ML20129K157
| ML20129K157 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 07/19/1985 |
| From: | Sherwin Turk NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#385-910 OL-3, NUDOCS 8507230445 | |
| Download: ML20129K157 (56) | |
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BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD .
In the Matter of )
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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3 y (Emergency Planning)
(Shoreham Nuclear Power Station, Unit 1)
NRC STAFF'S BRIEF IN RESPONSE TO LONG ISLAND LIGHTING COMPANY'S APPEAL FROM THE PARTIAL INITIAL DECISION ON EMERGENCY PLANNING 0F APRIL 17, 1985 t
Sherwin E. Turk Deputy Assistant Chief Hearing Counsel July 19, 1985 8507230445 850719 PDR ADOCK 05000322 C PDR .
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NUCLEAR REGULATORY COMMISSION -pg dfL 22 -
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BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD ,
i;
- In the Matter of )
LONG ISLAND LIGHTING COMPANY Docket No. 50-322-0L-3
) (Emergency Planning)
(Shoreham Nuclear Power Station, )
Unit 1) )
NRC STAFF'S BRIEF IN RESPONSE TO LONG ISLAND LIGHTING COMPANY'S APPEAL FROM THE PARTIAL INITIAL DECISION ON EMERGENCY PLANNING 0F APRIL 17, 1985 I
i Sherwin E. Turk
[ Deputy Assistant Chief Hearing Counsel l
l l
l l
July 19, 1985 l,
TABLE OF CONTENTS Page TABLE OF CITATIONS ......................................... ii STATEMENT OF THE CASE ...................................... 1
. 1 STATEMENT OF ISSUES ........................................ 8 l 1 ARGUMENT ................................................... 9 I. THE LICENSING BOARD CORRECTLY HELD THAT FEDERAL LAW DOES NOT PREEMPT THE LAWS OF NEW YORK STATE, INSOFAR AS THOSE LAWS PREVENT LILCO FROM UNDERTAKING THE SWEEPING RESPONSIBILITIES ALLOCATED TO IT UNDER ITS OFFSITE EMERGENCY PLAN ................................ 9 A. Congress Did Not Intend to Occupy the Field of Offsite Emergency Planning .................... 14 B. There is No " Actual Conflict" Between the Federal and State Laws ........................... 26 II. IN VIEW OF THE PRESENTLY UNDEVELOPED RECORD, THE LICENSING BOARD PROPERLY REJECTED LILC0'S ASSERTION THAT SUFFOLK COUNTY AND THE STATE OF NEW YORK WOULD RESPOND IN THE EVENT OF AN ACTUAL EMERGENCY, THUS CURING LILC0'S LACK OF LEGAL AUTHORITY (" REALISM") .... 31 III. THE LICENSING BOARD PROPERLY REJECTED LILC0'S
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" IMMATERIALITY" ARGUMENT AS TO FUNCTIONS IDENTIFIED IN CONTENTIONS 1-4 AND 9-10, WHERE THOSE FUNCTIONS WERE INCORPORATED IN LILC0'S PLAN AS A MEANS OF COMPLYING WITH THE COMMISSION'S EMERGENCY PLANNING
, REGULATIONS AND REGULATORY GUIDANCE ................... 36 IV. THE LICENSING BOARD ERRED IN FINDING THAT LILC0 EMPLOYEES WHO WOULD PERFORM A COMMAND AND CONTROL FUNCTION LACK SUFFICIENT INDEPENDENCE FROM LILC0 TO MAINTAIN THEIR INDEPENDENCE AND OBJECTIVITY IN AN EMERGENCY (CONTENTION 11) ............................. 40 V. THE LICENSING BOARD'S DETERMINATION THAT THERE IS NO NEW YORK STATE PLAN APPLICABLE TO THE SH0REHAM FACILITY, AND THAT NO PROVISIONS EXIST FOR A C0ORDINATED RESPONSE BY THE STATE IN THE EVENT OF AN EMERGENCY (CONTENTION 92), SHOULD BE AFFIRMED ............................... 44 CONCLUSION ................................................. 46
- ii -
TABLE OF CITATIONS Page JUDICIAL DECISIONS Cuomo v. Long Island Lighting Co., Consol. Index No. 84-4615 (N.Y.Sup.Ct., Feb. 20, 1985) ............................. 7, 31, 32 q Fidelity Federal Savings & Loan Ass'n v. de la Cuesta, 458 U.S. 141 (1982) ...................................... 12 Jones v. Rath Packing Co., 430 U.S. 519 (1977) ............. 12 Northern States Power Co. v. Minnesota, 447 F.2d 1143 78th Ci r. 1971), aff'd mem. , 405 U.S.1035 (1972) . . . . . . . . 11, 12, 16 Pacific Gas and Electric Co. v. State Energy Resources Conservation and Development Comission, 461 U.S.190 (1983) ................................................... passim Perez v. Campbell, 402 U.S. 637 (1971) ..................... 27 Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947) ....... 12 Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 78 L. Ed. 2d 443 (1984) .................................. 12, 16, 17, 18, 20, 28 United States '.. City of New York, 463 F. Supp. 604 (S.D.N.Y. 1978) .......................................... 17 NUCLEAR REGULATORY COMMISSION PROCEEDINGS Comission Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-85-12, 21 NRC (June 20, 1985) stay denied per curiam sub. nom Cuomo v. NRC, No. 85-1042 (D.C. Cir. ,
. July 3, 1985) ............................................ 34-35 Long Island Lighting Co. (Shoreham Nuclear Power Station,
- Unit 1), CLI-83-13, 17 NRC 741 (1983) .................... 3, 25 Atomic Safety and Licensing Appeal Board Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-443, 6 NRC 741 (1977)................................................... 10
- iii -
fage Consolidated Edison Co. of New York (Indian Point Station, Unit No. 2), ALAB-399, 5 NRC 1156 (1977) ................. 10, 11 Consolidated Edison Co. of New York (Indian Point Station, Unit No. 2), ALAB-453, 7 NRC 31 (1978) ................... 10, 11 Niagara Mohawk Power Co. (Nine Mile Point Nuclear Station, Unit 2), ALAB-264, 1 NRC 347 (1977) ...................... 36 Northern States Power Co. (Tyrone Energy Park, Unit 1),
ALAB-464, 7 NRC 372 (1978) ............................... 10 Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-809, 21 NRC (June 17, 1985) ..... 39 Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-459, 7 NRC 179 (1978) ................................................... 36 Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-493, 8 NRC 253 (1978) ................................................... 10 Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-189, 7 AEC 410 (1974) ................................................... 10 Atomic Safety and Licensing Board Long Island Lighting Co. (Shoreham Nuclear Power Station, l Unit 1), LBP-83-22, 17 NRC 608, aff'd on other arounds, CLI-83-13, 17 NRC 741 (1983) ............................. 3, 17
(
Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-85-12, 21 NRC 644 (1985) (the "PID") ........ passim l Pennsylvania Power and Light Co. (Susquehanna Steam l EU tric Station, Units 1 and 2), LBP-82-30, 15 NRC 771 j 11982) ................................................... 36 l
1
- iv -
Page STATUTES Atomic Energy Act of 1954, as amended, 42 U.S.C. 9 2011 et seq. .................................................. 11, 15, 20
- Energy Reorganization Act of 1974, 42 U.S.C.
6 5801 g seq. ........................................... 20 1984-85 NRC Authorization Act, 9 108, Pub. L. No.98-553, 98 Stat. 2825 (1984) ..................................... 21 1982/83 NRC Authorization Act, f 5, Pub. L. No.97-415, 96 Stat. 2067 (1983) ..................................... 21 1980 NRC Authorization Act, 9 109, Pub. L. No.96-295, 94 Stat. 780 (1980) ...................................... 21, 24 REGULATIONS 10 C.F.R. 5 2.762(c) ....................................... 2 10 C.F.R. 6 50.47 .......................................... 37, 38 10 C.F.R. 6 50.47(a) ....................................... 25 10 C.F.R. 5 50.47(a)(1) .................................... 37 10 C.F.R. 6 50.47(a)(2) .................................... 20 10 C.F.R. Q 50.47(b) ...............................i....... 26 10 C.F.R. Q 50.47(b)(5) .................................... 41 10 C.F.R. 5 50.47(b)(10) ................................... 37 10 C.F.R. 5 50.47(c) ....................................... 39
. 10 C.F.R. 6 50.47(c)(1) .................................... 39 10 C.F.R. Part 50, Appendix E .............................. 26, 37 10 C.F.R. Part 50, Appendix E, 9 IV.D.3 .................... 27
-v-o Page MISCELLANE0US Emergency Planning Around Nuclear Power Plants: Nuclear Regulatory Commission Oversight Hearings Before a Subcomm. of the Comm. on Government Operations, 96th Cong., 1st Sess. 534 (1979) .............................. 24 j H.R. Rep. No.98-103, Part 1, 98th Cong.,1st Sess.
(May 11, 1983) ........................................... 21
" Memorandum of Understanding Between Federal Emergency Management Agency and Nuclear Regulatory Commission,"
50 Fed. Reg. 15,485 (April 18, 1985) ..................... 20 NUREG-0654/ FEMA-REP-1, Rev. 1, " Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants,"
(November 1980) ........................................... 37, 38, 45 Senate Comm. on Environment and Public Works, S. Rep.
i No. 176 on S. 562, Pub. L. No.96-295 (1979), 96th Cong.,
2d Sess. (1980), reprinted in U.S. Code Cong. & Ad. News 2257-58 .................................................. 22 Statement of Consideration, " Emergency Planning,"
l 45 Fed. Rejl. 55,402(1980)............................... 20, 23-24, 26, 35 l
i
! ' Suffolk County Leg. Reg. No. 111-1983 ...................... 3, 17 U.S. Constitution , Article VI, Clause 2 . . . . . . . . . . . . . . . . . . . . 11 U.S. Constitution, Tenth Amendment ......................... 11 l
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'hNfD UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 3 jj,'22 pj.jg
' T ':5.twe BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL <
. In the Matter of )
)
. LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-0L-3 1 (Emergency Planning)
)
(Shoreham Nuclear Power Station, )
Unit 1) )
NRC STAFF'S BRIEF IN RESPONSE TO LONG ISLAND LIGHTING COMPANY'S APPEAL FROM THE PARTIAL INITIAL DECISION ON EMERGENCY PLANNING OF APRIL 17, 1985 STATEMENT OF THE CASE Introduction This case arises as an appeal by Applicant Long Island Light Company
(" Applicant" or "LILC0") from the Fartial Initial Decision ("PID") on emergency planning issued by the Atomic Safety and Licensing Board in this proceeding on April 17,1985.II In its PID the Licensing Board l
resolved virtually all outstanding offsite emergency planning issues in LILC0's favor, except in three areas: (1) LILC0's lack of legal l
authority to implement various aspects of its offsite emergency plan (Contentions 1-10); (2) a conflict of interest involving LILC0 employees who would occupy a " command and control" function in the event of an emergency (Contention 11); and (3) the lack of a New York State offsite
-1/ Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
LBP-85-12, 21 NRC 6L4 (1985).
i 1
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emergency plan (Contention 92). 2/ One contested emergency planning issue (on the relocation center) remains to be resolved and will be addressed by the Licensing Board in a further partial initial decision, 2/ at which time the Licensing Board will render its " ultimate
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decision as to whether 'there is reasonable assurance that adequate i protective measures can and will be taken in the event of a radiological emergency'atShoreham"(id.,at919-20). On May 2, 1985, LILC0 filed its notice of appeal from the PID and on June 3,1985, LILC0 filed its brief S/ ni support of that appeal. El Pursuant to 10 C.F.R. 9 2.762(c), the NRC Staff (" Staff") hereby files its brief in response to LILC0's appeal. For the reasons more fully set forth herein, the Staff submits that the Licensing Boar'd correctly resolved the legal authority and state plan issues as to which LILC0 appeals (Contentions 1-10 and 92) and, accordingly, the Staff opposes LILC0's appeal on those matters. At the same time, the Staff
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-2/ The Licensing Board also found various minor deficiencies in LILCO's plan, which did not prevent the plan's approval, and left it to the Staff to confirm LILC0's rectification of these minor matters.
