ML20149K997

Reply of Suffolk County,State of Ny & Town of Southampton to NRC Staff Response to Lilco Motion for Summary Disposition of Contentions 1,2 & 9 - Immateriality.* Certificate of Svc Encl

ML20149K997
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	02/18/1988
From:	Latham S, Mcmurray C, Zahnleuter R KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20149K959	List: ML20149K956 ML20149K997
References
OL-3, NUDOCS 8802240063
Download: ML20149K997 (12)

Text

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t DOCKCTED February $870 1988 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety U td r > Si E, and Licensino B8fffd g ,U C

)

In the Matter of )

LONG ISLAND LIGHTING COMPANY

) Docket No. 50-322-OL-3

) (Emergency Planning)

)

(Shoreham Nuclear Power Station, )

Unit 1) )

)

REPLY OF SUFFOLK COUNTY, THE STATE OF NEW YORK, AND THE TOWN OF SOUTHAMPTON TO THE NRC STAFF RESPONSE

'10 CONTENTIONS LILCO'S MOTION 1, FOR

SUMMARY

DISPOSITION OF 2, AND 9 -- IMMATERIALITY Pursuant to 10 C.F.R. $2.749(a), Suffolk County, the State of New York, and the Town of Southampton (the "Governments")

hereby reply to new facts and arguments contained in the NRC Staff's Response to LILCO's Motion for Summary Disposition of Contentions 1, 2, and 9 -- Immateriality (February 2, 1988) (the "Staff Response").1/ For the reasons set forth below, the Board should reject the Staff's Response and deny LILCO's Motion.

1/ On February 4, counsel for the NRC Staff sent a letter to the Board, with copies to the parties, stating that the copies of the Staff's Response served on February 2 were defective in that there were two pages missing. Corrected copies were provided with the NRC Staff counsel's February 4 letter. Counsel for the County never received the Staff's Februar y 2 filing. The of New York did, but with pages missing. Accordingly, the State Governments have computed their time for reply from the February 4 service date of the Staff's second filing.

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At the outset, the Governments note that the Staff's Response is unpersuasive and largely irrelevant for at least three basic reasonc. First, the Staff virtually ignores the key issue in a motion for summary disposition -- that is, whether there are factual issues in dispute. Rather than address this issue, the Staff merely makes conclusory statements in support of LILCO's contention that the absence of any means of implementing traffic control in the event of a Shoreham emergency requiring evacuation is not material. In taking this approach, the Staff turns a blind eye to the facts which are in dispute, as set forth in detail in the Governments' Fahruary 1 Opposition.2/ The Staff's refusal to recognize that there are factual issues in dispute does not eliminate those issues; they still exist and must be resolved before there can be a decision on the merits of LILCO's immateriality claims.

Second, the Staff's blind support for LILCO's Motion falls to recognize or address the NRC case law cited in the Governments' Opposition. That case law plainly demonstrates that I there is, "[a]rguably no more critical item in emergency planning" than traffic control which holds a "unique level of importance" because it assures "the proper development of the range of protective responses recommended by NUREG 6654. . . .

Pennsv1vania Power and Liaht Co._ (Susquehanna Steam Electric 3/ Opposition of Suffolk County, the State of New York and the Town of Southampton to LILCO's Motion for Summary Disposition of Contentions 1, 2 and 9 -- Immaterially (February 1, 1988) (the "Governments' Response").

l Station, Units 1 and 2), LBP-82-30, 15 NRC 771, 796 (1982). 111 1112 this Board's Partial Initial Decision ("PID"), 21 NRC 644, 917 (1985) (abandoning traffic control would be contrary to 10 CFR $$ 50.47(a)(1) and (b)(10).and "federal guidance") and ALAB-818, 22 NRC 651, 677 (1985) ("something more'is needed than an aspiration that the public will be able to fend for itself in the event an evacuation is required").

