ML20132C880
| ML20132C880 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 07/24/1985 |
| From: | Christman J HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| Shared Package | |
| ML20132C866 | List: |
| References | |
| OL-3, NUDOCS 8507310036 | |
| Download: ML20132C880 (27) | |
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, LILCO, July 24, 1985 l
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4 OCCKETED l UNITED STATES OF AMERICA USNac I
NUCLEAR REGULATORY COMMISSION i
'65 JtJL 30 A10:13 .
Before the Atomic Safety and Licensing AppeairBoard r Sgtavin r 00CnET.6Gt.SE)v!U.
BRANCH in the Matter of )
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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3
) (Emergency Planning (Shoreham Nuclear Power Station, ) Proceeding)
Unit 1) )
LILCO'S REPLY BRIEF ON THE LEGAL AUTHORITY, CONFLICT OF INTEREST, AND STATE PLAN ISSUES 1
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Hunton & Williams
' P.O. Box 1535 Richmond, VA 23212 (804) 788 8200 l
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M' 0 A88&t 8M6 pgg i
o TABLE OF CONTENTS A. Realism: Recent Developments Confirm the
" Reali sm" A rg ume n t . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 B. Preemption: The Intervenors' Argument is B a sed on a My t h . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 C. Preemption: The Intervanors and NRC Staff Have Overemphasized and Misconstrued the S t a te " P u r p o se " . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 D. Preemption: Arguments Over Details Cannot Obscure the Fact that the Legislative History !
Reveals a Specific Intent Not to Let States Halt Reactor Operation Through Failures of Eme rge ncy Pla n n i n g . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 E. Conflict of Interest: The PID la inconsis-tent With the Whole Structure of NRC Regula-tion...................................................... 17 F. State Plan: There is No Basis for Assuming the State Will Sabotage an Emergency Response . . . . . . . . . . . 17 G. All the lasues: Any State or Local Governn ent can Prevent a Plant from Operating if the Boa rd's Deci sion S ta nds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 1
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TABLE OF AUTHORITIES !
Cases !
Citizens for an orderly Energy Policy, Inc. v. County of I Suffolk, 604 F. Supp. 1084 (E.D.N.Y. 1985)......... 11, 19 I l Cohalan v. New York State Disaster Preparedness Comm'n, l
No. 5145-82 (N.Y. Sup. Ct., petition filed l
December 6, 1982)...................................... 19 County of Suffolk v. Long Island Lighting Co., 554 F. Supp.
i 399 (E.D.N.Y. 1983).................................... 19 l I
Cuomo v. LILCO, Consol. Index No.84-461 (N.Y. Sup. Ct., Feb.
20, 1985).............................................. 19 !
t First Iowa _ Hydro-Electric Cooperative v. FPC, 328 U.S. 152 ;
(1946)................................................. 9
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r Jones v. Rath_ Packing _Co., 430 U.S. 519, 526 (1977)......... 11 Pacific Gas & Electric Co. v. State Resources Conservation &
~ Development comm l n, 461 U.S. 190 (T9Ei3)........ 9, iW 16 i Prospect v. Cohalan, Index 85-10520 (N.Y. Sup. Ct. July 19, i 1985) (Brown, J.)................................... 1, 19 Prospect v. Cohala3, N.Y.2d , slip op, at 3 (No. 440 I July 9, f58$)................................... 3, 6, 19 t
N RC__ Cases k9Ilg_ Island l ghting Co2 (Shoreham Nuclear Power Station, f Unit 1), CLI-8$71'2, 21 NRC (June 20, 1985)...... 2, 4 '
kggig_1,. stand l ghting_Cn2 (Shoreham Nuclear Power Station, l Unit 1), LBP-s3-22, 21 HRC 644, 909 (1985)............. 6
!alarll),Jghting d Lojig_thRti LD1C83 Co2 7 2f, (Shoreham 17 NRC 608, Nuclear affj , 17 Power HRCStation, 741 (1983) 16 i f
i Olhtg i House and Senate committee Reports...................... 14, 15 f f
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N.Y. Exec. Law $ 25(1) (McKinney 1982)....................... 6 10 C.F.R. $ 50.47........................................... 10 NUREG-0654.................................................. 10 i
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LILCO, July 24, 1985 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-OL 3
) (Emergency Planning (Shoreham Nuclear Power Station, ) Proceeding)
Unit 1) )
LlLCO'S REPLY BRIEF ON THE LEGAL AUTHORITY, CONFLlCT OF INTEREST, AND STATE PLAN ISSUES This brief is a reply to the "Drief of Suffolk County and the State of New York in Opposition to LILCO's Appeal From the Atomic Safety and Ll-censing Doard's Partial Initial Decision on Emergency Planning," dated July 11,1985 (referred to hereinaf ter as "Intervenors' Brief") and the "NRC '
Staff's Drief in Response to Long Island Lighting Company's Appeal from the Partial Initial Decision on Emergency Planning of April 17, 1985," dated July 10,1985 (" Staff's Drlof"). In ll 0ht of the New York State court's decision of July 10,1985, the "Intervonors'" brief represents the State's, but no longer necessarily the County's, views. &qspect v. Cohalan, index 8510520 (N.Y.