LILCO has not appealed from these determinations.
3/
Reopened hearings on the relocation center issue were held on June 25-26, 1985. Proposed findings of fact and conclusions of law are due to be filed by all parties on or before July 22, 1985; and reply findings, if any, are to be filed by July 26, 1985.
4/ "LILCO's Brief Supporting Its Position On Appeal From The ' Partial Initial Decision on Emergency Planning' of April 17, 1985," dated June 3, 1985 (" App. Br.").
5/ Appeals from other aspects of the Licensing Board's PID have been filed by Suffolk County and the State of New York, and are to be briefed separately from the instant appeal by LILCO.
submits that the Licensing Board erred in deciding the conflict of interest issue (Contention 11) and its decision as to that issue should be reversed.
Background and Reference to Rulings On February 17, 1983, the Suffolk County legislature resolved that it would not approve or ibplement an offsite emergency plan for the Shoreham facility, due to its determination that local conditions on Long Island would preclude any offsite plan from being implemented effectively (Suffolk County Leg. Reg. No. 111-1983). Suffolk County then moved to terminate this operating license proceeding, on the grounds that LILCO would be unable to demonstrate compliance with the Commission's emergency planning regulations without the County's participation in adopting and implementing an offsite plan. The Licensing Board denied Suffolk County's motion on April 20, 1983, and referred its ruling to the Commission;5/ the Coninission affirmed the Board's ruling in pertinent part, on May 12, 1983, 7_/ holding that it was bound to consider an offsite emergency plan proffered by a utility in the absence of State or county plans. LILC0's Transition Plan, submitted on May 26, 1983, l -
l . f/ Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
l LBP-83-22, 17 NRC 608, aff'd on other grounds, CLI-83-13, 17 NRC l 741(1983). As noted by the Licensing Board, the County's motion l "was limited to the legal issue of whether a county's refusal to prepare or implement a radiological emergency response plan operates as a veto, precluding as a matter of law the issuance of a full power operating license for a nuclear power plant." PID at 649 (emphasisadded).
-7/ Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
! CLI-83-13, 17 hRC 741 (1983).
I
provided for the establishment of a Local Emergency Response Organization (LER0) to be comprised of LILCO employees and contractor personnel, which would be responsible for the performance of various offsite emergency response functions.
Intervenors' offsite emergency planning contentions (including d
Contentions 1-10, 11, and 92) were filed in revised form on July 26, 1983,El and were admitted for litigation on August 19, 1983. EI Hearings on the contentions commenced in August 1983 and concluded in August 1984; no hearings were held on Contentions 1-10, and the parties agreed that no such hearings were necessary (Tr. 13,823 (LILCO);
Tr.13,831 (Suffolk County); Tr.13,832 (State of New York); and Tr. 13,834 (NRC Staff). EI Following repeated suggestions by the g/ Intervenors' proposed emergency planning contentions (Phase II) were originally filed on July 7,1983, as their " Consolidated Emergency Planning Contentions"; these contentions were then reorganized and submitted in revised form on July 26, 1983, as Intervenors' " Revised Emergency Planning Contentions". The contentions are set forth in full text in Appendix C to the PID. See 21 NRC, at 958 et seg.
9/ In admitting Contentions 1-10, the Licensing Board observed that "these contentions present questions of law which may be amenable to
! disposition without hearing." Special Prehearing Conference Order (Ruling on Contentions and Establishing Schedule for Discovery, Motions, Briefs, Conference of Counsel, and Hearing)," dated August 19,1983, at 3-4.
10/ Contentions 1 and 2 concern LILCO's proposal to station traffic guides at key intersections to direct or guide traffic in the event of an emergency, although traffic will not be prohibited from moving in particular directions; flares, traffic cones, and stationary vehicles are to be placed on the roadways as a means of channeling traffic; various traffic lanes are to be blocked, and a two-mile i section of roadway will be changed from two-way to one-way opera-i tion. Contention 3 concerns LILCO's proposal that, in advance of i
l (FOOTNOTE CONTINUED ON NEXT PAGE) l 1
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Licensing Board, b n iMarch'1984 actions seeking declaratory judgment were filed before the New York Supreme Court for Suffolk County, by the State of New York, Suffolk County, and the Town of Southampton, concerning the legal authority questions raised by Contentions 1-10.
4 (F0OTNOTE CONTINUED FROM PREVIOUS PAGE) any emergency, it will post " trailblazer" signs along the major roads in the EPZ (this is the only pre-emergency function to be exercised by LILC0 that is challenged in Contentions 1-10).
Contention 4 concerns LILC0's plan, in the event of an emergency, for LERO personnel to utilize LILCO's tow trucks and line trucks to remove stalled cars and other obstructions from the roadways.
Contention 5 concerns LILC0's plan, in the event of an emergency, to activate the prompt notification system (consisting largely of a system of fixed sirens, tone alert radios, and the emergency broad-castsystem). LILC0 employees will determine the content of the EBS messages, will decide when the EBS broadcast should be made, and will initiate the broadcast; LILC0 has made arrangements with local radio stations to carry the EBS messages. Contentions 6, 7 and 8 concern LILC0's proposal that it make decisions and recommendations to the public for protective responses during an emergency; such recommendations will be made for persons within both the 10-mile plume exposure pathway EPZ and the 50-mile ingestion pathway EPZ, as well as with respect to reentry and recovery. Contention 9 addresses LILCO's plan to dispense fuel from tank trucks, stationed near evacuation routes, to any motorists who may run out of fuel l during an evacuation. Contention 10 addresses LILCO's proposal that l
its personnel identify persons entering the E0C (located on LILC0's property), maintain perimeter / access control to evacuated areas, and assist people at the relocation centers (all of which are located in adjacent Nassau County); LILC0 personnel are not expected to use threats or force in maintaining access control, and will rely upon the Nassau County police to provide any necessary security at the relocation centers. References to these matters are set forth in l
the "NRC Staff's Response Pursuant to the Licensing Board's
- Memorandum and Order of October 22, 1984," dated December 7, 1984, at 16-17, and 25-31.
-11/ The Licensing Board stated that it " believes that these legal contentions are properly matters to be disposed of by the New York State courts." (Tr. 3675). See also, Tr. 715, 2229, 2390, and 3661-62.
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On August 6,1984, LILC0 moved for sumary disposition on Conten-tions 1-10. EI LILCO's motion " assume [d], for the sake of argument, that the Intervenors . . . are correct that state law prohibits LILC0 from taking the actions specified in Contentions 1-10," and then argued that those laws are preempted by federal law, and/or that the contentions 4 should be resolved in LILC0's favor, as a factual matter, on grounds of
" realism" and/or "imateriality" (see PID at 896). Responses in oppo-sition to LILC0's motion were filed by Suffolk County, the State of New York, and the NRC Staff (see ,id.).
On October 22, 1984, the Licensing Board issued a Memorandum and Order in which it deferred ruling on LILC0's motion for summary dispo-sition, as premature under Appeal Board and Federal court precedents, until the issuance of its initial decision on other emergency planning matters (see M., at 897). El The Licensing Board also requested briefs from the parties indicating "who they believe should prevail on each
- contention and why the contention should be resolved in that manner," and invited the parties to include in their briefs a discussion of the following issues:
- 1. In connection with LILC0's "imateriality" argument, whether the LILC0 activities enumerated in Contentions 1-10 are necessary pursuant to NRC regulations in order to obtain an operating license.
-12/ " Motion for Sumary Disposition of Contentions 1-10 (The ' Legal Authority' Issues)", dated August 6, 1984.
-13/ " Memorandum and Order Deferring Ruling on LILC0 Motion for Sumary Disposition and Scheduling Submission of Briefs on the Merits,"
dated October 22, 1984.
- 2. In connection with LILC0's " realism" argument, what effect would an unplanned response by the State or County have and would such a response result in chaos, confusion and disorgani-zation so as to compel a finding that there is no " reasonable assurance that adequate protective measures can and will be taken in thg4pvent of a radiological emergency" at Shoreham?
(see id.). -
Briefs in response to the Licensing Board's Memorandum and Order were i filed by all parties on or before December 7, 1984.
On February 20, 1985, the New York Supreme Court, Suffolk County, issued its decision on the Intervenors' consolidated actions for a declaratory judgment on LILC0's legal authority to implement its offsite emergency plan. El In its decision, the Supreme Court found that in the implementation of LILC0's plan by LILC0 employees and contractors, LILC0 would be performing activities which are inherently governmental in nature and which fall within the State's historic police powers, and that as a private corporation, LILC0 does not have a right to exercise these governmental functions. El An appeal from this decision has been noticed by LILCO before the Appellate Division of the New York Supreme M/ The Licensing Board also requested the parties' views as to what action the Board should take on Contentions 1-10 in the event that there is no decision from a New York State court at the time the
. Initial Decision on emergency planning proceeding is issued; this question was mooted by subsequent events.
15/ Cuomo v. Long Island Lighting Co., Consol. Index No. 84-4615 (N.Y.
Sup. Ct., Feb. 20, 1985).
-16/ While Contentions 1-10 asse t that specific New York State and local statutes prohibit the actis:'..es specified in those contentions, the State and Suffolk County primarily argued in the State court that those activities were unlawful as a usurpation of the State's police powers. Accordingly, the New York Supreme Court did not address the specific State and local statutes cited in Contentions 1-10.
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Court, Second Judicial Department, although briefs have not yet been filed.
On February 27, 1985, LILCO renewed its motion for summary disposition of the legal authority issues (Contentions 1-10), on the grounds that New York law is preempted by Federal law to the extent that 4 the State's laws preclude LILC0 from implementing its offsite emergency plan. El On April 17, 1985, following the filing of responses to LILC0's renewed motion for summary disposition (see PID at 899), the Licensing Board issued its Partial Initial Decision. The instant appeal by LILCO, as well as appeals by the State of New York and Suffolk County from other portions of the PID were then filed.
STATEMENT OF ISSUES
- 1. Whether the Licensing Board correctly held that Federal law does not preempt the laws of New York State, insofar as those laws prevent LILC0 from undertaking the sweeping responsibilities allocated to it by its proposed offsite emergency plan.
