ML20136J361

Response Opposing Intervenor 851224 Motion for Cancellation of 860213 Emergency Planning Exercise.Recommends Motion Be Dismissed or Denied.Certificate of Svc Encl

ML20136J361
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	01/08/1986
From:	Sherwin Turk NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	NRC COMMISSION (OCM)
References
CON-#186-711 OL-3, NUDOCS 8601130343
Download: ML20136J361 (12)

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$f {fD UNITED STATES OF AMERICA 'gg NUCLEAR REGULATORY COMMISSION // -9 4,7, BEFORE THE COPNISSION In the Matter of 3

.LONG ISLAND' LIGHTING COMPANY' ) Docket No. 50-322-OL-3 (Emergency Planning)

(Shoreham Nuclear Power Station,

-2 . Unit 1)

NRC STAFF'S ANSWER TO INTERVENORS'

" MOTION FOR CANCELLATION OF EMERGENCY PLANNING EXERCISE" Sherwin E. Turk Deputy Assistant Chief Hearing Counsel f

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January 8, 1986 i

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Ik((!O UNITED STATES OF AMERICA *ee /4y,O t

NUCLEAR REGULATORY COMMISSION g.

- g/g28 BEFORE THE COMMISSION In the Matter of

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. LONG ISLAND LIGHTING COMPANY ') Docket No. 50-322-0L-3

) (Emergency Planning)

.(Shoreham Nuclear Power Station, )

Unit 1) )

NPC STAFF'S ANSWER TO INTERVENORS'

" MOTION FOR CANCELLATION OF EMERGENCY PLANNING EXERCISE" Sherwin E. Turk Deputy Assistant Chief Fearing Counsel January 8, 1986

UNITED STATES OF AMERICA ,

NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of

. LOMG ISLAND LIGilTING CONPANY Docket No. 50-322-OL-3 (Shoreham Nuclear Power Station.

Unit 1) .

NRC STAFF'S ANSWER TO INTERVEN0RS'

" MOTION FOR CANCELLATION OF l EMERGENCY PLANNING EXERCISE" On December 24, 1985, Intervenors Suffolk County, State of New York, and Town of Southampton ("Intervenors") filed their " Motion for Cancellatien of Emergency Planning Exercise" (" Motion"). Therein, the Intervenors urged the Commission to cancel the planned February 13, 1986 exercise of the Shoreham nuclear plant's offsite emergency plan, submitted by Applicant Long Island Lighting Company ("LILC0"). For the reasons set forth below, the the NRC Staff (" Staff") opposes the Intervenors' Notion and recommends that it be dismissed or denied.

INTRODUCTION On April 17, 1985, the Licensing Board issued a Partial Initial Decision ("PID")inwhichitresolvedmostoftheadmittedemergency planningcontentionsinthisproceeding.1/ On August 26, 1985, the l

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1/ LongIslandLightingCo.(ShorehamNuclearPowerStation, Unit 1),

! LBP-85-12,21NRC644(1985).

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Licensing Board issued its Concluding Partial Initial Decision ("CPID"),

in which it resolved the remaining emergency planning contention and rendered its " reasonable assurance" determination pursuant to 10 C.F.R. 9 50.47(a). 2/ An appeal from the PID was filed by the Intervenors, and appeals from the CPID were filed by both the Intervenors and LILCO. On October 18, 1985, the Appeal Board issued ALAB-818, in which it affirmed the Licensing Board's PID as to Contentions 1-10 (the " legal authority" issue.s), 3_/ and the Comission has now taken review of that decision. O Except as to the legal authority issues which were decided in ALAB-818, all other emergency planning issues decided by the Licensing Board are currently pending before the Appeal Board. 5/

On June 4,1985, the Comission suggested that the Staff request that the Federal Emergency Management Agency (FEMA) schedule an exer-cise of LILCO's offsite emergency plan for the Shoreham facility. 5/ On

-2/ Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),

LBP-85-31, 22 NRC 410 (August 26,1985).

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

ALAB-818, 22 NRC 651 (1985).

4/

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

"Orcer" dated December 19, 1985.

5/ Oral argument of the pending appeals has been consolidated and is scheduled to be held on February 12, 1986. See Hote to Messrs.