Sup. Ct. July 10,1085) (Drown, J.).1/ The Suf folk County Executive's po-sition is given in the letter of July 11, 1985, from Eugene R. Kelley, Chief 1/ In a letter of June 3,1985, from Martin Bradley Ashare, Suffolk Coun- '
ty Attorney, to the Chairman of the NRC, Mr. Ashare indicated that counsel for the County had been discharged. The July 10 decision in EtospScLv Cohalag confirmed the County Enocutive's power to hire and fire counsel.2 l
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Deputy County Attorney, to the Appeal Board. References below to "LlLCO's Brief" are to LILCO's Brief Supporting its Position on Appeal from the " Par-tial initial Decision on Emergency Planning" of April 17, 1985, dated June 3, 1985.
A. Realism: Recent Developments Confirm the
" Realism" Argument The Intervenors argue (Intervenors' Brief at 47) that recent develop-ments in Suffolk County have "no bearing on these proceedings" (ii). The l NRC Staff says essentially the same thing about the Commission's Order of June 20,1985, LonD island Lighting _Co. (Shoreham Nuclear Power Station),
CL1 85-12, 21 NRC _ (Juno 20,1985) (Staff's Drief at 34 35). Nothing could be further from the truth.
The record in this proceeding shows that the Governor of New York has stated that both the State and County would help "to the extent possible" in a real emergency.2/ in addition, the record contains the opinion of LlLCO
- !/ Cordaro and Weismantle, (f. Tr.13,800, at 7. The NRC Staff's insis-tence that this statement is " extra record," Staff's Brief at 31, cannot change the fact that it is record evidence and that no one has attempted to refute it, even though the evidence to refute it, if any, would be in the control of the Intervenors. See also LILCO's Brief at 58 (on the "emerDency consensus" that occurs in an emergency), 45 (presumption that state officials are doing their duty), 60 (inference that, if a party falls to produce his evidence, it is unfavorable to him). If there were no evidence and no presumptions in LILCO's favor on this point LlLCO would ask the NRC to take official notice that both State and County have repeatedly and emphatically stated their single minded commitment to the public health and safety, and further to take notice that everyone knows an emergency responso In accordance with a plan protects the public better than an unplanned response.
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witnesses that state and county officials would respond. See, eA, Tr.
10,518-19 (Weismantle); see also Tr.14,680 (Rasbury) (in an emergency po- l 1
litical considerations will not affect people's response). The State and Coun- !
ty chose not to attempt to refute this evidence, which in any event merely ;
states the obvious: if real people were really at risk, all the governments in- I volved would try to protect them.
Subsequent events have only tended to confirm this. On June 26, 1985, the Suffolk County Executive wrote counsel for LILCO that he would ;
respond "to the best of my ability and in accordance with the duties and obil-gations placed upon me by Article 2 b of the Executive Law." Then, in Exec- j utive Order 1-1985, dated May 30, 1985, he ordered the County to undertake l a test of the LILCO Plan. This order was declared unlawful on July 9,1980, j by the New York Court of Appeals in a four to three vote. But the majority l oplnlon included the following passage:
l l l If the challenged executive order is merely a i vehicle for the gathering of information to enable the i county executive to perform his statutorily mandated i functions of tAking 'an active and personal role In ,
the development and implementation of disaster pre- [
l paredness programs (Executive Law I 20(1)(b)) and
- l giving " advice and assistance" to the local legislative t body or other duly aprointed planning authority r (Executive Law I 23(5)), it is clearly authorized ;
under the statute. -
_tpfpect _v. Cohalag, ,,,,,,, N.Y 2d _, slip op, at 3 (No. 440 July 9,1985). j in response to this decialon the County Executive, on July 15, 1983, issued l Executive Order 2=1983, in which he annnunced that he would from time to time direct appropriate County Department heads to review such radiological (
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emergency response plans for Shoreham as may be feasible, including the LILCO Plan. Thus, the County Executive has given at least a qualified en-dorsement of the realism argument. See letter from Eugene R. Kelley to Ap-l peal Board, July 11,1985, at 3. What we now have, in short, is a Governor who has admitted he would respond in a real emergency and a County Execu-l tive who has committed both to respond in a real emergency and to gather in-formation in advance about existing emergency plans.