- 2. Whether, in view of the presently undeveloped state of the record, the Licensing Board properly rejected LILC0's assertion of a
- " realism" defense, whereby LILC0 claimed that Suffolk County and the State of New York would respond in real emergency, thus curing LILC0's lack of authority to implement its offsite emergency plan.
E/ "LILC0's Renewal Motion for Summary Disposi f. ion of Legal Authority Issues on Federal Law Grounds", filed February 27, 1985.
- 3. Whether the Licensing Board properly rejected LILC0's "ima-teriality" defense with respect to Contentions 1-4, 9 and 10, where the traffic control functions specified in those contentions had been incor-porated in LILC0's offsite emergency plan as a means of demonstrating compliance with the Commission's emergency planning regulations and
' regulatory guidance.
- 4. Whether the Licensing Board correctly held that a conflict of interest was created by LILC0's offsite emergency plan, by the placement of LILC0 employees in various " command and control" functions which cre normally assigned to governmental officials, in that those individuals would not passess sufficient independence from LILC0 in the event of an actual emergency (Contention 11).
- 5. Whether the Licensing Board correctly held that in the absence of a site-specific New Ycrk State plan, and given the uncertainties as to how the State might react in the event of an emergency, the lack of pre-planned and assured State participation in implementing LILCO's "Transi-tion Plan" constitutes a serious substantive deficiency in emergency preparedness at Shoreham (Contention 92).
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ARGUMENT
, I. THE LICENSING BOARD CORRECTLY HELD THAT FEDERAL LAW DOES NOT PREEMPT THE LAWS OF NEW YORK STATE, INSOFAR AS THOSE LAWS PREVENT LILC0 FROM UNDERTAKING THE SWEEPING RESPONSIBILITIES ALLOCATED TO IT UNDER ITS OFFSITE EMERGENCY PLAN.
In its PID the Licensing Board deferred to the New York Supreme Court's ruling of February 20, 1985, in view of that Court's "juris-
diction and expertise" to decide the State law issues (PID at 899). El Accordingly, the Board accepted the State Supreme Court's finding that the actions cited in Contentions 1-10 (see n.10, supra), are prohibited by New York law. (Id.). Further, the Board found that the question was ripe for decision, E I that no useful purpose would be served by awaiting 4
-18/ LILC0 does not here contest the State Court's decision on State law issues (App.Br.at5). The Licensing Board's determination to defer to the State court's ruling on State law issues is consistent with prior Appeal Board decisions. The Appeal Board has, at times, determined questions of State law. See, e.g., Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2),
ALAB-493, 8 NRC 253, 266 (1978) (determining the border between Kentucky and Indiana for purposes of deciding whether an effluent discharge certificate had been obtained from the proper State).
However, the Appeal Board has generally remarked that questions of State law should be resolved by State courts or agencies, on grounds of comity or lack of agency expertise. See, e._g_., Northern States Power Co. (Tyrone Energy Park, Unit 1), XLAB-T64, 7 NRC 372, 375 (1978) ("The requirements of State law are beyond our ken; such matters are for the State regulatory commission"); Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units ] and 2), ALAB-443, 6 NRC 741, 748 (1977) (Board's role was limited to deciding Federal issues and not questions of State law; plant construction would not be suspended pending a resolution of those questions by the State courts, where asserted potential outcome could not be known);
Southern California Fdison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-189, 7 AEC 410, 412 (1974) (construction would not be stayed pending outcome of marine environment study required by State Coastal Commission).
_1_9/ The Licensing Board's " ripeness" determination is consistent with the Appeal Board's decisions in Consolidated Edison Co. of New York (Indian Point Station, Unit No. 2), ALAB-399, 5 NRC 1156, 1170 (1977), and Consolidated Edison Co. of New York (Indian Point Station, Unit No. 2), ALAB-453, 7 NRC 31, 35, 37 (1978). While the Appeal Board there required proper deference to the prior decision of the Appellate Division, the highest New York State court to have decided the State law question at that time, the Appeal Board did not require the Licensing Board to await the outcome of a pending motion for leave to appeal to the Court of Appeals, in view of the (FOOTNOTE CONTINUED ON NEXT PAGE)
appellate review of the Supreme Court's ruling, and that the Board was empowered to decide the federal preemption question.
As noted by the Licensing Board (PID at 900-01), the preemption ,
l doctrine is founded in the Supremacy Clause of the United States l
- 1 Constitution, Article VI, Clause 2. That Clause provides as follows: '
4 This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be j the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws Contrarynotwithstanding.f0pnyStatetothe Congress' authority to legislate in the field of atomic energy has been broadly recognized, based upon its " constitutionally granted pcwers over the common defense and security, interstate and foreign commerce and promotion of the general welfare." Northern States Power Co. v.
Minnesota, 447 F.2d 1143,1147 (8th Cir.1971), aff'd mem., 405 U.S.1035 (1972), citing the Atomic Energy Act of 1954, as amended, $s 1 and 2, 42 U.S.C. 95 2011, 2012.
(F00TNOTE CONTINUED FROM PREVIOUS PAGE) delay that had already occurred and the fact that time was "of the i essence." ALAB-399, supra, 5 NRC at 1168, 1170-71; ALAB-453, supra, 7 NRC at 36, 37 n.29.
l
-20/ The Supremacy Clause has often been read in conjunction with the Tenth Amendment to the Constitution, with which it has been noted to be in tension; that A.nendment provides as follows:
The powers not delegated to the United States by the
, Constitution, nor prohibited by it to the States, are i reserved to the States respectively, or to the people.
l
In determining whether federal laws are preemptive, it must be ascertained whether Congress has acted "in such a manner as to exclude the States from asserting concurrent jurisdiction over the same subject matter." Id., 447 F.2d at 1146. This federal preemption may be
- established in either of two general ways. First, Congress' intent to
, occupy a given field to the exclusion of the States may be demonstrated either by its so stating in explicit terms, or by its establishment of a
"' scheme of federal regulation so pervasive as to make reasonable the inference that Congress left no room to supplement it.'" Pacific Gas &
Electric Co. v. State Energy Resources Conservation and Development Commission, 461 U.S. 190, 203-204 (1983), citing Jones v. Rath Packing Co.,
430 U.S. 519, 525 (1977); Fidelity Federal Savings & Loan Ass'n. v.
de la Cuesta, 458 U.S. 141, 153 (1982); and Rite v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). Secondly, federal preemption may be established by the existence of an " actual conflict" between the State and federal laws:
Even where Congress has not entirely displaced state regulation in a specific area, state law is preempted to the extent that it actually conflicts with federal law. Such a conflict arises when
" compliance with both federal and state regulations is a physical impossibility," Florida Lime &
~
Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 TT333) or where state law " stands as an obstacle to the accomplish-ment and execution of the full
. purposes'and objectives of Congress." Hines v.
Davidowitz, 312 U.S. 52, 67 (1941).
Pacific Gas & Electric Co., supra, 461 U.S. at 204. Accord, Silkwood v.
Kerr-McGee Corp., 464 U.S. 238, , 78 L. Ed. 2d 443, 452 (1984).
The Licensing Board correctly applied these principles in rejecting LILCO's assertion that federal law preempts the laws of New York State, insofar as those laws preclude LILC0 from implementing its offsite emer-gency plan. The Board observed, first, that Congress had not explicitly preempted state laws in the area of offsite emergency plannin1:
The parties do not maintain, nor have we found, that Congress has expressly occupied the area of offsite emergency planning for nuclear power plants. The Atomic Energy Act of 1954, as amended, is silent with respect to offsite emergency planning. It does not address the responsibility and authority of State and federal governments to regulate in this area. Nor do the 1980, 1982-83, or 1984-85 NRC Authorization Acts provide an express statement of Congressional intent to preempt State law.
(PID at 901). E Having so found, the Board proceeded to determine if there existed either a " pervasive" scheme of federal regulation or an " actual conflict" between State and federal laws, such as to warrant a finding of implied preemption. In so doing, the Licensing Board applied a fundamental principle of Constitutional law, that federal preemption in areas which are within the States' traditional police powers must be predicated upon a finding of " clear and manifest" preemptive intent by Congress:
~
The State and local laws which Judge Geiler, of the New York State Supreme Court, ruled prohibit LILC0 from performing the functions described in Contentions 1-10 were enacted pursuant to the State's police powers. A conclusion that a State's traditional police powers are preempted must be premised on a finding that it was the " clear and manifest purpose of Congress" to supersede State 2_1/ On appeal, as before the Licensing Board, LILC0 has not contended that Congress explicitly preempted State law in this area.
1aw. Pacific Gas & Electric Co., supra, 461 U.S.
190, 75 L. Ed. 2d at 766; Rice v. Santa Fe Elevator 2or . , 331 U.S. 218, 230, DTI. Ed.1447 (1947).
C Thus, a mere inference that Congress intended to preempt State law will not be sufficient to support a finding of preemption where State police powers are involved.
(PID at 901-02). Moreover, the Licensing Board noted that LILCO, as the i
party seeking to show preemption, " carries the burden of demonstrating that it was the ' clear and manifest purpose' of Congress to preempt State law." (I_d., at 902; citations omitted). E _
A. Congress Did Not Intend to Occupy the Field of Offsite Emergency Planning.
With respect to whether there is a " scheme of federal regulation so pervasive as to make reasonable the inference that Congress left no room to supplement it," the Licensing Board properly recognized that the Commission has been assigned responsibility for regulating the construction and operation of nuclear power plants, pursuant to 22/ In holding that LILCO bears the burden of demonstrating Congress' intent to preempt State law, the Licensing Board rejected LILC0's argument that such intent should be presumed, on the theory that
"[t]he federal government has occupied the entire field of nuclear safety concerns, except the limited powers expressly ceded to the States." (See also App. Br. at 12-16). While the principle cited by LILC0 has generally been held to be valid, it does not clearly apply in this instance. Offsite emergency planning presents certain unique circumstances, unrelated to most nuclear facility licensing issues, in that the States have traditionally been responsible for disaster preparedness under their police powers, and are more experienced and better qualified to direct public responses in instances of disaster. Moreover, many aspects of offsite emergency planning do not require the Commission's technical expertise in matters associated with nuclear power. See discussion infra, at 17-20.
I ._ . - .. .
5 274(a)(1) of the Atomic Energy Act, 42 U.S.C. 5 2011 et. seg. (PIDat 902). The Board further noted, however, that a limitation on the NRC's authority is provided by 5 274(k) of the Act, which provides that "nothing in this section shall be construed to affect the authority of any State or local agency to regulate activities for purposes other than i
protection against radiation hazards." 42 U.S.C. 5 2021(k). El These statutory provisions were recently analyzed and interpreted by the Supreme Court in Paciff_c Gas and Electric Co., supra. There, the d
Supreme Court held that a California statute imposing a moratorium on the certification of new nuclear plants was not preempted by the Atomic Energy Act, where the California law was based upon the State's concern that nuclear power might become an uncertain and uneconomical source of energy in the absence of a prior resolution of waste disposal problems.
