ML20136D786

Response Opposing Util 851104 Petition for Review of ALAB-818 Re Legal Authority to Implement Offsite Radiological Emergency Plan

ML20136D786
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	11/18/1985
From:	Sherwin Turk NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:
Shared Package
ML20136D788	List: ML20136D786 ML20136D830
References
CON-#485-247 ALAB-818, OL-3, NUDOCS 8511210368
Download: ML20136D786 (12)

Text

. . _ _ _ _ - _ - _ _ _ _ _ _ _ _ - _ _ - _ _ _ - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ .

i ESC &'ED O5 UNITED STATES OF AMERICA NUCLEAR BEFORE THE COMISSION REGULATORY Q0MMISSION 55 k97 In the Matter of )

LONG ISLAND LIGHTING COMPANY Docket No. 50-322-OL-3 l (Shoreham Nuclear Power Station, )

Unit 1) )

NRC STAFF'S ANSWER TO LILCO'S PETITION FOR REVIEW 0F ALAB-818 Sherwin E. Turk Deputy Assistant Chief Hearing Counsel November 18, 1985 hDR DOC O 22 O PDR Ts 7 L

UNITED STATES OF AMERICA U

NUCLEAR REGULATORY COMMISSION gy 79

'?

A10,.,g BEFORE THE COMMISSION

. In the Matter of )

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

. ) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

NRC STAFF'S ANSWER TO LILC0'S PETITION FOR REVIEW 0F ALAB-818 Sherwin E. Turk Deputy Assistant Chief Hearing Counsel November 18, 1985 l

O kk[Q

~

UNITED STATES OF AMERICA '$ '8 NUCLEAR REGULATORY COMMISSION 88P 79 BEFORE THE COMMISSION 5 ,, 0 ~/O In the Matter of )

~

)

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

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

l NRC STAFF'S ANSWER TO LILC0'S l PETITION FOR REVIEW 0F ALAB-818 On November 4, 1985, Long Island Lighting Company (LILCO) filed a 14-page " Petition for Review of ALAB-818" (" Petition").1/ Therein, LILC0 requests that the Commission take review of the Appeal Board's decision relating to LILCO's legal authority to implement its offsite radiological emergencyplan(ALAB-818),SI based on LILC0's assertion that the decision "is incorrect on important grounds of law and policy" (Petition, at 1). 3_/

-1/ Attached to LILCO's Petition was a " Motion for Page Limit Extension on Petition for Review of ALAB-818" (" Motion"), in which LILC0 sought leave to file its 14-page Petition. In the interest of averting a denial of LILCO's Petition on procedural grounds, the Staff has determined not to oppose LILC0's Motion as set forth in the "NRC Staff's Answer to LILCO's Motion for Page Limit Extension on Petition for Review of ALAB-818," which is being filed simulta-

, neously herewith.

2/

~

Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),

ALAB-818, 22 NRC (slip op., October 18,1985).

3/ Pursuant to 10 C.F.R. 9 2.786(b)(1), a party may file a petition for Consnission review of an Appeal Board decision or action "on the ground that the decision or action is erroneous with respect to an important question of fact, law, or policy." The Appeal Board's decision as to which LILC0 now seeks review decided only questions of law, and LILCO's Petition does not assert that the Appeal Board erred with respect to any questions of fact.

Pursuant to 10 C.F.R. Q2.786(b)(3), the NRC Staff (" Staff") hereby files its answer to LILC0's Petition. For the reasons more fully set forth herein, the Staff submits that the Appeal Board's decision in ALAB-818 is correct in all respects, and that review of that decision by the Commission is not required -- notwithstanding the fact that the issues decided by the Appeal Board may involve important questions of law and policy. For these reasons, the Staff opposes LILC0's Petition and recommends that it be denied.

INTRODUCTION In ALAB-818, the Appeal Roard affirmed the Licensing Board's Partial Initial Decision of April 17, 1985, S/ ot the extent that the Licensing Board had determined that LILC0 lacks the legal authority to implement material portions of its offsite radiological emergency plan. 5_/ The Appeal Board observed that a New York state court had previously deter-l mined that private companies such as LILC0 cannot, under New York law, perform certain key functions which were contemplated by LILCO under its l

l l

l 4/ Long Island Lichting Co. (Shoreham Nuclear Power Station, Unit 1),

LBP-85-12, 21 BRC 644 (1985).