Third, the Staff's Response is both confused and confusing in that it rests almost entirely on the prior evacuation time estimates set forth in Revision 3 of the LILCO Plan and on the Board's findings in the PID regarding those prior estimates. Egg Staff Response at 5-6, 7-8. In doing so, the Staff virtually ignores the fact that LILCO's Motion is predicated on revised estimates which present new factual issues.3/ Thus, much of the Staff's Response is simply irrelevant to the issues at hand.

The Governments will not dwell further on the above general observations as the Staff's Response utterly fails to undercut the main point of the Governments' Opposition -- that there are material facts in dispute which must be resolved before the matter can be decided. The Governments must, however, respond to 3/

In particular, the Staff quotes at length and highlights findings from the PID with respect to the nature of the Revision 3 time estimates and the insensitivity of those estimates to noncompliance 6, 7-8.

with the prescribed routing. Staff Response at 5-The Staff completely ignores the fact that LILCO's revised time estimates are now sensitive to noncompliance. Ett oenerally, Governments' Opposition.

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a few specific points raised by the Staff which require further attention.

CONTENTIONS 1 AND 2 In footnote eight of its Response, the Staff makes the baseless assertion that:

The non-cooperation of local governments in plan-

! ning or carrying out strategies of guiding traffic or controlling roadways, of itself, forecloses these the a authorities from raising questions concerning gies.ppropriateness Ett CLI-86-13, 24 forNRC the need at 33,for 10 these CFR strate-S 50.47(c)(1)(iii)(B); 52 Fed. Reg. 42,084-85 (Nov. 3, 1987).

This assertion is nothing short of absurd. None of the cited authorities even suggest the preposterous notion that the Govern-ments are precluded from raising inadequacies in LILCO's Plan if they choose, in the lawful exercise of their police powers, not to participate in that Plan. In essence, the Staff seeks to foreclose the Governments from asserting their rights under the Atomic Energy Act and the NRC's regulations to dispute the adequacy of LILCO's Plan and to bring to the Board's attention LILCO's failure to meet NRC regulations and guidance. No authority supports that proposed violation of the Governments' rights and the Board should accordingly dismiss the Staff's argument as ill-conceived and unworthy of even hiding in a footnote.

t

- l In addition, the Staff offers the Affidavit of Thomas ,

Urbanik which is largely irrelevant to the central issue of whether there are facts in dispute. To the extent that i i

Dr. Urbanik endorses LILCO's Revision 5 time estimates, he fails l

to rebut the fact that numerous factual issues remain regarding i the derivation, accuracy and significance of those new times.

Egg Government's Opposition at 8-13, 16-18, 26-34 and i

accompanying affidavits.

In short, Dr. Urbanik's general agreement with LILCO does not alter the fact that there are  !

genuine issues of material fact in dispute between the parties.

Dr. Urbanik also o,innes on the alleged intent of NUREG 0654, j App. 4 stating that The intent of NUREG 0654, App. 4 is to identify potential traffic control strategies for considera-tion by local authorities. There is no intent in

' the gu:, dance of NUREG 0654 to require local authorities to implement strategies they believe to be inappropriate. The intent is to identify strategies which are potentially effective n aiding evacuation, and are also within the re-4, sources of local authorities.

i

Urbanik Affidavit, 1 9.

It is difficult to discern exactly what point Dr. Urbanik is making here and he offers no basis for the alleged "intent" behind NUREG 0654. To the extent he is arguing that traffic control is not a requirement under NUREG 0654 and the Commission's regulations, the Governments plainly dispute that assertion on the basis of the legal authority cited above and in the Governments' Opposition. Dr. Urbanik cites no

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contrary authority. Furthermore, his statement that NUREG 0654 does not compel local authorities to implement strategies they do not believe are appropriate misses the point. Section 50.47(b)(10) requires that LILC) be capable of implementing a range of protective actions and NRC case law recognizes that traffic control is a key element to assure that such a range can be offered. Without traffic control, there is no compliance with the NRC's regulations.