Bordenick, et al., from C. Jean Shcemaker, Secretary to the Appeal

- Board, dated December 31, 1985.

!/ Memorandum to William J. Dircks Executive Director for Operations, from Samutl J. Chilk, Secretary of the Commission, dated June 4, 1985 ("

Subject:

Scheduling of Emergency Plan Exercise for Shoreham").

Mr. Chilk's memorandum notes that Chairman Palladino and Commissioner Asselstine oisagreed with the majority's determination.

June 20, 1985, in accordance with the Comission's recommendation, the Staff requested that FEMA " schedule as full an exercise of the LILC0 Local Emergency Response Organization (LER0) plan as is feasible at the present time . . . ." M

' On October 29, 1985, FEMA responded to the Staff's request. M FEMA suggestedtwooptionsfortheconductofanexerciseoftheLEROplan,E

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7 Memorandum to Richard W. Krimm, Assistant Associate Director Office of Natural and Technological Hazards Programs (FEMA), from Edward L. Jordan Director, Division of Emergency Preparedness and Engi-neering Resporse (NRC), dated June 20, 1985; Memurandum to Samuel J. Chilk, Secretary of the Comission, from William J. Dircks.

Executive Director for Operations, dated June 20, 1985.

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Letter to William J. Dircks, Executive Director for Operations, from Samuel W. Speck, Associate Director, State and Local Programs andSupport(FEMA),datedOctober 29, 1985.

y FEMA identified the two options as follows:

Option 1 - This option would require that we set aside all functions and exercise objectives related to issues of authority and State and local partici-pation. Thus, only the functions outlined for LILCO would be exercised. Such an exercise is possible but its usefulness would seem very limited. An exercise of this type would not address questions such as those raised on pages 35 through 39 of the October 18 decision of the Atomic Safety and Licensing Appeal Board and would be redundant to actions already taken by NRC.

Option 2 - This option would include all functions and normal exercise objectives. This option would exercise Revision 5 of the LERO Plan. Exercise con-

- trollers would simulate the roles of key Otate or local officials unable or unwilling to participate.

It would be desirable that State and local government personnel actually play. However, such a simulation mechanism would at least test the utility's ability to respond to ad hoc participation on the part of State and local governments.

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l and requested clarification from the NRC as to the scope of the exercise l

! to be conducted. The Staff responded to FEMA on November 12, 1985. El In l t  !

its response, the Staff concluded that an exercise should be conducted consistent with FEMA's Option 2, and further stated as follows:

! Option 2 would include all functions and normal exercise [

objectives, recogni:ing that some offsite response roles  :

may be simulated. We believe that such an exercise I would be useful in the licensing process for Shoreham. l

!' In accordance with the NRC's request, FEMA has scheduled an exercise l of the Shureham LERO plan, to be held on February 13, 1986. Numerous  !

letters have been written by the Intervenors protesting the Comission's  ;

decit, ion to conduct an exercise of the LERO plan, M/ and on December 24, l 1985, the Intervenors filed their Motion seeking a cancellation of that exercise.

i DISCUSSION The Intervenors' Motion is defective for two fundamental reasons.

First, the Motion fails to raise an issue which is properly before the i

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10 LettertoSamuelW. Speck (FEMA)fromWilliamJ.Dircks, dated i November 12, 1985.

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11 See, _e.1. .' Letter to Chairman Palladino from Peter F. Cohalan, Iiiffolk County Executive, dated November 7,1985; Letter to the j Comissiun from Martin Bradley Ashare, Suffc1k Count Attorney,  ;

dated November 12, 1985; Letter to Samuel W. Speck, stociate  !

o Director, State and Local Programs and Support (FEMA), dated l November 12,1985; Letter to Samuel W. Speck (FEMA) from Martin  !

Lang, Supervisor, Town of Southampton, dated November 12,1985; i and Letter to the Comission from Mario M. Cuomo, Governor, State of New York, dated November 13, 1985. Other instances in which  !

the Intervenors have opposed the conduct of such an exercise are i cited in their Motion, at 2 n.2. .