l At the same time, the NRC itself lent support to the " realism" argu-ment. On June 20, 1985, the Commission issued an order in this case, CLl 8512. In denying a request for a NEPA evaluation of low power op-eration, the Commission stated its confidence that, if it upholds the LicensinD Doard's determination that an adequate emer0ency plan is feasible with state and local participation, the State and County will accede to that judgment and provide the participation needed to make the plan successful. .Long Island LightingA (Shoreham Nuclear Power Station), CLl 8512, 21 NRC _,,ellp op, at 4 (June 20,1085). [
The State argues (Intervenors' Drief at el8) that any State or County response would be " unplanned and ad hoc in nature." Dut that is not the ;
issue in Contentions 1 10; the issue is whether there is legal authority, and i
there clearly would be in a real emergencv. The intervonors could have ;
raised contentions based on what would really happen in an omorgoney, but instead they proferred to cling do00edly to the first Great Myth of this [
l proceeding that is, to assume that no County or $tato rr sponse would l
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I occur 3/ -- and to resist all attempts by LILCO to submit evidence to the contrary. Now that assumption has been shown to be wrong, as everyone knew it was, and it is too late to raise issues about " coordination" with the County government.4/
Moreover, the cooperative County-LERO response would not be ad hoc.
- New York law allows a county executive to make use of all available resourc- l es
l 3/ This fictional notion Doverned most of the proceeding, despite LILCO's i 6est efforts. When LlLCO first submitted its offsite emer0ency plan, it in-cluded a variety of alternate modular sections to the Plan to be used if varl-ous governmental entitles including the County or State - took command and control. LILCO asked that all these alternatives be considered but em-phasized that the plan desioned to be implemented by Suffolk County was the
" principal offsite plan" and the one that should be considered first. LILCO's Memorandum of Service of Supplemental Emer0ency Planning Information at 2, 10 (May 20,1083). At the same time LILCO noted that the LlLCO Transition Plan has the capability of incorporating County personnel into the response after an emergency has begun,jlja at 11 n.0, and that LILCO expected that many County personnel would be willinD to perform their duties in an actual ;
emergency, id, at 15. The ASLD declined to hear any but the utility orly 6 version of tiii~ Plan. Order Limiting Scope of Submissions at 3 (June 10. !
1003). !
Later, in the first written testimony filed with the Board, LILCO wit-nesses testified that State and County personnel would respond in a real l emergency. The Board struck this evidence. Cordaro et ala, ff. Tr. 031, at ,
20 30; Tr. 700 03 (Dec.1,1003); Order Confirming Changes in Schedule with Hogard to " Group II" Contentions and Rulinos on Motions to Strike (Dec.
2, 1033). Other such evidence was likewise stricken. See LILCO's Orlof at l G8 00; LILCO's Brief on Contentions 1 10 at 40 52 (Nov.10,1004).
4/ The County did, in Contention 02, raise the issue of coordination with the State. The reason is that when the contentions were written the State had not yet begun to oppose Shoreham in this proconding. But the issue of coordination with the State is dealt with under Contentions 01, 03, 80, and 02, whern LILCO showed that it has arranged to substitute for the State, if necessary, and to communicate with the State.
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Upon the threat or occurrence of a disaster, the chief executive of any political subdivision is hereby authorized and empowered to and shall use any and all facilities, equipment, supplies, personnel and other resources of his political subdivision in such manner as may be necessary or appropriate to cope with the disaster or any emergency resulting theref rom.
N.Y. Exec. Law 5 25(1) (McKinney 1982). The authority of the County Ex-ecutive to respond to an emergency was recently confirmed. See Prospect v.
Cohalan, _ A.D.2d _, slip op, at 0-10 (June 24,1985), aff'd, _ N.Y.2d (No. 440 July 0,1985). And, since the County Executive has decided to Dather information about the LILCO Plan, in an emer0ency he would be in-formed about how it works and his response would not be "ad hoc "
- 8. Preemption: The Intervonors' Argument in Dased on a My,th The intervenors have built their case against federal preemption, suc-cessfully so far, on the Second Great Myth of this caset that LILCO's emer-gency plan interferes with state and local government. Repeatedly the Inter-venors' Brief speaks in expansive hyperbole of striking down "the basic Dovernance statutes" of New York (Intervenors' Drief at 10), invalidating the state laws that establish "the essential structure of state Dovernment" (li at 7), and the like. If LILCO is allowed to respond to an emergency, we are told, the Republic will fall. The Licensing Board's decision also reflects this idea, calling a response under the LILCO Plan a " fundamental . . . shif t in the structure of federal stato relations." PID, 21 NRC at 900.
