ML20148D194
| ML20148D194 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 01/15/1988 |
| From: | Johnson G NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20148D135 | List: |
| References | |
| OL-3, NUDOCS 8801250344 | |
| Download: ML20148D194 (5) | |
Text
01/15/88 O
DOCKETED USHRC UNITED STATES OF AMERICA NUCLEAR P.EGULATORY COMMISSION
'88 JAN 21 A10:55 BEFORE THE ATOMIC SAFETY AND LICENSING BOARr[60 MEih'hylrk G
ERANCH In the Matter of
)
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LONG ISLAND LIGHTING COMPANY
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Docket No. 50-322-OL-3
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(Emergency Planning)
(Shoreham Nuclear Power Station,
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Unit 1)
)
NRC STAFF RESPONSE TO LILCO MOTION FOR
SUMMARY
DISPOSITION WITH REf PECT TO COMPLI ANCE WITH SECTION 50.47(c)(1)(i)5(ii) 1.
INTRODUCTION On December 18, 1987, Applicant filed "LILCO's Motion for Summary Disposition of Contentions 1-10 With Respect to 10 C.F.R. 5 50.47(c)(1)(i) and (11)" ("Motion").
By its Memorandum and Order dated December 28, 1987, the Licensing Board extended to January 18, O the date for all party responses to the Motion.
1988 The Motion seeks a ruling by the Licensing Board that LILCO has complied with Section 50.47(c)(1)(i) and (11) of the new emergency planning regulation addressing the nature of the emergency planning findings necessary where state and/or local non-participation in planning requires review of a utility-only offsite emergency pla n.
The new regulation provides, in pertinent part:
Where an applicant for an operating license asserts l
that its inability to demonstrate compliance with the l
requirements of paragraph (b) of [Section 50.47]
1/
By operation of 10 C.F.R. 6 2.710, the due date becomes January 19, 1988, because January 18, 1988 is a legal holiday.
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8801250344 890115 l
PDR ADOCK O y2 0
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results wholly or substantially from the decision of state and/or local governments not to participate further in emergency planning, an operating license may be issued if the applicant demonstrates that:
(i) The applicant's inability to comply with the requirements of paragraph (b) of [Section 50.47] is wholly. or substantially the result of the non-participation of state and/or local governments.
(ii) The applicant has made a sustained, good faith effort to secure and retain the participation of the pertinent state and/or local governmental authorities, including the furnishing of copies of its emergency plan.
(ill)
The applicant's emergency plan provides reasonable assurance that public health and safety is not endangered by operation of the facility concerned...
The motion for summary disposition has been filed by LILCO in anticipation of a challenge by Intervenors to LI LCO's compilance with subparagraphs (i) and (ii).
Motion at 2.
Inasmuch as the Licensing Board, in adjudicating the legal authority / realism issues pursuant to the new rule, is required to make findings on these subparagraphs, it is appropriate, under 10 C.F.R.
Section 2.749(a) for LILCO to seek "a decision by the presiding officer as to all or any part of the matters involved in the proceeding."
As discussed below, LILCO has persuasively demonstrated that there l
l Is no genuine issue as to any fact material to the findings required by
(
Se-ction 50.47(c)(1)(l) and (ii), and that it is entitled to favorable findings on these issues as a matter of law.
10 C.F.R. Section 2.749(d),
i
I
. i ll.
DISCUSSION A.
Whether LILCO's inability to Comply with Section 50.47(b) is Wholly or Substantially the Result of Government Non-participation in Planning As noted by LILCO in its Motion, at 4-5, the Licensing Board expressly found in the Concluding Partial Initial Decision on Emergency Planning, LB P-85-31, 22 NRC 410, 431 (1985), that the LILCO Plan was "fatally defective" because of LILCO's lack of authority to carry out certain essential features of the plan, and because the opposition of the State and County to the plan "created a situation where at any given time it is not known whether the Plan would be workable." Id.
In the Partial Initial Decision, LBP-85-12, 21 NRC 644, 649 (1985), the Licensing Board recounted efforts of the County to terminate this proceeding based on its unilateral decision not to adopt or implement an emergency plan for Shoreham.
I d_.
The Board also noted there that the State of New York later joined in opposing implementation of the LILCO Plan.
,ld. at 650.
The effect of these Licensing Board decisions is to establish that the inability of LlLCO to satisfy the emergency planning requirements for licensing (including numerous provisions of Section 50.47(b)) is derived in substantial part from the refusal of the County and State to participate in planning for an emergency at Shoreham.
Through the lengthy course of appeals of these initial decisions, this basis for LILCO's inability to satisfy the regulations has not been upset.
Even in reversing the Licensing Board's finding that the LILCO Plan was "fatally defective," the Commission recognized that it was "legally obligated to consider whether a
. utility plan, prepared without government cooperation, can pass muster under 10 C.F.R. 5 50.47(c) notwithstanding noncompliance
_q_
e with the NRC's ' detailed planning standards..." CLl-86-13, 24 NRC 22, 29 (1986).
As a result, it is the law of the case that LILCO has been unable to comply with the regulatory planning standards in Section 50.47(b) wholly or substantially because of State and local government non participation in planning.
Summary disposition in favor of Applicant must be granted as to subparaaraph (i) of Section 50.47(c)(1).
B.
Whether LILCO Has Demonstrated Compliance with Section 50.47(c)(1)(ll) in its Motion, LILCO sets out in great detall its efforts to obtain the cooperation of the County and the State, including providing copies of the LILCO Plan.
I d,. at E-14.
The facts set out support the finding under subparagraph (ii) of a sur,tained, good faith effort to secure and retain governmental participation.
However, given the continuing and e
steadfast refusal of these governments to participate in planning, as evidenced in virtually every Intervenor filing over the last several years, far less effort would still have been sufficient to demonstrate good faith j
l efforts as contemplated by subparagraph (11).
In face of local legislation making participation in planning unlawful, and statements by the County Executive and State Governor that they will not implement the LILCO f
f Plan, it should be sufficient that LILCO submitted a series of plans, I
rejected by the Licensing Board, providing for participation of State and local governments in emergency response.
See, PID, 21 NRC at 649, 650, 898-899; CLI-86-13, 24 NRC at 29 n.9.
i Whethet based on the evidence presented by LILCO in its Motion, or on facts which must be deemed to be established by virtue of their 1
I i
o l-n
adoption by various adjudicatory bodies sitting in this proceeding, 2_/ the Licensing Board should find that applicant has undertaken the good faith efforts to secure and retain participation in planning by state and local governments as called for in Section 50.47(c)(1)(ll).
111.
CONCLUSION LILCO's Motion should be granted.
Res tfully submitted rge
. Joh n
Counsel for N.C Staff.
Dated at Bethesda, Maryland this 15th day of January,.1988 l
l l
(
2/
Intervenors' rece!pt of copies of the LlLCO Plan was deemed admitted
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by the Licensing Board in its Memorandum and Order, dated September 17,1987, at 43, ruling on LILCO's Second Renewed Motion for Summary Disposition.
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