The Court recognized that Congress had not exclusively occupied the field of nuclear power regulation in all of its respects, but that certain 23/ In addition, Section 271 of the Act provides:
Nothing in this chapter shall be construed to affect the authority or regulations of any Federal, State or local agency with respect to the generation, sale, or trans-mission of electric power produced through the use of nuclear facilities licensed by the Commission:
Provided, that this section shall not be deered +.o confer upon any Federal, State or local agency any authority to regulate, control, or restrict any activities of the Commission.
42 U.S.C. 5 2018. As noted by the Licensing Board (PID, at 903),
"[t]his section was enacted to allow States to exercise the same regulatory authority over nuclear power as they had over the production of electricity by other means." See Pacific Gas and Electric Co., supra, 461 U.S. at 205, 208-12.
t
areas of regulation were left to the States -- even if the States' exercise of their authority might affect the determination as to whether a nuclear power plant would be built:
Even a brief perusal of the AEA reveals that despite its
. comprehensiveness it does not at any point ev.aressly .
require the States to construct or authorize nuclear
, power plants or prohibit the States from deciding, as an absolute or conditional matter, not to pennit the con-struction of any further reactors . . . as we view the issue Congress, in passing the 1954 Act and in subse-quently amending it, intended that the federal govern-ment should regulate the radiological safety aspects of a nuclear plant, but that the States retain their tradi-tional responsibility in the field of regulating elec-trical utilities for determining questions of need, reliability, cost, and other related State concerns.
Pacific Gas & Electric Co., supra, 461 U.S. at 205.
In sum, while the regulation of radiological health and safety matters associated with the operation of nuclear power reactors has consistently been recognized to be the exclusive province of the federal government under the Atomic Energy Act, b the Supreme Court's decision in Pacific Gas and Electric Co. teaches that where a State's laws are enacted pursuant to powers which it has traditionally exercised, for
-24/ See, Je. ., Silkwood supra, 464 U.S. at , 78 L. Ed. 2d at 452-53; Pacific Gas & Electric Co., su ra, 461 li3. at 205, 207; Norther _n States Power Co., supra, 447 .c at 1149-54.
purposes unrelated to radiological health and safety, El such preemption should not be presumed. EI Further, the Supreme Court's decision in Silkwood, supra, instructs that where a State acts in areas in which the Commission's expertise in radiological matters is not required, preemption should not be presumed.
e There, the Supreme Court held that a State-authorized award of punitive
-25/ LILC0's assertion that the PID " misapplies" the " state purpose" test, and that "the state's purpose in regulating makes no differ-ence to the preemption analysis" is incorrect. The State's purpose in legislating is clearly relevant to the preemption analysis and, indeed, was the central factor in the Supreme Court's reasoning in Pacific Gas and Electric Co., supra, 461 U.S. at 212-16.
LILC0 also asserts that although the State laws were enacted with a non-radiological purpose, the Board should have considered the State and County's purpose in applying those laws (App. Br. at 19-23).
However, a litigant's motive in seeking to apply laws which had been enacted for proper purposes is irrelevant to a determination as to whether the laws, themselves, should be preempted. Further, the Licensing Board correctly disposed of LILC0's assertion in this regard, citing the Supreme Court's refusal to look beyond the avowed purpose of the legislation and to avoid "becom[ing] embroiled in attempting to ascertain [the] State's true motive." (PID at 904, citing Pacific Gas and Electric Co., supra, 461 U.S. at 216. The decision in United States v. City of New York, 463 F. Supp. 604 (S.D.N.Y. 1978), is inapposite. There, unlike the circumstances surrounding the development of the State laws at issue here, both the purpose of the legislation and the manner in which it was applied by the City, demonstrated to the court that the law's real purpose was to regulate radiological health and safety matters.
-26/ The 1983 Suffolk County resolution (Leg. Reg. 111-1983) should be
. contrasted with the statute analyzed in Pacific Gas and Electric Co.
Whereas the California statute was motivated by non-radiological concerns, Suffolk County's resolution clearly resolved that adequate emergency preparedness cannot be implemented through any radiological emergency plan; as such, its purpuse was to attempt to regulate radiological health and safety matters, and it was held by the Licensing Board to be preempted by the Atomic Cnergy Act. See Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit E LBP-83-22, 17 NRC 608, 640, aff'd on other grounds, CLI-83-13, 17 NRC 741 (1983); cf. United States v. City of New York, supra.
damages, in a tort action arising from the escape of plutonium from a federally-licensed nuclear facility, was not preempted by Congress --
notwithstanding the fact that such damage awards are intended to penalize violations of nuclear safety standards and the fact that such standards and penalties are a subject of federal regulation. Central to the Court's reasoning was the fact that Congress had not demonstrated an intent to preclude the use of such damage awards. Moreover, as noted by the Licensing Board; preemption in the sphere of nuclear power regulation is premised on the Commission's technical expertise in nuclear matters:
In analyzing the scope of preemption under the A"S.
the Supreme Court noted " Congress' decision to prohibit the States from regulating the safety aspects of nuclear development was premised on its belief thct the Commission was more qualified to determine what type of safety standards should be enacted in this complex area." Id. The Court found that Congress had decided teat " technical safety considerations" relating to the handling of hazardous nuclear materials were of such "com-plexity" that regulation of such materials should be reserved to the NRC. Id.
(PID at 907, citing Silkwood, supra, 464 U.S. at , 78 L. Ed. 2d at 454.
These decisions require that the Licensing Board's FID on Conten-tions 1-10 in the instant case be affirmed. Here, as noted by the Licensing Board, the State laws a; issue "were enacted pursuant to the
~
~
State's police powers, for purposes totally unrelated to nuclear safety concerns." (PIDat904). These laws deal with such matters as the regulation of traffic, the broadcasting of instructions for emergency actions, and the supervision and control of the public's emergency response. Such functions are traditionally performed by State and local
l I
l governments under their police powers, without regard to whether a particular emergency has a nuclear or non-nuclear origin. The funda-mental allocation of powers discussed in the New York Supreme Court's decision was extant long before LILC0 submitted an application to construct the Shoreham facility, and existed "for purposes totally unrelated to nuclear power or emergency planning." ( I_d . ) . Under the Supreme Court's decision in Pacific Gas and Electric Co., the Licensing Board correctly determined that these laws may not be preempted absent a
" clear and manifest" Congressional intent. E Moreover, as noted by the Board (PID at 907), rather than raising highly technical radiological issues for which the Comission's expertise is required, offsite emer-gency planning " raises a host of questions more akin to land use, in that local conditions and the capabilities of local agencies will determine how plans for evacuation, transportation, and relocation will be implemented. " Accordingly, because offsite emergency planning clearly requires the expertise of State and local governments in managing public
-27/ In pleadings filed before the Licensing Board, the Staff had rejected the Intervenors' " police powers" theory, and argued that LILC0's actions were only unlawful if they contravened specific statutory enactments. The Staff then found that the specific
. statutes cited in Contentions 1-10 precluded LILC0 from performing the functions described in Contentions 1-4, 9 and 10 (all of which dealt with traffic control or E0C/EPZ access measures), but that New York law did not prohibit LILC0 from performing the recommendation functions specified in Contentions 5-8. See "NRC Staff's Response Pursuant to the Licensing Board's Memorandum and Order of October 22, 1984," dated December 7, 1984, at 12-31. Notwithstanding our previcusly stated views, however, we recognize the State Supreme Court's greater expertise in matters of State law, and we accept that Court's views pending appellate review.
disaster responses, El the Court's decision in Silkwood instructs that State laws affecting offsite emergency planning should not be viewed to be preempted absent " clear and manifest" Congressional intent.
The Licensing Board carefully analyzed the legislative history of the Atomic Energy Act and other applicable enactments by Congress, and correctly found that Congress had not exhibited a " clear and manifest" purpose of reserving to the Comission exclusive authority to regulate in the sphere of offsite emergency planning. (PIDat904-06).
Neither the Atomic Energy Act nor the Energy Reorganization Act of 1974, 42 U.S.C. 5 5801 et seq., addresses the issue of emergency planning or the respective responsibilities and authorities of State and Federal governments to regulate in this area; El nor is there anything in the legislative history of those Acts which demonstrates a preemptive intent in this regard. While LILC0 asserts that such preemptive intent is 28/ While the Comission's technical expertise and guidance may well be ~
important to the safe resolution of nuclear plant emergencies and to the protection of the nublic health and safety, lead responsibility for evaluating offsite emergency preparedness has been assigned to the Federal Emergency Management Agency, in recognition of that agency's expertise in offsite disaster preparedness matters. See, e.g., 10 C.F.R. 9 50.47(a)(2); and " Memorandum of Understanding Between Federal Emergency Management Agency and Nuclear Regulatory Commission," 50 Fed. Reg. 15,485 (April 18, 1985). This assignment of responsibilities reflects the fact that in offsite emergency planning matters, the Commission's unique expertise in nuclear matters is only one of several factors to be considered.
2_9/ Although neither the Atomic Energy Act nor the Energy Reorganization Act explicitly addresses emergency planning, the Commission views its authority to regulate in this area as being founded upon the broad regulatory authority conferred by those Acts. See Statement of Consideration, " Emergency Planning," 45 Fed. Reg. E402, t
55,403-404 (1980).
demonstrated by recent NRC Authorization Acts (see, App. Br. at 24-32),32/
the Licensing Board correctly rejected that argument. As noted by the Board, these statutes permit the NRC to accept " utility plans" for review in the absence of State or local plans; however, they do not exclude State and local governments from submitting such plans in the first instance, or from performing an offsite emergency preparedness function.
(See PID at 904). While it is true that Congress exhibited an intent "to avoid penalizing an applicant for an operating license if a State or locality does not submit an emergency response plan to the NRC for review or if the submitted plan does not satisfy all the guidelines or rules" (App. Br. at 26), Congress did not address the subject of a plan's imple-mentation, and did not indicate that a nuclear plant should be permitted to operate where its emergency plan could not be implemented under State law.31/ Moreover, Congress was clearly willing to accept the continued performance by State and local governments of a role in the sphere of offsite emergency planning and preparedness, and recognized that State and local governments are normally responsible for developing offsite emergency plans for review by FEMA.
Rather than support LILC0's preemption argument, the Authorization Acts' legislative history demonstrates that Congress did not intend to
--30/ 1984-85 NRC Authorization Act, 5 108, Pub. L. No..98-553, 98 Stat.
2825 (1984); 1982/83 NRC Authorization Act, 6 5, Pub. L. No.97-415, 96 Stat. 2067 (1983); 1980 NRC Authorization Act, 6 109, Pub. L.
No.96-295, 94 Stat. 780 (1980).