5/ While the Appeal Board decided LILCO's appeal on legal authority issues, it deferred for subsequent resolution other aspects of LILCO's appeal from the PID. Also pending before the Appeal Board at this time are the Intervenors' appeals from the PID, as well as LILCO's and the Intervenors' respective appeals from the Licensing Board's subsequent " Concluding Partial Initial Decision," issued on August 26,1985(LBP-85-31,22NRC410).

r offsite emergency plan, 5/ ecause b such functions may only be perfonned by governmental entities. U Like the Licensing Board, the Appeal Board determined that the State laws at issue were within the State's historic

/

police powers, and had been adopted for non-radiological purposes. Also like the Licensing Board, the Appeal Board found that Congress had failed to demonstrate a " clear and manifest" intent to preempt such laws and, accordingly, it held that the New York laws are not preempted by federal law. Finally, the Appeal Board rejected LILC0's argument that the legal authority issue is irrelevant since the State and County would respond in an actual emergency (LILC0's so-called " realism" argument). In this f/ Such functions included the issuance of protective action recom-mendations to the public, public broadcasting of instructions on the Emergency Broadcast System, and the management of vehicular traffic on public roads and highways during an evacuation.

-7/ Cuomo v. Long Island Lighting Co., Consol. Index No. 84-4615 (N.Y.

Sup. Ct., February 20, 1985), appeal docketed (N.Y. App. Div.,

April 26, 1985).

-8/ The Appeal Board's decision briefly recites the events which led LILC0 to develop its detailed offsite radiological emergency plan

-- principally Suffolk County's determination (supported by the State of New York) that no offsite emergency plan for Shoreham could be efficacious, and the County's defr mination not to parti-cipate in emergency planning for Shoreham. Those determinations are reflected in various legislative resolutions adopted by Suffolk County, the most significant of which (Res. No. 111-1983) was filed

, as an attachment to LILCO's Petition.

While LILC0 addresses Suffolk County's legislative resolutions in

. considerable length in its Petition, it must be emphasized that the propriety (and preemptability) of those resolutions are not now at issue before the Commission. Rather, the State laws at issue here are the general laws which were addressed by the New York State court and which underpin the two preemption decisions that have been rendered by the Licensing Board ard the Appeal Board. Those State laws involve the allocation of powers between government and private entities and, unlike Suffolk County's resolutions, do not address matters involving radiological health and safety.

I regard, the Appeal Board shared the Licensing Board's concern that even if the State and County would respond in an actual emergency, their response would be ad hoc, uncoordinated and unrehearsed, contrary to the purpose of the Commission's emergency planning regulations. El DISCUSSION The standards governing the grant of petitions seeking Commission review of Appeal Board decisions are well defined. While the grant of such a petition is within the discretion of the Commission, as set forth in 10 C.F.R. 9 2.786(b)(4), a petition seeking review of matters of law or policy must present an important question which merits the Commission's review:

(i) A petition for review of matters of law or policy will not ordinarily be granted unless it appears the case involves an important matter that could significantly affect the environment, the public health and sa#ety, or the common defense and security, constitutes an important antitrust question, involves an important procedural issue, or otherwise raises important questions of public policy.

10 C.F.R. Q 2.786(b)(4)(1). While the Appeal Board's decision may well involve an important question of law and may result in significant con-sequences, LILC0 has failed to demonstrate the existence of any error l

~

9/ Like the Licensing Board, the Appeal Board also rejected LILC0's so-called " immateriality" argument, whereby LILCO had asserted that it need not institute measures for traffic and EPZ perimeter control, since such measures are not explicitly required by the Commission's emergency planning regulations.

in the decision which warrants Commission review. For this reason, the Staff submits that Commission review of ALAB-818 is unwarranted. El In its Petition, LILC0 asserts that ALAB-818 "is incorrect in five principal respects" (Petition, at 7), as follows: (1) it misreads two recent Supreme Court decisions which address the issue of preemption in in the context of nuclear energy regulation EI (Petition at 7-8); (2) it misreads the " utility plan" provision contained in three successive NRC Authorization Acts (Id. at 9); (3) it ignores certain aspects of the history of this proceeding (Id. at 10-11); (4) it gives rise to " serious due process problems" which, it is asserted, could " amount to a taking without just compensation" (Id. at 11); and (5) by rejecting LILC0's