Because LILCO has no legal authority to implement traffic control, there are now no available means for traffic control in the event of a radiological emergency at Shoreham.

Rather, the public would be left to fend for itself in an evacuation, a state of af fairs found unacceptable in ALAB-818 and which renders LILCO's Plan inadequate.1/

CONTENTION 9 With respect to Contention 9, the Staff responds as if the Board's September 17, 1987 Memorandum and Order, LBP-87-26, were never issued. Rather, the Staff cites to the PID, notes that the PID ruled in LILCO's favor on the merits of LILCO's fuel dis-tribution plan, and notes further that the Board found that tne 1/ Likewise, Dr. Urbanik's attempt to distinguish between an "uncontrolled" and an "unplanned" evacuation is baseless. The Appeal Board has already concluded that it is not enough simply to let the public fend for itself -- whether or not members of the public may have been told at some time in the past what routes they should take from the EPZ.

For the reasons set forth in the testimony publishing cited in the Governments' Opposition, simply compliance. proposed routes will not alone assure route "planned." Under such circumstances, an evacuation would not be Egg Governments' Opposition at 9 n.3, 28-29.

Rev. 3 estimates were not affected by rcadway impediments. On this basis, the Staff concludes that the absence of fuel dis-tribution is immaterial.

The Staff, however, cannot ignore the Board's concerns regarding fuel distribution which were expressed in the September 17, 1987 Memorandum and Order at 39:

l l

[W]e regard the subject of Contention 9 as a safety feature. It is presently unclear how l

this safety feature would function, or, in-i deed, whether it would function at all. We cannot grant summary disposition.

In addition, the Staff ignores the fact that Revision 5 changes the factual context of the issue. OPIP 3.6.1 of Revision 5 states that LILCO's revised time estimates are now sensitive to roadway impediments. While the extent of the sensitivity is not clear from LILCO's Plan or the sparse information now available to the Governments on the Revision 5 time estimates, it is clear now that factual issues exist regarding the extent of such sensitivity, how it will affect evacuation times, whether nega-tive dose savings will result, and similar issues which must be resolved before the Board can reach the merits of LILCO's immateriality argument. Egg Governments' Opposition, at 14-16, 32-34. Accordingly, summary disposition is not appropriate on

, this issue at this time.

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O CONCL!JS1QN For the foregoing reasons, the Steff's Response should be rejected and LILCO's Motion should be denied.

Respectfully submitted, E. Thomas Boyle Suffolk County Attorney Building 158 North County Complex veterans Memorial Highway Hauppauge, New York 11788 4L s a rence Coe Lanpher f Christopher M. McMurray f KIRKPATRICK & LOCKHART 1800 M Street, N.W.

South Lobby - 9th Floor Washington, D.C. 20036-5891 Attorneys for Suffolk County Fabian G. Pa ino

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Richard J. Za nieu er Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 Capital Building Albany, New York 12224 Attorneys for Mario M. Cuomo Governor of the State of New York a

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/2 h Stepfier A. Latham m

/

fx Twomey, Latham & Shea ,

i 33 West Second Street '

Riverhead, New York 11901

(

Attorney for the Town of '

Southampton  ;

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1 00tKETED U5NRC February 1", 1988 10 F8 22 P4 :08 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFlc[ g; 3[.j t w <

00CKlit4G A SEnvicE Before the Atomic Safety and Licensino Board BRANCH

)

.n the Matter of )

)

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

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of COVERNMENTS' RESPONSE TO "LILCO'S MOTION TO STRIKE INTERVENORS' UNAUTHORIZED REPLY TO NRC STAFF'S RESPONSE TO LILCO'S HOSPITAL

SUMMARY

DISPOSITIOM MOTION" and REPLY OF SUFFOLK COUNTY, THE STATE OF NEW YORK, AND THE TOWN OF SOUTHAMPTON TO THE NRC STAFF RESPONSE TO LILCO'S MOTION FOR

SUMMARY

DISPOSITION OF CONTENTIONS 1, 2, AND 9 -- IMMATERIALITY have been served on the following this 18th day of February 1988 by U.S. mail, first class. Cop' will be served on the members of the Licensing Board by hand vlivery on February 19, 1988.