--31/ See' H.R. Rep. No.98-103, Part 1, 98th Cong., 1st Sess. (May 11, 19B3), cited in App. Br. at 35.
preempt State and local governments in the area of offsite emergency planning. As noted by the Board (PID at 905-06), Congress recognized that the States might fail or refuse to submit a workable emergency plan, but rejected proposals that would have required the States to plan, or
~
that would have permitted the NRC to establish an interim plan for nuclear plants located in states without an acceptable plan. Also, the Board observed (PID at 905), that members of the Senate had acknowledged that the States were not required to engage in emergency planning, citing the following statement contained in a Senate committee report:
State and local compliance with requirements for emergency planning is now voluntary. A utility seeking to operate a nuclear plant must present its own emergency plan for the plant and must establish arrangements with appropriate State and local authorities for assistance, but the State and local officials responsible for emergency response plan-ningareungnocompulsiontodevelopanaccept-able plan On this basis, the Licensing Board properly concluded that Congress, in enacting the Authorization Acts, had "acknowledg[ed] the potential veto power of a State" but had declined to override that veto power by allowing the NRC to establish interim emergency plans in the absence of a State plan (PID at 906). E
-32/ Senate Comm. on Environment and Public Works, S. Rep. No. 176 on S.562, Pub. L.96-295, at 45 (May 15, 1979), 96th Cong., 2d Sess.
(1980), reprinted in U.S. Code Cong. & Ad. News 2257-58.
-33/ The remarks of Senator Simpson, Congressman Pashayan, and various othe." Congressmen cited by LILC0 (App. Br. at 27,29-31),were offered as their individual views and should not be viewed as representing the views of either their Comittees or the full (FOOTNOTE CONTINUED ON NEXT PAGE)
This view of the preemption doctrine's applicability to offsite emergency planning is fully consistent with the published views of the Commission. The Commission recognized that State and local governments perform an important role in the area of offsite emergency planning and, in adopting its emergency planning regulations, the Commission declined
- to assert that its rules possessed preemptive authority. The Commission noted that various comments on the draft rules (1) had encouraged the Comission to seek additional legislation to compel the States and local governments to develop plans; (2) had suggested that, "in the absence of additional statutory authority, the proposed rule frustrates Congressional intent to preempt State and local government veto power over nuclear power plant operation"; and (3) had asserted that the proposed rule was unfair to utilities in that the "NRC is seen as in effect giving State and local governments veto over the operation of nuclear plants." Statement of Consideration, " Emergency Planning",
supra, 45 Fed. Reg. at 55,404-405.
These comments withstanding, however, the Commission stated as follows:
The Comission recognizes there is a possibility that the operation of some reactors may be affected
. by this rule through inaction of State and local governments or an inability to comply with these rules. The Commission believes that the potential restriction of plant operation by State and local (F0OTNOTE CONTINUED FROM PREVIOUS PAGE)
Congress. As noted by the Supreme Court, "[w] hat motivates one legislator to vote for a statute is not necessarily what motivates scores of others to enact it." Pacific Gas and Electric Co., supra, 461 U.S. at 216.
officials is not significantly different in kind or effect from the means already available under existing law to prohibit reactor operation, such as zoning and land-use laws, certification of public convenience and necessity, State financial and rate considerations . . . and Federal environmental laws. The Comission notes, however, that such considerations generally relate to a one-time decision on siting, whereas this rule requires a periodic renewal of State and local comitments to emergency preparedness. . . . The Comission believes, based on the record created by the public workshop, that State and local officials as partners in this undertaking will endeavor to provide fully for public protection.
I_d., 45 Fed. Reg. at 55,404. E In light of this pronouncement by the Commission -- after passage of the 1980 Authorization Act -- the Licensing Board properly found that the Comission, itself, " believed Federal law did not preempt State and local regulation, but that
[offsite] emergency planning fell within the regulatory field left to the States." (PID at 906).
-34/ The testimony of then NRC Chairman Joseph M. Hendrie before the Subcomittee on Environment, Energy, and Natural Resources, House Comittee on Government Operations, is also instructive. As noted by the Licensing Board (PID at 905), Chairman Hendrie stated:
The question is whether the NRC ought to have authority under the law to require a State or locality to
[ participate in emergency planning] . . . I am not quite
. sure. I would prefer to have the Congress recognize the nature of the problem and then let you decide whether it is appropriate for the Federal Government to come down and preempt an area which previously has been regarded as a State and local prerogative.
Id., citing Emergency Planning Around Nuclear Power Plants:
Nuclear Regulatory Comission Oversight Hearings Before a Subcom.
of the Com. on Government Operations, ,96th Cong.,1st Sess. 534 (1979).
The Staff recognizes, of course, that the Comission's regulations requiring offsite emergency planning and preparedness are an " integral part" of the NRC's regulations, and were adopted for the purpose of protecting the public health and safety from potential radiological hazards associated with nuclear power plant operation (see App. Br.
at 16-18). However, while in other areas of Comission regulation this purpose would trigger application of the preemption doctrine, a different result obtains for offsite emergency planning, where the Comission and FEMA rely significantly upon State and local emergency planning and preparedness to provide the requisite " reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency." Thus, 10 C.F.R. 9 50.47(a) normally requires consideration as to whether State and local emergency plans "are adequate and whether there is reasonable assurance that they can be implemented." E! In addition, State and local officials are normally expected to perform
-35/ See also, Lont Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-03-13, 17 NFC 741 (1983). The Staff disagrees with LILCO's assertion that the PID is inconsistent with the Commission's decision in CLI-83-13, which had permitted the Board to consider LILCO's plan (see App. Br. at 7-9). In CLI-83-13, the Comission determined only that it was authorized and obligated "to at least consider any proffered utility . . . plan," and it specifically
. declined to reach the federal preemption issue. CLI-83-13, su ra, 17 NRC at 743. The Comission clearly stated that LILCO wou ear the burden of showing that its plan can meet all applicable regulatory standards," and it " express [ed] no opinion at this juncture whether it will be possible for the utility to meet this burden." (Id.). Moreover, the Comission did not express any view as to whether a utility's offsite plan could be found to be adequate in the absence of State and local implementation. See generally CLI-83-13, supra; and see id.,17 NRC at 744 (Comissioner Gilinsky's Separate Views).
--a - .J .- --.e aw , ,
certain functions under 10 C.F.R. 5 50.47(b) and 10 C.F.R. Part 50, l Appendix E. 36_/
In light of these principles, LILCO's assertion that Congress left no room for the States to regulate in the field of offsite emergency
- planning and preparedness flies in the face of the clear recognition, by both Congress and the Commission, that the States perform an important role in this area. EI
. B. There Is No " Actual Conflict" Between the Federal and State Laws.
1 As to the existence of an " actual conflict" between State and
- Federal laws, the Licensing Board concluded that there was no " physical impossibility" of complying with both laws, and that State law did not j stand as "an obstacle to the accomplishment and execution of the full i purposes and objectives of Congress." (PID at 908-09, citing
- 36/ See Statement of Consideration, supra, 45 Fed. Reg. at 55,404.
, 3_7/
7 The Staff disagrees with LILCO's assertion that the PID renders it
! impossible for _any utility plan to be accepted and that the PID
" reads ' utility plans' out of the law" in derogation of the recent liRC Authorization Acts. (App.Br.at4,9). The NRC Authorization
~
Acts only go so far as to permit the NRC to consider a utility's
. offsite plan. There is no indication of Congressional intent that i the utility's implementation of such a plan was to be approved in all cases, in the absence of State or county participation in such implementation. Moreover, the Licensing Board's PID does not preclude utility plans from being accepted in other cases, where (1) the State and local governments commit to implementing the utility's plan, (2) State law does not prohibit a utility from implementing an offsite plan, or (3) only certain functions are designated to be
- implemented by the utility, and an adequate plan could be imple-
' mented without the implementation of those particular functions.
,-e, . - , ~ ,-. ,.- ..v,.- ,-,,.-rm.- __m7.mm.n, ,wxyg,-,-._,_e_--,c, _ , , - - ,,,wm,. -m_--m- 7-- , . , ,n-.w._m.w.-r.ee--- ,-. ~ w-,_,---
Pacific Gas and Electric Co., supra, 461 U.S. at 204). E First, the Licensing Board found that federal law did not require LILCO to perform the functions identified in Contentions 1-10, observing that one of those functions (activation of the public notification system) was actually reserved to governmental authorities under 10 C.F.R. Part 50, Appendix E,
{ IV.D.3 (PID at 908). Further, the Board found that "LILC0 can point to no language by which the federal government compels LILCO to do any act or canpels States and local governments to participate in the development .
of e nergency plans" (Id_.). The Board continued as follows (Id.):
While it is true that LILC0 cannot obtain a license without an adequate emergency plan, and that LILC0 is forbidden by State and local law from performing certain acts required to make the plan adequate, nowhere does the federal government mandate that LILC0 perform these functions. We are aware of the dilemma this poses for LILCO, but the issues surrounding the State's refusal to act pursuant to its police powers are not before this Board. We have no authority to fashion a remedy for LILC0's difficulties and find only that there is no " actual conflict" as that term has been used by the Supreme Court, This determination is manifestly correct. While LILC0 contends that its license may be denied absent a finding of " actual conflict" and
-38/ A determination as to whether State and Federal laws actually conflict requires an interpretation of both the State and federal
. statutes:
Deciding whether a state statute is in conflict with a federal statute and hence invalid under the Supremacy Clause is essentially a two-step process of first ascertaining the construction of the two statutes and then determining the constitutional question whether they are in conflict. . . .
Perez v. Campbell, 402 U.S. 637, 644 (1971).
application of the preemption doctrine, it does not follow that the federal government should intrude into areas historically reserved to the States merely because, absent such intrusion, LILC0's license application might be denied. Indeed, LILC0's argument would require that regardless of how extreme the provisions in its emergency plan may be, and regardless of which state laws might be violated thereby, those laws must be preempted in order to assure that LILC0 receive its license. El No such open-ended preemption could reasonably have been intended by Congress. S LILC0's assertion that New York's laws stand as "an obstacle to the accomplishment of the full purposes and objectives of Congress" was also properly rejected by the Licensing Board. Accepting LILC0's assertion that Congress had the objectives of (1) encouraging nuclear power, and (2) assuring the existence of effective emergency plans and uniform i
standards for emergency planning, the Licensing Board found that other objectives must be considered in deciding the preemption issue. The Board cited the Supreme Court's statement in Silkwood, supra, as follows:
3_9/ LILC0's plan does not appear to contain such ominous provisions as the use of guns by traffic guards or access control personnel, or forcible detainer and arrest of looters or persons who fail to comply with LILC0's traffic directions. Nonetheless, if LILC0 had included such provisions in its Transition Plan, LILCO's preemption argument would require that state laws affecting such activities be preempted, in order to enable LILC0 to obtain its license.
-40/ LILCO asserts that it cannot comply with both federal and State law without abandoning its license application, and that this dilema constitutes " physical impossibility." (App. Br. at 36-37). LILCO's argument is misplaced, however, in that Federal law does not require or compel a utility to build or operate a nuclear plant. See Pacific Gas and Electric Co., supra, T61 U.S. at 218-19.
1 l
"[t]here is little doubt that a primary purpose of the Atomic Energy Act was, and continues to be, the promotion of nuclear power," [75 L.Ed. 2d at 775.]
However, we also observed that "the promotion of nuclear power is not to be accomplished 'at all costs'." Qd.at776-77.]