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l 1-i l This is wrong. The LILCO Plan exists only because the State and 1
l County declined to carry out the functions at issue: They refused to plan in i l
l advance, and the hypothesis of the proceeding 5/ was that they would not re-l l spond in a real emergency either. LILCO's plan merely fills a void. And it expressly provides for subordination of LERO to governmental personnel, should they__ decide to act. Behind the state law or laws that LlLCO's planned emergency response is now held to violate - the law D ving i exclusive emer- "
gency response authority to the government is the assumption that the ,
government will do the job. Under the assumption that this is no longer the case - that the Dovernment will not function - LILCO's response may still be contrary to state law, but it cannot accurately be said for purposes of federal presumption to shif t "the structure of faideral state relations." It would be a more difficult caso if a utility proposed a counterplan to an existinD govern-mental plan that would have its employees pushing policemen aside. But that l ls not the case before this Appeal Board.
l l In fact, if LILCO's position is upheld no state law will be stricken from the books. Cnforcement of state law will be preempted, but only to the fol-l lowing, entraordinarily limited, autent:
- 1. If a highly unlikely radiological accident oc-cur:0/; l
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l D/ See n.3 above.
0/ Cscept for the posting of signs marking evacuation routes, addressed In Contention 3.
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- 2. If the County and State refuse to respond to that emergency;
- 3. To the extent LERO performs acts that the NRC has determined to be necessary to protect the public health and safety; and
- 4. To the extent that the NRC has approved LILCO's plan for performing these acts.
This is the answer to the NRC Staff's fear that LILCO's theory would allow utility parapolice to carry guns and generally run amok. Staff's Orlef at 28 n.30.
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In reality, the only state action that LILCO's Plan or emergency re-sponse would frustrate is the State's deciolon not to allow Shoreham to oper-ate, a decision based squarely on radiological health and safety grounds.
The State is still, under LILCO's Plan, fully in control of emergency re-l sponse, and it could be in control of emergency planning if it wanted to be, in short, the State can plan and respond; what it cannot do, in the face of l federal law, is plagentemargencylanJag_allopejar l l as a tactic for pre-venting the plant from operating above five percent power.
For the same reason, the State's arguments about " actual conflict" are wrong. The Intervenors' Drief says that the federal purpose of promoting nuclear power is not to be carried out "at all costs." (The brief ignores the federal purpose of promoting emargerLey_plarming.) Dut what is "the cost" of approving LILCO's plan to respond to emergencies? How does it lessen any state prerogative, oncept that of deciding, on health and safety grounds, that Shoreham may not operato?
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C. Preemption: The Intervenors and NRC Staff Have Over-emphasized and Misconstrued the State " Purpose" l
The State and the NRC Staff argue that if the original legislative pur-pose of a state law is not directed at radiological health and safety, then the law can never be preempted by the Atomic Energy Act and NRC regula-tions.Z/ This is an incorrect reading of Pacific Gas r, Electric Co. v. State :
Resources Conservation t, Development Comm'n, 461 U.S.190 (1983),
in the first place, if the state legislation regulates construction or op-r eration of a nuclear plant (the "how" of construction or operation rather than t
the "whether" to build nuclear plants at all), then no state purpose can save the state law. That is the message of the following passage from PGr,E, which j 1
neither the State nor the NRC Staff has been able to explain away:
At the outset, we emphasize that the (California] '
statute does not seek to regulate the construction or '
operation of a nuclear power plant, it would clearly ;
be Impermissible for California to attempt to do so, '
for such regulation, even if enacted out of safet y concerne, wouffneveriRilisTdifeli(I Mth y con n_on filet tTiTNRC"s" esclusive authority over plant con- :
struction and operation. l 401 U.S. at 212 (emphasis added).8/ I l
7/ This in true under the " sone" test, but also under the " actual conflict" i festaf where state purpose is irrelevant, indeed, under the State's and Staff a analysis it appears that no NRC regulation can ever "actually conflict" r with a state law, i i
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In the same Cooperative vill?C,deelslon, after(1040),
320 U.S.152 distinguishing EbLlowalas notse~itTn-becau controlling!Ydtod!
volvedTiedeHI agency with comprehensive planning authority, such as the !
NRC does (191 have, the court soldi :
(footnote continued) l l
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Does radiological emergency planning fall within the preempted field, described in PGLE as "the safety and ' nuclear' aspects of energy generation,"
461 U.S. at 212, and the " construction or operation of a nuclear power plant," & at 2127 Of course it does, as a well-known group of lawyers once made clear: .
Off-site preparedness is no different than any other safety issues examined by the (NRC] in the context of the operation of a nuclear powerplant, indeed, off-site emergency preparedness may be among the most important safety considerations inasmuch as these plans are the last resort by which the public is protected from radiological danger.