" realism" argument, it purportedly " compounds the legal authority problem"(Id.at12). In addition, LILC0 argues that Comission review is required for other reasons, such as to avert a denial of an operating l license for Shoreham and to preclude other States and local governments from exercising a veto power over other nuclear power plants. For the l reasons discussed below, the Staff believes that these assertions are l -

1 incorrect or otherwise fail to provide a basis to support Commission review of ALAB-818.

(1) The Supreme Court Decisions

. LILC0 erroneously asserts that the Appeal Board has misread the Supreme Court's PG8E and Silkwood decisions. In PG&E, supra, the Court

-10/ In so stating, the Staff recognizes that the Commission may exercise 4

broad discretion in determining whether to take review of an Appeal Board decision, and that the Commission may wish to take review of ALAB-818 given the importance of the issues addressed therein.

M / Pacific Gas & Ele _ctric Co. v. State Energy Resources Conservation

& Development Commission, 461 U.S. 190 (1983), and Silkwood v.

Kerr-McGee Corp., 464 U.S. 238 (1984).

held that a California statute imposing a moratorium on the certifica-tion 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 State's authority to regulate in areas within its historic police powers was upheld -- even if the State's exercise of its authority might affect the operation of a nuclear power plant. Further, as long as the enact-ment and enforcement of the State's laws was supported by sufficient rationale other than radiological safety, the Court indicated that it would not attempt to probe into the State's "true motives". In Silkwood, the Court held that a State-authorized award of punitive damages, in a tort action arising from the escape of plutonium from a federally-licensed nuclear facility, was within the State's historic powers and was not preempted -- notwithstanding the fact that such damage awards are intended to penalize violations of nuclear safety stancards and the fact that such standards and penalties are the subject of federal regulation. Moreover, the Court noted that preemption in the sphere of nuclear power regulation was premised upon Congress' perception that such regulation required the Commission's technical expertise in

, nuclear matters.

The Appeal Board's decision is fully consistent with the Supreme Court's decisions in Silkwood and PG&E, as well as with other judicial precedents which address the issue of federal preemption. Contrary to LILCO's assertion (Petition, 7-8), the Appeal Board gave proper consid-l eration to any differences in " context, motive and effect" between the S

matters at issue in those cases and in the instant case. As in PG&E, the Appeal Board observed that the States have retained responsibility for such matters as determining need, reliability, cost, land use, siting and other related concerns, and it found that the area of offsite emergency planning was another area in which the States have tradition-ally exercised jurisdiction pursuant to their " police powers":

[T]he management of vehicular traffic on public roads, governmental response to public emergencies (including the implementation of any necessary evacuation), and control over the actions of corporations operating within the state, have nothing to do with radiological health and safety and fall well within the category of activities routinely subject to state supervision.

Although the Commission has recognized its own role in emergency planning oversight, it has nonetheless observed that "the State and local governments have the primary responsibility under their constitutional police powers to protect the public."

l ALAB-818, slip op, at 15, citing Proposed Rule, " Emergency Planning",

44 Fed. Reg. 75,167,75,169(Dec.19,1985).12/ Further, the Appeal Board found the enactment and enforcement of the State's laws was supported by l

i i

--12/ See also Statement of Consideration, " Emergency Planning", 45 Fed.

Reg 55,402, 55,404-405 (Aug. 19, 1980). There, the Commission stated as follows:

i The Commission recognizes there is a possibility that I 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 opera-tion by State and local officials is not significantly different in kind or effect from the means already avail-able under existing law to prohibit reactor operation, such as zoning and land-use laws, certification of public convenience and necessity, State financial and rate con-siderations . . . and federal environmental laws. . . .

i

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

a sufficient nonsafety rationale, obviating any need to inquire into the State's and County's actual motives (ALAB-818, slip op. at 18). Follow-ing the rationale of the Supreme Court's decision in pG&E and Silkwood, j ,

the Appeal Board determined that the State laws were not preempted merely because they coincidentally might affect the operation of a nuclear power plant regulated by the Commission. Also, while the Commission's exper-tise in nuclear matters is important to assure the adequacy of emergency preparedness, the States' own expertise in disaster preparedness and in coordinating a public response is also important. Accordingly, the rationale for preemption suggested in Silkwood, i.e., a need for exclu-sive federal jurisdiction based upon the Commission's unique expertise, does not exist with respect to offsite emergency planning issues.