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, Commission. As set forth above, the only emergency planning issues that are currently pending before the Commission are those issues related to Contentions 1-10 (the legal authority issues), decided by the Appeal Roard in ALAB 818. Those issues do not comprehend the question of whether the FEMA may conduct an exercise of the LFR0 plan, nor did the Intervennrs' admitted contentinns address the issue of whether

, an emergency planning exercise e,ould or should be conducted. Furthsr, the Intervenors have already requested, on numtrous occasions, that an exercise of the LERO plan not he conducted. The Motion, although it is dressed in the form of a legal pl ading, constitutes only the latest in a long series of requests that the exercise not be conducted. Notwith- ,

standing the form in which it has been filed, however, this most recent  !

recuest does not present an issue requiring Commission review any more than did the Intervenors' numerous prior letter requests that the exer-cisc not be conducted.

Secondly, the Commission has already determined that it is inter-ested in havirg FEMA conduct an exercise of the LERO plan. In its June 4, 1985 recommendation that the Staff request that FTPA schedule an exercise of the LEPO plan, the Commission indicated that it saw "no reason why LILCO should not be allowed to exercise those parts of its plan which it may legally exercise." The Conmission further stated that such an exercise could produce meaningful information:

o The Commission does not disagree with the view that an exercise of the LILCO plan could yield meaningful results, even though such an exercise may not satisfy all of the requirements of NRC's regulatfora. It could, as a minimum, identify the impact of the limi-tations of LILCO's plan when executed under the state and county restrictions. Although the Commission is ,

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. aware that because of the recent court decision a full exercise of the LILCO emergency plan may not be possible, the staff should request that FEMA schedule as full an exercise of the LILCO plan as is feasible and lawful at the present time.

FEMA has agreed that tne Commission might find that an exercise of the LERO plan could provide useful information for use in the licensing proces!.. In FEMA's letter of October 29,1985 FEMA took note of "the

. reluctance of county and State officials to participate in such an exer-cite," and indicated that, in view of the State court decision concerning LILCO'slackoflegalauthority,"[a3nyexercisewithoutparticipation by State and local governments would not allow us sufficient demonstra-tion to reach a finding of reasonable assurance." Nonetheless, FEMA concluded as follows:

However [the lack of participation by State and local governments) does not preclude the corduct of an exer-cise that would provide an indication to the . . . NRC as to utility onsite and offsite emergency capabilities.

We believe such a report would have value in decisions to continue the Ifcensing process or possibly provide a basis on which the NRC could make predictive findings.

Obviously, the value of such an exercise in the licens-ing process is a determination which can only be made by the NRC.

The Intervenors have failed to present sufficient grounds to support their request that the Commission reconsider its earlier determination to conduct an exercise of the LFR0 plan. Both the Commission and FEMA have recognited that an exercise of the Shoreham plan without State and County participation presents certain unique circumstances, and FEPA has indicated that the exercise may not provide sufficient information upon which a reasonable assurance detennination might be reached. However.

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as the Comission determined previously, useful information may nonethe-less be produced by an exercise of the LERO plan. Moreover, the Motion was filed six months af ter the Comission requested that an exercise be conducted. Even if the Motion had raised an issue appropriate for Comission review -- which it does not -- it is grossly out of time and should be rejected. E I CONCLU$!ON For the reasons set forth above, the Staff opposes the Intervenors' Motion and recommends that it be dismissed or denied.

Respectfully submitted,

,,,,,ffb i 5 /

Sherwin C. Turk Deputy Assistant Chief Hearing Counsel Pated at Octhesda, Marylend this 8th day of January, 1986 0

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12/ As the Comission is aware, the Suffolk County legislature recently enacted a local law concerning the conduct of emergency planning exercises in which the functfuns of Suffolk County officials may be simulated. in view of the fact that this development is not addressed in the Intervenors' Motien, the Staff does not here discuss the considerations raised by the Suffolk County law.

UNITED STATES OF AMERICA NllCLEAR REGULATORY COMMISSION PEFORE THE COMMISSION In the Hatter of

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

(ShorehamNuclearPowerStation, Ifnit 1)

CFPTIFICATE Of SFRVICE I hereby certify that copies of "NRC STAFF'S ANSWER TO INTERVENORS'

' MOTION FOR CANCELLATION Of EMERGENCY PLANNING DERCISE'" in the above-captioned proceeding have been served on the following by doposit in the linited States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 8th day of January, 1986.