Brief of Mario Cuomo, Governor of the State of New York in Support of Suffolk County Exception Nos. Xll 1 through Xll*G to the September 21, 1983 Preliminary Initial Decision, December 20, 1083, at 0 7. It is also apparent that radiological emergency planning is a federally regulated field from the pervasive regulation of the field in 10 C.F.R. 5 $0.47 and NUREG 0054.
The State's answer to this is that the state laws do not regulate " core struction or operation" of the Shoreham facility. Intervenors' Brief at 17.
This is patently incorrect. New York state law as applied prohibits Shoreham (footnote continued)
Moreover, 5 25524.2 (of the California statute l doce not Interfere with the type of plant that coult be constructed. Stato regulations which affected the ,
construction and operation of federally approved nu- ;
ricar power plants would pose A diffef ent case.
461 U.$. at 223 n.34.
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i from operating at greater than five percent power; it prohibits LILCO from implementing a safety system required by the NRC. If this is not regulating the operation of a nuclear plant, nothing is.
I In the second place, it is simply incorrect to see as the state " purpose" l as only the legislative purpose behind the state laws' enactment. As the Su-preme Court said in Jones v. Rath Packing Co., 430 U.S. 519, 526 (1977):
t The (preemption] inquiry requires us to consider the i l
relationship between state and federal laws as they ;
are interpreted and applied, not merely as they are !
written.
l (Emphasis added.) Only by separating the enactment of state laws from their I
! Interpretation and application, and ignoring the latter, have the Intervenors l l been able to carry their argument, j Moreover, the Intervenors have been able to prevail only by keeping '
3 separate their prevention of government planning and their prevention of ;
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utility planning. They claimed first, in federal district court, that local law ;
i does not prevent emergency planning (because LILCO can do a utility plan), j Thus, as the Intervenors point out, they persuaded the federal court that !
l the County's anti planning resolutions are not federally preempted. Citigeris, for an Orjierly_EntgyJ,o! Ley _ynCoynty of_ SuffoM, 604 F.Supp.1064 l
( E . D. N . Y . 1983) . The court found that the County resolutions do not "regu- !
late" LlLCO, but merely manifest the County's intention not to engage in emergency planning, leaving LlLCO free, in theory, to provide its own emer- l t
gency plan. $ n li at 1003 04. Then, in a separate proceeding in state !
court and now before the NRC, the Intervenors argue that the private plan 11-i I
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may not be implemented either. The combination of the two actions is to pro-hibit emergency planning for Shoreham; if the former action (the prohibition of governmental plans) is not preempted, then the latter, the prohibition of private plans, must be, if there were any doubt that the " purpose" of New York is to regulate radiological health and safety, it was ended by the argument before the NRC on June 4,1985:
COMMISSIONER ASSELSTINE: Okay. So the State position remains that they have responsiblities and roles in emergency planning and are not pre-pared to carry those out, and that therefore there are defects or deficiencies.
MR. PALOMINO (counsel for State of New York]: Yes, that's right.
COMMISSIONER BERNTHAL: You are saying in effect, then, that it is not a question of the State having the resources to do that, but they simply would refuse to do that? Is that your argument?
MR. PALOMINO: Yes, that's my argument.
That is the Governor's position.
COMMISSIONER BERNTHAL: And the State would not carry out its protective functions in the event of an accident?
MR. PALOMINO: No. What we are saying is that we won't carry them out or agree to carry them out to put this plant on line and present us with a hatard where we might have to.
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s COMMISSIONER BERNTHAL: But it [the Gov-ernor's position) rests strictly on the emergency i
evacuation question?
MR. PALOMINO: No, also the safety of the plant. He doesn't feel it is safe and he doesn't feel you can have a safe evacuation, and he feels that at Long Island you should have the safest evacuation because of the density of the population.
Tr. 22-23.
MR. PALOMINO: Yes. There are legal imped-iments which we control, and it (Shoreham) won't operate as long as we can control the legal impedi-ments.
Tr. 25. In short, the State quite candidly is seeking to prevent the op-eratlon of Shoreham by ral:Ing " legal impediments" because the Governor as-sorts that the plant is not safe, it is completely unrealistic to claim that this is not regulating nuclear power on radiological health and safety grourds.
See also Tr. 3655 58, 3669 70 (Jan. 27,1984) (counsel for New York State argues that since the Governor says that State laws forbid the LILCO Plan, the ASLB should automatically rule against LILCO on Contentions 1-10 and terminate the proceeding), 3G59 63 (former Suffolk County counsel argues the same thing).
The State arDues that offsite planning is not a field reserved to federal "ac tion . " Intervenors' Brief at 15. This is true; state ac_t_i_o3l a not only al-lowed, but encouraged. But state tegdalom is preempted. And there is a difference, in this case the State has refused to take action and has tried to regulate LILCO's taking it.
