10 EWhereupon, at 5:05 p.m., the meeting was 11 adjourned.3 12 13 14 15 16 17 18 19 20 21 22 23 a

24 25

1 CERTIFICATE OF OFFICIAL REPORTER 2

3 ,

4 .

5 This is to certify that the attached proceedings 6 before the United States Nuclear Regulatory Commission in the 7 matter of: Commission Meeting (Publig Meeting) 8 9 Name of proceeding: Oral Argument on Shoreham 10 11 Docket No.

12 Place: Washington, D. C.

13 Date: Tuesday, June 4, 1985 14 15 were held as herein appears and that this is the original 16 transcript thereof for the file of the United States Nuclear -

17 Regulatory Commission.

ja (Signature) ./

39 - .two / u-t a -

(TypedName'ofReprter) ,/'uza S @e B. G ng 20 21 22 23 Ann Riley & Associates. Ltd.

24 e

25

• 6/4/85 SCHEDULING NOTES TITLE: ORAL ARGUMENT ON SHOREHAM SCHEDULED: 2:00 P.M., TUESDAY, JUNE 4, 1985 (OPEN)

DURATION: 1-1/2 HRS SPEAKERS: FABIAN G. PALOMIhD (15 MIN)

(NEW YORK STATE)

MARTIN ASHARE (15 MIN)

(SUFFOLK COUNTY)

WAYNE PROSPECT (5 MIN)

(SUFFOLK COUNTY LEGISLATOR)

DONALD P. ERWIN (15 MIN TOTAL)

ROBERT ROLFE

( ATTORNEYS FOR LILCO)

ROBERT PERLIS (15 MIN TOTAL)

, RALPH CARUSO l CHARLES GASKIN (NRC STAFF)

I

Cii I( ii i i i (h ih h h (h(hgh;hphphghphphp h h hph p 12/82 TRANSMITIAL 'IO: Document Cbntrol Desk, 016 Phillips

ADVANCED COPY 'IO: / / -

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/

3 DATE: [o [7 /I/

J , cc: OPS File f C&R (Natalie)

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