James P. Gleason, Chairman Mr. Frederick J. Shon Atomic Safety and Licensing Board Atomic Safety and Licensing Board 513 Gilmoure Drive U.S. Nuclear Regulatory Commission Silver Spring, Maryland 20901 Washington, D.C. 20555 Dr. Jerry R. Kline William R. Cumming, Esq.

Atomic Safety and Licensing Board Spence W. Perry, Esq.

U.S. Nuclear Regulatory Commission Office of General Counsel Washington, D.C. 20555 Federal Emergency Management Agenc) 500 C Street, S.W., Room 840 Washington, D.C. 20472 a

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Fabian G. Palomino, Esq. W. Taylor Reveley, III, Esq.

Richard J. Zahleuter, Esq. Hunton & Williams Special Counsel to the Governor P.O. Box 1535 Executive Chamber, Rm. 229 707 East Main Street State Capitol Richmond, Virginia 23212 Albany, New York 12224 Joel Blau, Esq. Anthony F. Earley, Jr., Esq.

Director, Utility Intervention General Counsel N.Y. Consumer Protection Board Long Island Lighting Company Suite 1020 175 East Old Country Road Albany, New York 12210 Hicksville, New York 11801 E. Thoma9 boyle, Esq. Ms. Elisabeth Talbbi, Clerk Suffolk County Attorney Suffolk County Legislature Bldg. 158 North County Complex Suffolk County Legislature Veterans Merdorial Highway Office Building Hauppauge, New York 11788 Veterans Memorial Highway Hauppauge, New York 11788 Mr. L. F. Britt Stephen B. Latham, Esq.

Long Island Lighting Company Twomey, Latham & Shea Shoreham Nuclear Power Station 33 West Second Street North Country Road Riverhead, New York 11901 Wading River, New York 11792 Ms. Nora Bredes Docketing and Service Section Executive Director Office of the Secretary Shoreham Opponents Coalition U.S. Nuclear Regulatory Comm.

195 East Main Street 1717 H Street, N.W.

Smithtown, New York 11787 Cashington, D.C. 20555 Alfred L. Nardelli, Esq. Hon. Patrick G. Halpin Assistant Attorney General Suffolk County Executive New York State Department of Law H. Lee Dennison Building 120 Broadway Veterans ..emorial Highway Room 3-118 Cauppauge, New York 11788 New York, New York 10271 MHB Technical Associates Dr. Monroe Schneider 1723 Hamilton Avenue North Shore Committee Suite K P.O. Box 231 San Jose, California 95125 Wading River, New York 11792 Mr. Jay Dunkleburger Edwin J. Reis, Esq.

New York State Energy Office George E. Johnson, Esq.

Agency Building 2 U.S. Nuclear Regulatory Comm.

Empire State Plaza Office cf General Counsel Albany, New York 12223 Washington, D.C. 20555 l

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David A. Brownlee, Esq. Mr. Stuart Diamond Kirkpatrick & Lockhart Business / Financial 1500 Oliver Building NEW YORK TIMES Pittsburgh, Pennsylvania 15222 229 W. 43rd Street New York, New York 10036 Douglas J. Hynes, Councilman Mr. Philip McIntire Town Board of Oyster Bay Federal Emergency Management Town Hall Agency Oyster Bay, New York 11771 26 Federal Plaza New York, New York 10278 Herbert H. Brown KIRKPATRICK & LOCKHART 1800 M Street, N.W.

South Lobby - 9th Floor Washington, D.C. 20036-5891

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