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D. Preemption: Arguments Over Details Cannot Obscure the Fact that the Legislative History Reveals a Specific Intent Not to Let States Halt Reactor Operation Through Failures of Emergency Planning Perhaps there is too much legislative history in this case. Both sides q have cited colloquies, extended remarks of individual Congressmen, and such, and the Intervenors have even cited testimony by individual NRC com-missioners before Congress. Let us ignore, then, the less authoritative leg-islative materials and look only at committee reports. The report langu. age for three successive authorization acts has shown that Congress did not intend state and local failures to do emergency planning to " penalize" applicants (that is, to force nuclear plants to shut down) and that it enacted the " utility plan" provision specifically because of concern over this "potentially signifi-cant problem." H. R. Rep. No. 96-1070, 96th Cong. , 2d Sess. 27 (1980),
reprinted in 1980 U.S. Code Cong. & Ad. News 2260, 2270 (conferees sought to avoid penalizing an applicant if a State or locality does not submit an emer-gency plan or if the submitted plan does not satisfy all the guidelines or rules); S. Rep.97-113, 97th Cong. ,1st Sess.17-18 (May 15,1981),
reprinted in 1982 U.S. Code Cong. & Ad. News 3592, 3601-02; H. R. Rep.
97-22 Part 2, 97th Cong.,1st Sess. 27 (June 9,1981); Conf. Rep.97-884, 97th Cong., 2d Sess. 27-28 (Sept. 28,1982) (provision is designed to clarify certain legal ambiguities in the NRC regulations as to whether the NRC could s
issue a license in the absence of a State or local emergency plan approved by FEMA; this amendment " resolves any legal ambiguity" by requiring that the
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NRC regulations be interpreted consistent with Congress's intent as expressed in the 1980 Authorization Act; the provision reiterates the intent of the 1980 Act); S. Rep. No.98-546, 98th Cong. , 2d Sess.14-15 (June 29, 1984) (witnesses called to the Senate subcommittee's attention two potentially significant problems, the first being that state or local governments might keep FEMA and the NRC from evaluating a utility plan); see also H.R. No.98-223, 98th Cong. ,1st Sess. 30-31 (1983) (FEMA appropriations). The other, less authoritative legislative history materials are valuable chiefly be-cause they form a consistent pattern -- consistent with the language of the statutes and committee reports.
The legislative history does show Congress's unwillingness to compel states' to write and implement their own plans. And nowhere is there express preemption of emergency planning specifically -- that is, nowhere are the words " state laws governing emergency planning are hereby rendered null and void." But Congress also showed its unwillingness to shut down nuclear plants automatically when state emergency planning had deficiencies.
LILCO's Brief at 24-25. And, short of express preemption, Congress's intent not to allow state and local governments to shut down nuclear plants by fail-ures of emergency planning could hardly be clearer.
The Intervenors cite both legislative history and NRC language to the effect that a utility plan is not to be approved if it can not protect the pub-lic. The Intervenors interpret this to mean de jure, not de facto. But this interpretation has been rejected by the Brenner Board, and that Board's
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interpretation was affirmed as " correctly analyz[ing] the question of whether the agency can consider a utility offsite emergency plan." 17 NRC at 742; LILCO's Brief at 34. Nor is there any reason to believe that when Congress set as the sole criterion of utility (or other) plans the requirement that the plan provide " reasonable assurance that public health and safety is not en-dangered" by operation of the reactor, it meant anything other than that the plan be physically able to protect the public.
The NRC Staff emphasizes the need to show a " clear and manifest" pur-pose of Congress to preempt and thinks that such a showing has not been made. But the Staff appears to be applying a standard of clearness and man-ifestness that can only be met by express preemption, thus reading implied preemption out of the law. Moreover, the Staff would require this express exemption, apparently, not only of the field as a whole (radiological health and safety)9/ but of each subject within it -- emergency planning, quality assurance, and so forth. The Staff agrees that emergency planning is an in-tegral part of the NRC's regulation of health and safety, Staff's Brief at 25, but finds it uniquely exempted from the field for purposes of preemption --
even though when Congress has elsewhere made such an exception it has done so clearly and expressly. PG E,E, 461 U . S . at 212- 13 n . 25.
9/ The Brenner Board found that the field of nuclear licensing and regu-lation has been "both explicitly and implicitly" preempted. L B P-83-22, 17 NRC 608, 638.
o
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E. Conflict of Interest: The PID is inconsistent With the Whole Structure of NRC Regulation The State disagrees with LILCO's conclusion that under the Licensing Board's reasoning neither onsite emergency plans nor private operation of nuclear plants can be allowed. Intervenors' Brief at 56-57. But LILCO is clearly correct. What the record contains is NRC Staff testimony that there is no difference in kind between utility decisions in regular operation and de-cisions in offsite or onsite emergency planning,10/ see Schwartz, ff. Tr.