(2) The NRC Authorization Acts With respect to the NRC Authorization Acts, the Appeal Board found l

that those enactments permitted utilities to submit their own emergency l plans for review when state or local governments refused to do so. The Appeal Board further found, however, that despite Congress' awareness that some State or local governments might be unable or unwilling to j participate in emergency planning, Congress declined to decide whether State actions which impede the implementation of an emergency plan should

. be deemed preempted by federal law (ALAB-818, slip op. at 24). lipon c a review of the Authorization Acts' legislative history (Id., at 24-29),

o i

the Appeal Board correctly determined that Congress had not demonstrated the requisite " clear and manifest" intent to preempt state laws which were enacted within the States' historic police powers, where those laws might impede the implementation of an emergency plan. LILCO's challenge to these determinations is unsupported.

5 I

o (3) The History of the Shoreham Proceeding LILC0 contends that the Appeal Board's decision is inconsistent with certain events which transpired during the course of this proceeding --

principally, determinations by the Commission to permit the proceeding to go forward in the face of County and State refusals to participate in emergency planning. According to LILCO, if the Commission was in agree-ment with the County's legal authority argument, " logic" would have com-pelled it to terminate the proceeding before now (Petition at 10).

Howevar, the legal authority argument has never, until now, squarely been presented for Commission review. The Commission's earlier decisions in CLI-83-13 and CLI-83-17 did not decide this issue, and they do not compel the " logical" conclusions now propounded by LILCO.

(4) Due Process LILC0 asserts that the Appeal Board's decision gives rise to "seri-ous due process problems" and could, if it leads to a denial of LILC0's license application, " amount to a taking without just compensation" (Petition, at 11). These arguments, however, are not properly before the Commission 2 in that (a) they are outside the scope of issues decided by the Licensing Board and Appeal Board, and (b) LILCO failed to raise these matters in its arguments before the Appeal Board. See 10 C.F.R.

. 62.786(b)(4)(iii).

(5) LILCO's " Realism" Araument l LILC0 briefly asserts the Appeal Board's requirement that there be advance cooperation and collaboration between entities who will respond to a radiological emergency " compounds the legal authority problem" (Petition, at 12) -- presumably a reference to the fact that even if preemption were found to exist, LILC0 might fail to obtain a favorable l

l

reasonable assurance finding. Even if true, this assertion fails to provide a basis for Commission review of ALAB-818.

(6) Other Matters LILC0 asserts that Commission review of ALAB-818 is required to avert a denial of LILC0's operating license application, to remove an obstacle to the conduct of an emergency planning exercise at Shoreham, to avoid giving other States and local governments a veto power over the operation of nuclear power plants, and to restrict further erosion of the Commission's exclusive jurisdiction to regulate nuclear power. Re-gardless of whether the Appeal Board's decision will result in the dire consequences predicted by LILCO, one thing is clear: Only Congressional action, and not Commission review of ALAB-818, can ameliorate the situa-tion. As stated by the Appeal Board (ALAB-818, slip op. at 33-34) :

[F]ederal law does not override enforcement of the statutes of the State of New York that impede or fore-close LILCO from presenting a viable emergency plan to the Commission for review. If the current state of the law frustrates LILC0 by giving the state an eleventh hour veto over the operation of the Shore-ham reactor, the remedy lies in the legislative arena.

CONCLUSION For the reasons set forth above, the Staff submits that LILC0's

. Petition for review of ALAB-818 shoulo be denied.

Respectfully submitted, M bd Sherwin E. Turk Deputy Assistant Chief Hearing Counsel Dated at Bethesda, Maryland this 18th day of November, 1985