. The Licensing Board noted the importance of maintaining proper Federal-State relations, and concluded as follows:
We must bear in mind that the cost to our federal system of transferring a State's historic police powers to a private entity. We find no evidence to suggest that Congress ever intended to allow a private utility to exercise powers that have tradi-tionally belonged to the States. We cannot believe that so fundamental a shift in the structure of Federal-State relations could be accomplished by the NRC Authorization Act provision which merely allows the NRC to consider the adequacy of a utility-sponsored emergency plan. Indeed, Congress would not even enact a provision requiring the States to perform emergency planning or placing responsibility for emergency planning with the federal government. The Supremacy Clause is not a basis for accomplishing that which the Congress itself chose not to accomplish. There is no precedent for using the Supremacy Clause to transfer authority from government to a private entity. We find LILCO's argument that the laws
- cited in Contentions 1-10 are preempted to be without merit.
(PID at 909; footnote omitted).
This determination, in our view, is correct. The Licensing Board
. was properly sensitive to the importance of preserving a balance in Federal-State relations, and gave proper deference to the principle that the States are not to be preempted from acting in areas within their historic police powers absent a " clear and manifest" Congressional intent
that.such' preemption occur. SI LILCO has failed to demonstrate the existence of such a " clear and manifest" intent and, accordingly, the Licensing Board's rejection of LILCO's preemption argument should be affirmed. S/
41/ LILCO now argues that it does not propose a " fundamental shift in
~
the structure of federal-state relations," because its offsite emergency plan would only be used in the event of an accident which "everyone must admit is extremely rare" (App. Br. at 39-40). This argument misses the point. The " shift in federal-state relations" discussed by the Board would be occasioned by the federal preemption of State laws,.which the State Supreme Court found prohibit the implementation of LILCO's offsite plan. Although LILCO may well never experience an accident that requires its offsite plan to be implemented, if such an event were to occur, under the New York Supreme Court's analysis LILC0's implementation of its offsite plan would indeed constitute a fundamental shift in federal-state relations.
M/ In their brief in opposition to LILCO's appeal, Suffolk County and
- the State of New York refer to County Executive Order 1985-1 (May 30, 1985), which had directed County employees "to review, test
. and evaluate LILCO's Transition Plan" (Id. at 47). While the lawful scope of any such exercise is not an issue pending before the Appeal Board, it should be noted that the Staff recently iequested that FEMA schedule an exercise for Shoreham, acting at the Commission's suggestion that there be "as full an exercise of the LILCO plan as is feasible and lawful at the present time." See Memorandum from Samuel J. Chilk to William J. Dircks, dated June C 1985, attached to Memorandum from William J. Dircks to Samuel J. Chilk, re
" Scheduling of Emergency Plan Exercise for Shoreham," dated June 20, 1985. The Staff's position in the text above, concerning the correctness of the Board's decision, is not inconsistent with the scheduling of such an exercise as may be " feasible and lawful at the present time."
_1b.
II. IN VIEW 0F THE PRESENTLY UNDEVELOPED RECORD, THE LICENSING BOARD PROPERLY REJECTED LILC0'S ASSERTION THAT SUFFOLK COUNTY AND THE STATE OF NEW YORK WOULD RESPOND IN THE EVENT OF AN ACTUAL EMERGENCY, THUS CURING LILC0'S LACK OF LEGAL AUTHORITY (" REALISM").
In addition to arguing that State and local laws are preempted insofar as they impede implementation of its offsite plan, LILC0 has asserted that Contentions 1-2 and 4-10 SI should be resolved on grounds of " realism" -- i.e., LILC0 asserts that the State and County would respond in the event of a real emergency, thus curing LILC0's lack of legal authority. In support of this assertion, before the Licensing 30ard LILCO cited an extra-record pronouncement made by Governor Cuomo of New York, in a press release, that "if the plant were to be operated and a misadventure were to occur, both the State and County would help to the extent possible." (See PID at 910). Presumably, the Governor would remove any legal impediment to LILCO's actions under its offsite plan either by implementing the plan using State resources, or by authorizing or " deputizing" LILC0 to perform those functions. (See PID at 910,911).
The Licensing Board properly rejected LILCO's " realism" argument.
The Board cited the New York State Supreme Court's decision in Cuomo v.
LILCO, supra, which held that LILC0 could not be deputized by the State and County in the event of an emergency, to act in the manner contemplated by LILCO:
"The Court, no matter how many times it has read and re-read Article 2B [The Executive Law] could not find any authorization for LILCO, expressed or M/ LILC0 recognizes that this argument does not apply to Contention 3, concerning the posting of " trailblazer" signs in advance of an actual emergency (see PID at 909-10).
implied, to exercise the State's police powers in emergency cluded, " t]he[ situations." The Court State and County ultimately would con-be breaking their ' fiduciary duty' to protect the welfare of its citizens if they permitted a private corpora-tion to usurp the police powers which were entrusted solely to them by the community."
(PID at 911, citing Cuomo v. LILCO, supra, slip op, at 18). The Board concluded that this determination by the State Supreme Court " disposes" of the realism argument (I_d.):
The Supreme Court interpretation of the New York State law, which we have accepted, disposes of the realism argument. The realism argument, predicated upon LILCO being authorized to participate in its proposed emergency response plan, fails because Applicant cannot be delegated the authority to p;rform the functions enumerated in Contentions 1-10.
Further, the Licensing Board correctly rejected the " realism" argument on the grounds that the Commission's emergency planning regulations -- developed as a result of the uncoordinated response to the TMI accident -- require " comprehensive, cooperative, and detailed preplanning and ability by the concerned entities . . . including the various governmental groups . . . to mount a very highly coordinated effort." (PID at 911). In contrast to the coordinated and preplanned effort contemplated by regulation, however, the Board found "[t]here is nothing on which to base a finding that there will be a cooperative, coordinated effort between the government and the utility to prepare for and implement the existing emergency response plan." (Id_.at912).
The Licensing Board has resolved this issue correctly. First, the Board properly deferred to the New York Supreme Court's ruling, in light of that Court's greater expertise in matters of New York law, that LILC0
._._p._-
could not be deputized to implement its offsite plan. Further, the Board correctly determined that the nature of the State and County's response, and the effect that response would have on the overall offsite emergency response, simply could not be known on the basis of the present record.
As the Staff indicated in its filings before the Licensing Board EI --
and as LILC0 has conceded $/ -- the present evidentiary record does not indicate how the State and County would respond in an emergency, or what effect that response might have upon the overall implementation of LILC0's -
offsite plan. 5/ As the Licensing Board observed, "[a]lthough [the State and County] may well respond in a planned manner insofar as they do respond, there is no reasonable assurance of record that the response 4 will be in cooperation and coordination with Applicant, which is what is 44/ See "NRC Staff's Answer in Opposition to 'LILC0's Motion for Summary I lWsposition of Contentions 1-10 (The ' Legal Authority' Issues)", '
dated October 4,1984, at 27-28; and "NRC Staff's Response Pursuant to the Licensing Board's Memorandum and Order of October 22, 1984,"
dated December 7, 1984, at 33.
-45/ LILC0 conceded before the Licensing Board that the " issue of how the State and County would respond, now raised by the Board sua sponte
[in its Ordor of October 22,1984], is an entirely new issue that has not been addressed in testimony." See LILC0's Brief on Contentions 1-10," dated November 19,1W4, at 42.
46/ LILCO argues that the issue of " coordination" is "a new factual issue," first raised by the Board in its PID, and that this issue is not encompassed within Contentions 1-10 (App. Br. at 47). How-i ever, LILC0 itself first raised a factual issue in this regard,
,by seeking summary disposition of Contentions 1-10 on grounds of
" realism". LILC0 should not now be heard to complain that the Licensing Board resolved LILC0's untimely factual issue based upon its own analysis the facts which it deemed to be relevant to LILC0's
" realism" argument.
s 1 -
34 -
contemplated for an adequate plan." (PID at 912, emphasis added). $
Nor is this conclusion altered by the Comission's Order of June 20, l 1985, declining to require the supplementation of Shoreham's environmental j impact statement, to consider the costs and benefits of low power opera-tion prior to authorizing such operation. Long Island Lighting Co.
(Shoreham Nuclear Power Station), CLI-85-12, 21 NRC (June 20,1985),
j stay denied per curiam sub nom. Cuomo v. NRC, No. 85-1042 (D.C. Cir.,
July 3, 1985). There, the Comission observed as follows (I_d., slip op.
at4):
4 We note that our Licensing Board in its decision of April 17, 1985 has found that an adequate emergency plan is in fact achievable if the State and county participate in emergency planning, as all other local -
- and state jurisdictions have done when so called upon. . . . Congress has entrusted the protection
< of public health and safety in matters concerning nuclear power to the Comission, not to Suffolk County or New York State [ citing Pacific Gas and Electric Co.,
supra, 461 U.S. at 205]. Accordingly, we believe
, that the County and the State must recognize that when a health and safety issue has been fully liti-gated before the Comission, the Comission's final judgment, subject to judicial review, must be the
. controlling determination, even if some continue to disagree with it.
Thus, while we express no opinion concerning
- the Board's decision while it remains under 5
47/ LILCO has not cited the Governor's press release in its brief on appeal; instead, LILCO now claims it is the " undeniable truth" that '
the State and County would respond in an emergency, and that a
" presumption" should be made that the State and County will respond
- in accordance with their legal duties (App. Br. at 45-46). This argument misses the point. As the Licensing Board observed, even if
' the State and County were to respond in a real emergency, "there is no reasonable assurance of record that the response will be in cooperation and coordination with Applicant" (PID at 912). See discussion infra, at 44-46.
j-1 I
4
_ _ . . _ . . _ . , . . _ _ , , . . . . . . . , , , _ _ . _ , _ . . , , _ . . , _ _ ,_,,..___.__,_,--,~,,.._,..,.___,,_-_..____._~,m,_.
administrative review, we are confident that if the Comission upholds the Licensing Board's finding that an adequate emergency plan is feasible with state and local )articipation, the State and County will accede to t1at judgment and will provide the participation needed to make the plan successful.
In short, we shall not take as an element of uncer-
, tainty in the eventual full-power operation of Shoreham the possibility that either the State or the County will refuse to cooperate with LILC0 on the basis of their own conception of what radio-logical public health and safety requires, rather than on the findings of the Comission.
In our view, this statement is consistent with the Comission's earlier declaration, in its Statement of Consideration accompanying the emergency planning regulations, that "[t]he Comission believes, based on the record created by the public workshop, that State and local officials as partners in this undertaking will endeavor to provide fully for public protection." See discussion supra, at 23-24. The Commission's views in CLI-85-12 are not based upon facts of record in this proceeding, and do not alter the Licensing Board's pivotal findings that: (1) the State and County are barred under New York law from deputizing LILC0 to implement its offsite plan, and (2) there is no evidence of record as to how the State and County might respond in an emergency or what effect their ,
response might have upon an overall protective response. Accordingly,
- the Comission's views in CLI-85-12 do not require that the Licensing Board's conclusion on LILC0's " realism" argument be reversed.
For the reasons set forth above, the Board properly rejected LILC0's
" realism" argument, E and decided Contentions 1-2 and 4-10 in favor of Intervenors. This determination should be affirmed.