15,143, at 2, and an ASLB decision that utility employees are disqualified from making the latter types of decisions. This decision simply cannot stand without shaking the entire basis of NRC regulation.
Moreover, the ASLB's decision on Contention 11 rests on the preposter-ous notion that the " subtle biases" that affect all humans do not affect elected officials or, even worse, on a refusal to consider any but the particular kind of bias that the Intervenors singled out for attention.
F. State Plan: There is No Basis for Assuming the State Will Sabotage an Emergency Response Contrary to the hypothesis under which the other issues in this case were tried, Contention 92, which concerns the absence of a state plan, raises the possibility that the State will respond in a real emergency, but without 10/ LILCO's testimony made the same point. Cordaro et al., ff. Tr.
10,196, at 26.
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" coordination" with LILCO. The reason is that when the contention was writ-ten, the State had not yet announced that it would not ccoperate in emergen-cy planning.
The legal basis for the Licensing Board's decision on Contention 92 is erroneous. The preference for " coordination" found in the rules presupposes that two or more parties will be undertaking different parts of the task.
There is no rationale for coordination with the State if LILCO has provided to substitute completely for the State, as the record shows it has. There are simply two independent and complete means (the State and LERO) for re-sponding to an emergency.
The only way, therefore, to rule against LILCO on this issue is to presume that the State will respond but willfully and destructively sabotage the response by stubbornly refusing to use LERO's resources or to inform LERO what it is doing. This is an incredible presumption, and one with no basis in law or fact.
G. All the Issues: Any State or Local Government Can Prevent a Plant from Operating if the Board's Decision Stands The State and the the NRC Staff claim that this case has little or no bearing on other cases. This is demonstrably incorrect. If the ASLB's deci-sion stands, any state that decides a nuclear plant is unsafe can prevent its operation merely by announcing its refusal to do an emergency plan.
n
With this power, of course, goes the attendant responsibility. It will not be long before the states perceive that they have to make the decision, in the context of emergency planning, as to whether each nuclear plant is safe enough; that they make that decision will be demanded by interests opposing each plant. There will follow a debate over the safety of each plant, carried on in state forums, to decide whether each plant can begin to operate or even continue to operate. There is simply no way to limit the Board's finding to the facts of this case.
This very case provides a dismal example of what happens when the li-censing decision is made at the state or local level. Since this NRC proceed-ing became active some three years ago LILCO has been made a defendant, or been forced to intervene, in five state or federal court lawsuits.11f it has had to participate in proceedings before a Governor's fact-finding commission and in Suffolk County legislative hearings. It has been investigated for pos-sible criminal prosecution because it submitted an offsite plan for the County to the State Disaster Preparedness Commission. More recently, litigation has been threatened in Nassau County, simply because the reception center for evacuees is situated there.g/ And the debate over Shoreham likewise has 11/ Cohalan v. New York State Disaster Preparedness Comm'n, No. 5145-82 l (N.Y. Sup. Ct., petition filed December 6,1982); County of Suffolk v. Lo_ngn l
Island Lighting Co., 554 F. Supp. 399 (E.D.N.Y.1983); Cuomo v. LI LCO,
- Consol.
- idex No.84-461 (N.Y. Sup. Ct. , Feb. 20, 1985); Citizens for an Orderly Energy Policy, Inc. v. County of Suffolk, 604 F. Supp. 1084 (E.D.N.Y.1985); Prospect v. Cohalan, Index No. 85-10520, _ N.Y.2d (No. 440 July 9,1985); id., (N.Y. Sup. Ct. July 19, 1985) (Brown, J. ) .
12/ Su the Statement by John Matthews, ff. Tr. 15,956, at 3, promising i that "[l]egal action will be taken within the next few days" to invalidate the choice of the Nassau Coliseum as a reception center. (This part of the hear-ing record is not yet before the Appeal Board.)
c been carried to the schools, churches, and Red Cross chapters in both Suffolk and Nassau Counties. Unless the NRC finds state laws preempted in this case, any nuclear plant in the country can hereafter be shut down, through the mechanism of emergency planning, by state or local governments.
This would be contrary to the " clear and manifest" intent of Congress and to years of judicial decisions confirming the exclusive federal role in the regula-tion of nuclear power.
Respectfully submitted, LONG ISLAND LIGHTING COMPANY$
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J-es N. Christman!