Morton P. Margulics, Chairman

• Fabian G. Palomino Eso.

Administrative Judge Special Counsel to the Governor Atomic Safety and Licensing Board Executive Chamber U.S. Nuclear Regulatory Commission State Capitol Washington. 0.C. 20555 Albery, NY 12224 Dr. Jerry P. Kline* W. Taylor Reveley !!!, Esq.

Administrative Judge Hunton & W1111 ems Atomic Safety and Licensing Board 707 East Main Street U.S. Nuclear Pegulatory Commissier P.O. Box 1535 Washington, D.C. 20555 Richmond, VA 23212 Pr. Frederick J. Shon* Jonathan D. Feinberg, Esq.

Administrative Judge New York State Ocpartment of Atomic Safety and Licensing Board Public Service U.S. Nuclear Regulatory Commission Three Em) ire State Plaza Washington, D.C. 20555 Albany, 1Y 12223 Stephen D. Latham, Eso.

John F. Shea, !!!, Eso. Herbert H. Drown, Esq.

Twomey, Latham A Shea 1awrence Coe Lanpher, Esq.

Attorneys at Law karla J. Letsche, Esq.

P.O. Box 390 Kirkpatrick & Lockhart 33 West Second Street 1900 M Street, N.W.

Riverhead, NY 11901 8th Floor Washington, D.C. 20036

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,, Atomic Safety and Licensing Board Panel

• Donna D. Duer Esq.*

U.S. Nuclear Regulatory Commission Attorney Washington, D.C. 20555 Atomic Safety and Licensing Board Panel  ;

Atomic Safety and Licensing U.S. Nuclear Regulatory Commission i Appeal Board Panel

• Washington, D.C. 20555 i U.S. Nuclear Regulatory Commission i Washington, DC 20555 Dr. Monroe Schneider '

, North Shore Committee P.O. Box 231 Docketing and Service Section* Wading River, NY 11792  :

. Office of the Secretary U.S. Nuclear Regulatory Commission Stewart M. Glass, Esq. <

Washington, D.C. 20555 Regional Ccunsel  !

Federal Emergency Management '

Spence Perry, Esq. Agency Associate General Counsel 26 Federal Plaza ,

Federal Emergency Management Agency Room 1349 l Room 840 New York, NY 10278 ,

500 C Street, S.W.  ;

Washington, D.C. 20472 Robert Abrams, Eso. '

Attorney General of the State

& Cerald C. Crotty, Esq. of New York Ben Wiles Esq. Attn: Peter Bienstock, Esq.

Cour.sel to the Governor Department of Law .

Executive Chamber State of New York  !

State Casitol Two World Trade Center  !

Albany, 4Y 12224 Room 46-14 ,

New York, NY 10047 Edward M. Barrett Esq. MH8 Technical Associates General Counsel 1723 Hamilton Avenue -

Long Island Lighting Company Suite K 250 Old County Road San Jose, CA 95125 Mineola, NY 11501 Hon. Peter Cohalan Martin Bradley Ashare. Esq.

Suffolk County Executive Suffolk County Attorney County Executive / Legislative 81dg. H. Lee Dennison Building Veteran's Memorial Highway Veteran's Memorial Highway Hauppauge, NY 11788 Hauppauge, NY 11788 D Mr. Martin Suubert c/o Congressman William Carney -

1113 Longworth House Office Building Washington, D.C. 20515

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t Mr. Jay Dunkleberger -- - Ms. Nora Bredes New York State Energy Office Shoreham Opponents Coalition Agency Building 2 195 East Main Street Empire State Plaza Smithtown, NY 11787 Albany, New York 12223 i 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

= Brookhaven Town Attorney Sarruel J.- Chilk 475 E. Main Street Office of the Secretary

-Patchogue, NY 11772 t- U.S. Nuclear Pegulatory Commission Washington, DC 20555

.. i Herzel H.E. Plaine Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, DC 20555 s

t kGtwlq 5 l' Sherwin E. Turk r e 3

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