III. THE LICENSING BOARD PROPERLY REJECTED LILC0'S " IMMATERIALITY" ARGUMENT AS TO FUNCTIONS IDENTIFIED IN CONTENTIONS 1-4 AND 9-10, WHERE THOSE FUNCTIONS WERE INCORPORATED IN LILC0'S PLAN AS A MEANS OF COMPLYING WITH THE COMMISSION'S EMERGENCY PLANNING REGULATIONS AND REGULATORY GUIDANCE.
In moving for summary disposition before the Licensing Board, LILC0 asserted, for the first time, what it referred to as an " immateriality" argument. Under this theory, LILC0 contended that the actions specified in Contentions 1-4 and 9-10 (relating to traffic control and EPZ/E0C access control) are not required to provide " reasonable assurance that adequate protective measures can and will be taken in the event of an emergency." According to LILCO, an " uncontrolled evacuation" would result in only slightly greater evacuation times than a controlled
-48/ The Board also could have rejected LILC0's " realism" argument on procedural grounds. The Board and parties had previously construed the contentions as raising questions of law rather than questions of fact; LILC0's untimely attempt to raise a factual basis for resolv-
- ing the contentions to be considered, would have required that the other parties be afforded an opportunity to rebut LILC0's position with their own evidentiary presentations. See Public Service Co.
of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2),
XEAT-T!i!f- 7 NRC 179,186 (1978), citing Niagara Mohawk Power Co.
(Nine Mile Point Nuclear Station, Unit 2), ALAB-264, 1 NRC 347, 353-55 (1977) ("where a party prosecutes its case on one theory, a trial board cannot decide it on another without having given the opponents a fair opportunity to rebut the new theory with argument andevidence."). Accord, Pennsylvania Power and Light Co. (Susque-hanna Steam Electric Station, Units 1 and 2), LBP-82-30, 15 NRC 771, 781-82(1982).
h i
i evacuation, S / and would take place in an amount of time comparable to evacuation times for other nuclear plants (ge PID at 913). In other words, LILC0 contended that while these actions would improve evacuation times, their absence would not preclude evacuation from being considered as an adequate protective response (Id.).
- The Licensing' Board recognized that the functions specified in Con-tentions 1-4, 9 and 10, are not specifically listed as requirements in either 10 C.F.R. f 50.47 or 10 C.F.R. Part 50, Appendix E; at the same time, the Board found that these measures provide a means of satisfying
- applicable Commission regulations (PID at 917). Thus, 10 C.F.R.
t 6 50.47(a)(1) requires that there be " reasonable assurance that adequate i .
protective measures can and will be taken in the event of a radiological emergency." Also, 10 C.F.R. 9 50.47(b)(10) requires, in part, that "a
- j. range of protective actions be developed for the plume exposure pathway
, EPZ," and that " guidelines for the choice of protective actions, consistent t
49/ LILCO's evidence, admitted for purposes of litigating other conten-
. tions, indicated that an uncontrolled evacuation (without traffic i guides but with route compliance) would increase evacuation times by l 1 hour1.157407e-5 days <br />2.777778e-4 hours <br />1.653439e-6 weeks <br />3.805e-7 months <br />, 35 minutes under normal conditions and by 3 hours3.472222e-5 days <br />8.333333e-4 hours <br />4.960317e-6 weeks <br />1.1415e-6 months <br /> in i inclement weather (see PID at 792). Although the Staff and FEMA h found LILCO's traffTc and time estimate model to be conceptually
. valid.and in compliance with regulatory guidance found in NUREG-0654, Appendix 4 (see PID at 783), we did not have occasion to consider, and expressed no view, as to whether an uncontrolled
, evacuation would satisfy Commission regulations and regulatory guidance.
i i
4
with Federal guidance, are developed and in place." EI Similarly, as noted by the Licensing Board (PID at 916-17), federal guidance provides that:
the purpose of emergency planning is to achieve
. dose savings to the general public; . . . the emergency response plans should be framed to cope with a spectrum of accident possibilities including the worst accidents; and that there is no standard time required to be met for evacuation in a radiological emergency.
The Licensing Board evaluated these regulatory pronouncements and found that an uncontrolled evacuation of the Shoreham EPZ would reduce the range of protective actions available to the public, would limit the dose savings which might otherwise be achieved, and would result in the framing of emergency response plans that are capable of coping with a smaller spectrum of accident possibilities (PID at 917).
In Staff's view, LILCO's " immateriality" argument was properly rejected. LILCO had identified these functions as material elements of its Transition Plan, and they were considared by FEMA and the Staff in reviewing the overall adequacy of LILCO's offsite emergency plan. In light of the State Supreme Court's determination that these functions are M/ Regulatory guidance with respect to 10 C.F.C. 6 50.47 is contained,
. inter alia, in NUREG-0654, FEMA-REP-1, Rev.1, " Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants" (November 1980). Only one of the functions listed in Contentions 1-4, 9 and 10 (EPZ perimeter access control) appears to be mentioned specifically in NUREG-0654 (see id., 9 II.J.10). However, that document is intended to be used as a general guide by reviewers in determining the adequacy of offsite emergency plans; it does not purport to delineate the full range of emergency actions that must be included in an emergency plan.
prohibited to LILC0 under State and local law, LILC0's Transition Plan, as submitted, could not lawfully be implemented.
I The parties have had neither the occassion nor an opportunity to present evidence as to whether an " uncontrolled evacuation" would provide an adequate protective response in the event of an emergency in compliance with Commission regulations. El Accordingly, the Licensing Board's rejection of LILC0's last-minute attempt to obtain a ruling, on inherently factual grounds, that an uncontrolled evacuation would provide an adequate and effective protective response, should be affirmed. S/ i l
I l
51/ As noted above, Contentions 1-10 had previously been construed by the Board and parties as raising solely questions of law and all parties, including LILCO, had agreed that evidentiary hearings on these contentions were not required. See discussion supra, at 4-5 and 36. The Staff and FEMA have evaluated only the specific plan submitted by LILC0 for review (which included the functions now asserted by LILCO to be " immaterial"), and have not heretofore reached conclusions as to whether an uncontrolled evacuation for Shoreham would be acceptable. Nonetheless, we cannot lightly dis-miss the Licensing Board's further conclusion that an uncontrolled
. evacuation at Shoreham would be unacceptable, given the population ,
density and geographical characteristics of Shoreham's 10-mile EPZ.
52/ LILC0 asserts that its Transition Plan should have been approved by the Board under 10 C.F.R. 6 50.47(c)(1), as an " interim compensating action," and it urges that the lack of governmental participation is not a "significant" deficiency (App. Br. at 50-52). LILC0 further asserts that "[a]t issue here is not a request for a waiver of the
~
rules, but for an application of them." (Id. at 51). These assertions are without merit. LILC0 has faTied to demonstrate that its Transition Plan can be implemented under State law, and thus there is no reason to believe that it could operate as a
" compensating action"; nor, for that matter, has LILC0 demonstrated that its Transition Plan is " interim" in nature, or that the County and State's refusal to implement its plan is " insignificant".
Finally, LILCO's request for an application of 10 C.F.R. 6 50.47(c) does indeed appear to be a request for a waiver or exemption from the Commission's other emergency planning regulations. Cf.
Philadelphia Electric Co. (Limerick Generating, Station, Units 1 and 2), ALAB-809, 21 NRC (June 17, 1985).
IV. THE LICENSING BOARD ERRED IN FINDING THAT LILC0 EMPLOYEES WHO WOULD PERFORM A COMMAND AND CONTROL FUNCTION LACK SUFFICIENT INDEPEN-DENCE FROM LILC0 TO MAINTAIN THEIR INDEPENDENCE AND OBJECTIVITY IN AN EMERGENCY (CONTENTION 11).
Contention 11 asserts that LILC0 employees who would occupy corr.nand and control positions in the event of an emergency are not sufficiently o independent of LILCO, and that they may experience a conflict between LILCO't. financial and institutional interests and the public interest.
According to Intervenors, this lack of independence could hamper the individuals' ability to act in the public interest, could lead them to minimize the public's perception of the danger, and could cause them to fail to recommend appropriate protective action promptly.
The Licensing Board found that the Intervenors' evidence on this issue outweighed the evidence adduced by LILC0 and the Staff (PID at 605). In this regard, the Board stated, "[i]n view of the very important ties of livelihood and company loyalty which normally exist . . . between upper-level management and a corporation, we cannot find that the LERO decisionmakersaretrulyindependentofLILC0"([d.at682). Rather, the Board found that "[p]ersons holding important positions in a nuclear utility's day-to-day organization will experience strong forces urging
. themtointerpretanyambiguoussituationinthecompany'sfavor"(M.at 605). Further, the Board observed that "[w]ith the important matters of livelihood and career deeply bound to the company, utility executives will, we fear, be much more subject to conflict of interest than would local officials, whose interests clearly parallel those of the populace, and whose accountability is clearly to the public" (I_d. at 686). On this basis,theBoardfoundinfavorofIntervenorsonContention11(M.):
We conclude that the Intervenors have, indeed, i carried the day on Contention 11. Applicant has j not met the burden of demonstrating that the ,
employees in command and control positions in LERO '
are sufficiently independent from LILC0 to maintain independence and objectivity. In ambiguous acci-dent situations, their loyalties, personal
. interests, and career inclinations would dispose them to minimize their estimate of the possible
, hazard and might cause delay in or omission of proper public notification and protective actions.
Applicant has not, for these reasons, provided adequate assurance that these persons would make correct and appropriate comand and control decisions.
The Staff submits that the Licensing Board's findings in this regard were erroneous for two fundamental reasons. El First, the Licensing Board altogether ignored the fact that a utility's executives are normally required to perform other vitally important roles in notifying the public of the existence of an emergency. The quintessential determination as to whether and when to alert public officials of an emergency situation -- a necessary first step which must take place before the governmental officials can even consider alerting the public
-- rests in the utility's hands. El See 10 C.F.R. 9 50.47(b)(5). More-over, utility personnel are entirely responsible for determining what information is presented to the governmental officials. The importance
-53/ In addition, the Staff has reviewed LILCO's brief on appeal of this issue (App. Br. at 53-65), and we generally concur with the views expressed therein. We believe that LILC0 has amply demonstrated that the Licensing Board's dscision on Contention 11 is inconsistent with the weight of the evidence.
-54/ While radiation readings and other indicia of an emergency situation are not " ambiguous" (Tr. 15,209, 15,228 (Sears)), the utility employee remains responsible for communicating that information in a prompt and appropriate manner to offsite governmental authorities.
of these functions, performed by utility personnel at Shoreham and at every other commercial nuclear plant, was emphasized by Staff witness
. Schwartz, as follows:
[I]f a potential problem situation were to occur at
. a nuclear power plant, the appropriate protective actions would be recommended and implemented
, whether or not the command and control positions were filled by trained utility or offsite personnel
.... No matter who makes the offsite command and control decisions, these decisions will depend to a large extent on information about the status 4
of the power plant and potential radioactive releases. This will be supplied by onsite utility employees according to the emergency plan and pro-cedures. It is the information and recommendations provided by the onsite personnel that will affect offsite decisionmaking most significantly.