Hunton r, Williams P.O. Box 1535 707 East Main Street Richmond, VA 23219 DATED: July 24,1985
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e LILCO, July 24, 1985 DC M ~ED usuc CERTIFICATE OF SERVI'CE
'85 JJL 30 A10 :13 In the Matter of LONG ISLAND LIGHTING COMPANY cr:cg. gcgg.p (Shoreham Nuclear Power Station, Unit 1) C00U G a sEsv:0 Docket No. 50-322-OL-3 (Emergency Planning) 6 RANCH I hereby certify that copies of LILCO'S MOTION FOR LEAVE TO FILE REPLY BRIEF and LILCO'S REPLY BRIEF ON THE LEGAL AUTHORITY, CON-FLICT OF INTEREST, AND STATE PLAN ISSUES were served this date upon the following by U.S. mail, first-class, postage prepaid or, as indicated by an asterisk, by Federal Express:
Alan S. Rosenthal, Chairman
- Morton B. Margulies, Atomic Safety and Licensing Chairman, Atomic Safety Appeal Board and Licensing Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Fifth Floor (North Tower) East-West Tower, Room 402A East West Towers 4350 East-West Highway 4350 East-West Highway Bethesda, MD 20814 Bethesda, MD 20814 Jerry R. Kline, Gary J. Edles, Administrative Law Judge Administrative Law Judge
- Atomic Safety and Licensing Atomic Safety and Licensing Board Appeal Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission East-West Tower, Room 427 Fifth Floor (North Tower) 4350 East-West Highway East West Towers Bethesda, MD 20814 4350 East-West Highway Bethesda, MD 20814 Frederick J. Shon, Administrative Law Judge Howard A. Wilber, Atomic Safety and Licensing Administrative Law Judge
- Board Atomic Safety and Licensing U.S. Nuclear Regulatory Appeal Board Commission U.S. Nuclear Regulatory East-West Tower, Room 430 Commission 4350 East-West Highway Fifth Floor (North Tower) Bethesda, MD 20814 East West Towers
, 4350 East-West Highway Bethesda, MD 20814 l
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r Donna Duer, Esq. Stewart M. Glass, Esq.*
Attorney Regional Counsel Atomic Safety and Licensing Federal Emergency Management Board Panel Agency U.S. Nuclear Regulatory 26 Federal Plaza, Room 1349 Commission New York, New York 10278 East-West Tower, North Tower 4350 East-West Highway Spence W. Perry, Esq.
Bethesda, MD 20814 Associate General Counsel Federal Emergency Manage-Bernard M. Bordenick, Esq.* ment Agency SFerwin Turk, Esq. 500 C Street, S.W.
Edwin J. Reis, Esq. Room 840 U.S. Nuclear Regulatory Washington, D.C. 20472 Commission 7735 Old Georgetown Road Ms. Nora Bredes Bethesda, MD 20814 Executive Coordinator Shoreham Opponents' Coalition Herbert H. Brown, Esq.* 195 East Main Street Lawrence Coe Lanpher, Esq. Smithtown, NY 11787 Christopher McMurray, Esq.
Kirkpatrick & Lockhart James B. Dougherty, Esq.*
8th Floor 3045 Porter Street 1900 M Street, N.W. Washington, DC 20008 Washington, DC 20036 Martin Bradley Ashare, Esq.*
Fabian Palomino, Esq.* Suffolk County Attorney Special Counsel to the Governor H. Lee Dennison Building Executive Chamber, Room' 229 Veterans Memorial Highway State Capitol Hauppauge, NY 11788 Albany, NY 12224 Stephen B. Latham, Esq.*
Mary Gundrum, Esq.* John F. Shea, Esq.
Assistant Attorney General Twomey, Latham & Shea 2 World Trade Center 33 West Second Street Room 4614 Riverhead, NY 11901 New York, NY 10047 Ralph Shapiro, Esq.*
MHB Technical Associates Cammer & Shapiro, P.C.
1723 Hamilton Avenue 9 East 40th Street Suite K New York, New York 10016 San Jose, CA 95125 Jay Dunkleberger, Esq.
Jonathan D. Feinberg, Esq. New York State Energy Office New York State Department Agency Building 2 of Public Service, Staff Empire State Plaza Counsel Albany, NY 12223 Three Rockefeller Plaza Albany, NY 12223
e Gerald C. Crotty, Esq. Atomic Safety and Licensing Counsel to the Governor Board Panel Executive Chamber United States Nuclear State Capitol Regulatory Commission Albany, NY 12224 Washington, D.C. 20555 Secretary of the Commission Atomic Safety and Licensino United States Nuclear Appeal Board Panel Regulatory Commission United States Nuclear Washington, D.C. 20555 Regulatory Commission Washington, D.C. 20555 James N. Chr htman Hunton r, Williams Post Office Box 1535 Richmond, Virginia 23212 DATED: July 24,1985
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