, Schwartz, ff Tr. 15,143, at 4. The Licensing Board altogether ignored thesh facts, 5[/ and failed to see the illogic of its decision: if a
" con *flict of interest" does not preclude utility executives from being relied upon to provide public officials with timely and accurate infor-mation -- thereby triggering the chain of events by which the public may be alerted of an emergency -- there is likewise no reason to fear that a
--55/ The Board also failed to recognize that the utility's personnel are I required to be present at the E0C during an emergency, and are !
largely relied upon by governmental officials for their recommenda- l tions as to when, and which, protective responses should be I undertaken. i l
a conflict of interest would preclude those executives from alerting the public directly, if and when it becomes necessary to do so. E Secondly, because, as the Staff believes (see, ea, Tr.15,223),
structural independence from a utility is not strictly required by reg-ulation, a " conflict of interest" would present a problem only if the a individuals in question, on a personal basis, are insufficiently trained or fail to possess sufficient independence of thought and objectivity to act appropriately in an emergency. In this regard, the Licensing Board 4 gave insufficient consideration to the Staff's testimony that the most important criteria are whether an individual in an emergency situation places " overriding emphasis . . . on safety interests" (Schwartz, ff.
Tr. 15,143, at 2), and whether the individual possesses an appropriate sense of " responsibility" with respect to his role in responding to an emergency (Tr. 15,211-212,15,215,15,250(Sears)). Moreover, the Board gave insufficient consideration to the fact that Staff witness Sears
. interviewed the particular individuals who had been designated to perform the command and control functions for LERO, and was satisfied that they possess sufficient understanding of their responsibilities to assure that their actions would be unaffected by any " conflict of interest." E_. g . ,
56/ The Licensing Board's determination, as a matter of law, that the Commission's regulations are " structured" so as "to assure indepen-dence in emergency decisions" is unsupported. Other valid reasons why the Commission's regulations allocate offsite responsibilities to State and local governmental authorities were not considered by the Board. For instance, State and local governments normally possess greater experience and expertise in managing public disas-ters; similarly, those entities normally already possess the necessary manpower and infrastructure to coordinate a large-scale public response.
Sears, ff. Tr. 15,143, at 2, 5-7. E l The Licensing Board's decision that a conflict of interest would preclude these individuals from main-taining their independence and objectivity such that they would make correct and appropriate decisions in an emergency, is inconsistent with the weight of the evidence, and should be reversed.
V. THE LICENSING BOARD'S DETERMINATION THAT THERE IS NO NEW YORK STATE PLAN APPLICABLE TO THE SH0REHAM FACILITY, AND THAT NO PROVISIONS EXIST FOR A COORDINATED RESPONSE BY THE STATE IN THE EVENT OF AN EMERGENCY (CONTENTION 92), SHOULD BE AFFIRMED.
Contention 92 asserts that there is no New York State emergency plan that is site-specific for Shoreham, and that LILCO's offsite plan fails to provide for coordination of LILC0's and the State's emerg'ency responses, assuming a State response would occur. 5_8/
E / The Licensing Board appears to have misapprehended much of the essence of the Staff's testimony with respect to Contention 11. For instance, the Staff did not urge that monitoring by the NRC is sufficient to ensure that individuals will respond appropriately in an emergency (see PID at 685). Rather, such Staff oversight was indicated to be but one additional factor to be considered, once it has been determined that appropriate preplanning had taken place in accordance with Commission regulations, and that adequately trained, and responsible individuals would occupy coninand and control positions. See, ed ., Schwartz, ff. Tr. 15,143, at 2, 4; Tr. 15,211-2Tr(Sears); Tr. 15,222-223, 15,230-231, 15,241-248 (Schwartz).
-58/ Before the Licensing Board, the Staff had recommended that the Board find only that LILCO's plan provides an opportunity for State parti-cipation, based on a narrow reading of the Contention. (Conten-tion 92 asserts, in part, "the LILC0 Plan fails to provide for coordination of LILCO's emergency response with that of the State of New York. . . .") The Licensing Board eschewed making the limited findings recommended by the Staff and decided the Contention in Intervenors' favor, based on a broader reading of the contention.
However, the Board's decision is supported by the administrative record and, in our view, is not erroneous.
I
It is undeniable, as the Licensing Board found, that no site-specific emergency plans for Shoreham exist in the New York State plan (see PID at 882). True, LILC0's offsite plan permits participation by New York State and local officials, and an infrastructure has been estab-lished by LILC0 to facilitate such participation (e_.3., communication lines, working space for governmental officials, and procedures for conferring with such officials have been established ). However, as the Board found (Id. at 883) there is no evidence in the record to permit a finding that New York State would participate in an actual emergency in an effective and coordinated manner, as contemplated by the Commission's regulations and guidance. (I_d. at 883, 885). El In this regard, the Board cited the guidance of NUREG-0654, that:
[A]n integrated approach to the development of response plans to radiological hazards is most likely to provide the best protection of health and safety of the public. NRC and FEMA recognize that plans of licensees, state and local governments should not be developed in a vacuum or in isolation from one another. Should an accident occur, the public can best be protected when the response by all parties is fully integrated.
(PID at 884, citing NUREG-0654, at 23-24).
---59/ See discussion supra, at 31-34, with respect to the lack of assur-ance provided by Governor Cuomo's press release, cited by LILC0 in support of its claim that the State and County would respond in a real emergency.
In light of the lack of evidence that the State would respond to an emergency in a manner coordinated with LILC0's emergency response, E the Board properly concluded that LILC0 had failed to demonstrate
" reasonable assurance" that an integrated or coordinated emergency response that included the State would occur. (Id.at883,884).
Accordingly, the Board's resolution of this contention in favor of Intervenors should be affirmed.
CONCLUSION For the reasons set forth above, the Staff submits that the Licensing Board's decision as to Contentions 1-10 (the legal authority issues) and Contention 92 (the State plan) should be affirmed, but that the Board's decision on Contention 11 (conflict of interest) is in error and should be reversed.
Respectfully submitted, k k Sherwin E. Turk Deputy Assistant Chief Hearing Counsel Dated at Bethesda, Maryland this 19th day of July,1985 6_0/ LILC0 cites the testimony of several of its employees and witnesses, s
who testified that they believed the State and County would cooper-atewithLILCO(App.Br.at68-69). In our view, the Licensing Board properly struck various speculative portions of that testimony, and accorded an appropriate amount of weight to the remainder of that testimony. The record does not indicate that LILC0's witnesses based their opinions on any statements which had been made to them by government officials (while hearsay, such testimony would have been admissible in an administrative hearing);
nor did LILC0's witnesses appear to be particularly qualified to render such testimony. LILC0's arguments in this regard should be rejected.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of -
)
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-0L-3 (Shoreham Nuclear Power Station, Unit 1) )
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S BRIEF IN RESPONSE TO LONG ISLAND LIGHTING COMPANY'S APPEAL FROM THE PARTIAL INITIAL DECISION ON EMERGENCY PLANNING OF APRIL 17, 1985" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Comission's internal mail system, or as indicated by a double asterisk, by Federal Express, this 19th day of July, 1985.
Alan S. Rosenthal, Esq., Chairman
- Gary J. Edles, Esq.*
Atomic Safety and Licensing Appeal Atomic Safety and Licensing Appeal Board Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Comission Washington, D.C. 20555 Washington, D.C. 20555 Howard A. Wilber* Gerald C. Crotty, Esq.
Atomic Safety and Licensing Appeal Ben Wiles, Esq.
Board Counsel to the Governor U.S. Nuclear Regulatory Commission Executive Chamber Washington, D.C. 20555 State Capitol Albany, NY 12224 Morton B. Margulies, Chairman
- Fabian G. Palomino, Esq.
Administrative Judge Special Counsel to the Governor Atomic Safety and Licensing Board Executive Chamber U.S. Nuclear Regulatory Commission State Capitol Washington, D.C. 20555 Albany, NY 12224 Dr. Jerry R. Kline* Jonathan D. Feinberg, Esq.
Administrative Judge New York State Department of Atomic Safety and Licensing Board Public Service U.S. Nuclear Regulatory Commission Three Empire State Plaza Washington, D.C. 20555 Albany, NY 12223
Donald P. Irwin, Esq.**
! Mr. Frederick J. Shon* Hunton & Williams Administrative Judge 707 East Main Street Atomic Safety and Licensing Board Richmond, VA 23212 U.S. Nuclear Regulatory Comission Washington, D.C. 20555 Herbert H. Brown, Esq.
Stephen B. Latham, Esq. -
Lawrence Coe Lanpher, Esq John F. Shea, III, Esq. Karla J. Letsche, Esq.
Twomey, Latham & Shea Kirkpatrick & Lockhart Attorneys at Law 1900 M Street, N.W.
P.O. Box 398 8th Floor 33 West Second Street Washington, D. C. 20036 Riverhead, NY 11901 Donna Duer, Esq.*
Atomic Safety and Licensing Attorney Board Panel
- Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Panel Washington, D.C. 20555 U.S. Nuclear Regulatory Comission Washington, DC 20555 Atomic Safety and Licensing Appeal Board Panel
- James B. Dougherty, Esq.
U.S. Nuclear Regulatory Comission 3045 Porter Street, NW Washington, DC 20555 Washington, DC 20008 Docketing and Service Section* Stewart M. Glass, Esq.
Office of the Secretary Regional Counsel U.S. Nuclear Regulatory Comission Federal Emergency Management Washington, D.C. 20555 Agency 26 Federal Plaza Spence Perry, Esq. Room 1349 Associate General Counsel New York, NY 102/8 Federal Emergency Management Agency Room 840 Robert Abrams, Esq.
500 C S:reet, S.W. Attorney General of the State Washington, D.C. 20472 of New York Attn: Peter Bienstock, Esq.
Edward M. Barrett, Esq. Department of Law
. General Counsel State of New York
'.ong Island Lighting Company Two World Trade Center
. 250 Old County Road Room 46-14 Mineola, NY 11501 New York, NY 10047 MHS Technical Associates Ms. Nora Bredes 1723 Hamilton Avenue Shoreham Opponents Coalition Suite K , 195 East Main Street San Jose, CA 95125 Smithtown, NY 11787
Leon Friedman, Esq. Hon. Peter Cohalan Costigan, Nyman & Hyman Suffolk County Executive 120 Mineola Boulevard County Executive / Legislative Bldg.
Mineola, NY 11501 Veteran's Memorial Highway Hauppauge. NY 11788 Martin Bradley Ashare, Esq.
Suffolk County Attorney -
Mr. Jay Dunkleberger
- H. Lee Dennison Building New York State Energy Office Veteran's Memorial Highway Agency Building 2
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- Hauppauge, NY 11788 Empire State Plaza Albany, New York 12223 Chris Nolin Mr. Robert Hoffman New York State Assembly Ms. Susan Rosenfeld Energy Committee Ms. Sharlene Sherwin 626 Legislative Office Building P.O. Box 1355 Albany, NY 12248 Massapequa, NY 11758 h tr W Sherwin E. Turk I .
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